Municipal corporations are, in every essential, only auxiliaries
of the state for the purposes of local government. They may be
created, or, having been created, may be destroyed, or their powers
may be restricted, enlarged, or withdrawn at the will of the
legislature, subject only to the fundamental condition that the
collective and individual rights of the people of the municipality
shall not thereby be destroyed.
The building of a highway, whether done by the state directly or
by one of its instrumentalities -- a municipality -- is work of a
public, not private, character.
It is within the power of a state, as guardian and trustee for
its people and having full control of its affairs, to prescribe the
conditions upon which it will permit public work to be done on
behalf of itself or its municipalities.
In the exercise of these powers, it may by statute provide that
eight hours shall constitute a day's work for all laborers employed
by or on behalf of the state or any of its municipalities, and
making it unlawful for anyone thereafter contracting to do any
public work to require or permit any laborer to work longer than
eight hours per day except under certain specified conditions and
requiring such contractors to pay the current rate of daily wages.
And one who, after the enactment of such a statute, contracts for
such public work is not by reason of its provisions deprived of his
liberty or his property without due process of law nor denied the
equal protection of the laws within the meaning of the Fourteenth
Amendment, even though it appear that the current rate of wages is
based on private work where ten hours constitute a day's work or
that the work in excess of eight hours per day is not dangerous to
the health of the laborers.
Quaere whether a similar statute applicable to laborers
on purely private work would be constitutional, not decided.
This case involves the validity under the Constitution of the
United States of the statute known as the Eight-Hour Law of Kansas
of 1891, c. 114, being §§ 3827, 3828, and 3829 of the
General Statutes of 1901 of that state.
By the first section of that act, it was provided that
"eight hours shall constitute a day's work for all laborers,
workmen,
Page 191 U. S. 208
mechanics, or other persons now employed, or who may hereafter
be employed by or on behalf of the State of Kansas, or by or on
behalf of any county, city, township, or other municipality of said
state, except in cases of extraordinary emergency which may arise
in time of war, or in cases where it may be necessary to work more
than eight hours per calendar day for the protection of property or
human life: provided, that in all such cases, the laborer, workmen,
mechanics, or other persons so employed and working to exceed eight
hours per calendar day shall be paid on the basis of eight hours
constituting a day's work: provided further, that not less than the
current rate of
per diem wages in the locality where the
work is performed shall be paid to laborers, workmen, mechanics,
and other persons so employed by or on behalf of the State of
Kansas, or any county, city, township, or other municipal of said
state, and laborers, workmen, mechanics, and other persons employed
by contractors or sub-contractors in the execution of any contract
or contracts within the State of Kansas, or within any county,
city, township, or other municipality thereof shall be deemed to be
employed by or on behalf of the State of Kansas or of such county,
city, township, or other municipality thereof."
The second section declared that
"All contracts hereafter made by or on behalf of the State of
Kansas, or by or on behalf of any county, city, township, or other
municipality of said state, with any corporation, person, or
persons, for the performance of any work or the furnishing of any
material manufactured within the State of Kansas, shall be deemed
and considered as made upon the basis of eight hours constituting a
day's work, and it shall be unlawful for any such corporation,
person, or persons to require or permit any laborer, workman,
mechanic, or other person to work more than eight hours per
calendar day in doing such work or in furnishing or manufacturing
such material, except in the cases and upon the conditions provided
in section 1 of this act."
The third section makes any officer of Kansas, or of any
Page 191 U. S. 209
county, city, township, or municipality of that state, or any
person acting under or for such officer, or any contractor with the
state, or any county, city, township, or other municipality
thereof, or other person violating any of the provisions of the
act, liable for each offense, and subject to be punished by a fine
of not less than $50 nor more than $1,000, or by imprisonment not
more than six months, or by both fine and imprisonment, in the
discretion of the court.
It may be stated that the act exempts existing contracts from
its provisions.
The present prosecution was under the above act, and was
commenced in one of the courts of Kansas.
The complaint in its first count charged that Atkin contracted
with the municipal corporation of Kansas City to do the labor, and
furnish all materials for the construction of a brick pavement upon
Quindaro Boulevard, a public street of that city, and having hired
one George Reese to shovel and remove dirt in execution of the
work, did knowingly, willfully, and unlawfully permit and require
him to labor ten hours each calendar day upon said work, there
being no extraordinary emergency arising in time of war, nor any
necessity for him to labor more than eight hours per day for the
protection of property or of human life.
The second count contained the same allegations as to the
general nature of Atkin's contract, and charged that he unlawfully
hired Reese to labor on the basis of ten hours as constituting a
day's work by contracting to pay the current rate of wages, which
in that locality was the sum of $1.50 per day, and unlawfully
exacted and required of him that he labor ten hours each calendar
day in order to be entitled to the current wages of $1.50 per day,
there being no extraordinary emergency arising in time of war, nor
any necessity for him to labor more than eight hours for the
protection of property or of human life.
The defendant moved to quash each count upon the grounds, among
others, that the statute in question, in violation of the
Page 191 U. S. 210
first section of the Fourteenth Amendment to the Constitution of
the United States, deprived him of his liberty and property without
due process of law, and denied him the equal protection of the
laws.
The motion to quash was overruled, and the case was heard upon
an agreed statement of facts.
It appears from that statement that the parties stipulated, for
the purposes of the case, that Kansas City was under a duty to keep
its streets and highways in repair and make all contracts to grade
and pave them and for all other public improvements within its
limits; that the defendant entered into a contract with the city to
construct a pavement on Quindaro Boulevard, a public highway in
that city, and employed, among others, one George Reese to perform
the labor of shoveling and removing dirt in the prosecution of that
work; permitted him to work more than eight hours on each calendar
day, although there was no extraordinary emergency arising in time
of war, nor any necessity that he or any other person engaged on
the work should work more than eight hours for the protection of
property or human life; that the agreement with Reese was to pay
$.15 per hour, and no more, the current rate of wages for such work
in that locality being $1.50 for ten hours' labor per day, and that
the defendant exacted and required of him that he work ten hours
each calendar day, in order to be entitled to the current wages of
$1.50 per day; that, if the contractor had been compelled to pay
Reese and other laborers at the rate of $1.50 per day for eight
hours' work, his compensation would have been diminished by $100;
that Reese was not compelled, required, or requested to work more
than eight hours in any one day, but did so voluntarily, and was
permitted and allowed to work ten hours in each calendar day in
order to earn $1.50 in a calendar day; that he was employed at his
own solicitation, and entered into the agreement with Atkin freely,
and worked at the time and place mentioned in the complaint with
the knowledge, consent, and permission of defendant; that it was
not the
Page 191 U. S. 211
intention, expectation, desire, or agreement of Reese or of the
defendant that the former should ask, demand, or receive the same
compensation for eight hours' work as was paid for ten hours' work
each calendar day to laborers doing the same kind of work for
persons having contracts with private persons or corporations; that
he was hired and employed without the knowledge or consent of the
city, and neither the city nor its officers had or exercised any
control or supervision over him, he being the servant of the
defendant, and not of the city, and that the contract between the
defendant and the city did not contain any provision as to the
number of hours laborers should work in a calendar day, nor any
provision as to their compensation, but left the contractor free as
to the means and manner of performing his contract.
It was also stipulated that the labor performed by Reese was
healthful outdoor work, not dangerous, hazardous, or in any way
injurious to life, limb, or health, and could be performed for a
period of ten hours during each working day of the week without
injury from so doing, and that the labor he was employed to perform
and did perform
"was in no respect or manner more dangerous to the health or
hazardous to life or limb or to the general welfare of the said
George Reese or other persons doing such work than the labor
performed by persons doing the same kind of or character of work as
the employees or [of] contractors having contracts to do the same
kind of work for private persons, firms, or corporations, or as the
servants of private persons, firms, or corporations."
It was further stipulated that the work of shoveling and
removing dirt in the construction of a pavement was in all respects
the same whether the pavement be constructed for a city or other
municipality or for a private person, firm, or corporation.
Such was the case presented for the determination of the trial
court.
The prosecution resulted in a judgment against the defendant,
and he was sentenced to pay a fine of $50 on each
Page 191 U. S. 212
count of the complaint. Motions in arrest of judgment and for
new trial having been denied, the case was taken to the Supreme
Court of Kansas, which affirmed the judgment, and sustained the
validity of the statute.
Page 191 U. S. 218
MR. JUSTICE HARLAN delivered the opinion of the Court.
The case has been stated quite fully in order that there may be
no dispute as to what is involved and what not involved in its
determination.
No question arises here as to the power of a state, consistently
with the federal Constitution, to make it a criminal offense for an
employer, in purely private work in which the public has no
concern, to permit or to require his employees to perform daily
labor in excess of a prescribed number of hours. One phase of that
general question was considered in
Holden v. Hardy,
169 U. S. 366, in
which it was held that the Constitution of the United States did
not forbid a state from enacting a statute providing -- as did the
statute of Utah there involved --
Page 191 U. S. 219
that in all underground mines or workings and in smelters and
other institutions for the reduction or refining of ores or metals,
the period of the employment of workmen should be eight hours per
day, except in cases of emergency, when life or property is in
imminent danger. In respect of that statute, this Court said:
"The enactment does not profess to limit the hours of all
workmen, but merely those who are employed in underground mines, or
in the smelting, reduction, or refining of ores or metals. These
employments, when too long pursued, the legislature has judged to
be detrimental to the health of the employees, and so long as there
are reasonable grounds for believing that this is so, is decision
upon this subject cannot be reviewed by the federal courts. While
the general experience of mankind may justify us in believing that
men may engage in ordinary employments more than eight hours per
day without injury to their health, it does not follow that labor
for the same length of time is innocuous when carried on beneath
the surface of the earth, where the operative is deprived of fresh
air and sunlight, and is frequently subjected to foul atmosphere
and a very high temperature, or to the influence of noxious gases,
generated by the processes of refining or smelting."
As already stated, no such question is presented by the present
record, for the work to which the complaint refers is that
performed on behalf of a municipal corporation, not private work
for private parties. Whether a similar statute applied to laborers
or employees in purely private work would be constitutional is a
question of very large import which we have no occasion now to
determine or even to consider.
Assuming that the statute has application only to labor or work
performed by or on behalf of the state, or by or on behalf of a
municipal corporation, the defendant contends that it is in
conflict with the Fourteenth Amendment. He insists that the
Amendment guarantees to him the right to pursue any lawful calling,
and to enter into all contracts that are proper, necessary, or
essential to the prosecution of such calling, and
Page 191 U. S. 220
that the statute of Kansas unreasonably interferes with the
exercise of that right, thereby denying to him the equal protection
of the laws.
Allgeyer v. Louisiana, 165 U.
S. 578;
Williams v. Fears, 179 U.
S. 270. In this connection, reference is made by counsel
to the judgment of the Supreme Court of Kansas in
Ashby's
Case, 60 Kan. 101, 106, in which that court said:
"When the eight-hour law was passed, the legislature had under
consideration the general subject of the length of a day's labor
for those engaged on public works at manual labor, without special
reference to the purpose or occasion of their employment. The
leading idea clearly was to limit the hours of toil of laborers,
workmen, mechanics, and other persons in like employments to eight
hours without reduction of compensation for the day's
services."
"If a statute," counsel observes,
"such as the one under consideration is justifiable, should it
not apply to all persons and to all vocations whatsoever? Why
should such a law be limited to contractors with the state and its
municipalities? . . . Why should the law allow a contractor to
agree with a laborer to shovel dirt for ten hours a day in
performance of a private contract, and make exactly the same act
under similar conditions a misdemeanor when done in the performance
of a contract for the construction of a public improvement? Why is
the liberty with reference to contracting restricted in the one
case and not in the other?"
These questions -- indeed, the entire argument of defendant's
counsel -- seem to attach too little consequence to the relation
existing between a state and its municipal corporations. Such
corporations are the creatures -- mere political subdivisions -- of
the state, for the purpose of exercising a part of its powers. They
may exert only such powers as are expressly granted to them, or
such as may be necessarily implied from those granted. What they
lawfully do of a public character is done under the sanction of the
state. They are, in every essential sense, only auxiliaries of the
state for the purposes of local government. They may be created,
or, having been
Page 191 U. S. 221
created, their powers may be restricted or enlarged or
altogether withdrawn at the will of the legislature; the authority
of the legislature, when restricting or withdrawing such powers,
being subject only to the fundamental condition that the collective
and individual rights of the people of the municipality shall not
thereby be destroyed.
Rogers v.
Burlington, 3 Wall. 654,
70 U. S. 663;
United States v. Railroad Co., 17 Wall. 322,
84 U. S.
328-329;
Mount Pleasant v. Beckwith,
100 U. S. 514,
100 U. S. 525;
State Bank of Ohio v.
Knoop, 16 How. 369,
57 U. S. 380;
Hill v. Memphis, 134 U. S. 198,
134 U. S. 203;
Barnett v. Denison, 145 U. S. 135,
145 U. S. 139;
Williams v. Eggleston, 170 U. S. 304,
170 U. S. 310.
In the case last cited, we said that
"a municipal corporation is, so far as its purely municipal
relations are concerned, simply an agency of the state for
conducting the affairs of government, and, as such, it is subject
to the control of the legislature."
It may be observed here that the decisions by the Supreme Court
of Kansas are in substantial accord with these principles. That
court, in the present case, approved what was said in
Clinton
v. Cedar Rapids & Missouri River R. Co., 24 Ia. 455, 475,
in which the Supreme Court of Iowa said:
"Municipal corporations owe their origin to, and derive their
powers and rights wholly from, the legislature. It breathes into
them the breath of life, without which they cannot exist. As it
creates, so it may destroy. If it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, if we can suppose it
capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the state, and the
corporation could not prevent it. We know of no limitation on this
right so far as the corporations themselves are concerned. They
are, so to phrase it, the mere tenants at will of the
legislature."
See also In re Dalton, 61 Kan. 257;
State ex Rel.
v. Lake Keon Co., 63 Kan. 394;
State ex Rel. v. Comm'rs of
Shawnee County, 28 Kan. 431, 433;
Frederick v.
Groshon, 30 Md. 436, 444.
The improvement of the boulevard in question was a work
Page 191 U. S. 222
of which the state, if it had deemed it proper to do so, could
have taken immediate charge by its own agents; for it is one of the
functions of government to provide public highways for the
convenience and comfort of the people. Instead of undertaking that
work directly, the state invested one of its governmental agencies
with power to care for it. Whether done by the state directly or by
one of its instrumentalities, the work was of a public, not
private, character.
If then the work upon which the defendant employed Reese was of
a public character, it necessarily follows that the statute in
question, in its application to those undertaking work for or on
behalf of a municipal corporation of the state, does not infringe
the personal liberty of anyone. It may be that the state, in
enacting the statute, intended to give its sanction to the view
held by many that, all things considered, the general welfare of
employees, mechanics, and workmen, upon whom rest a portion of the
burdens of government, will be subserved if labor performed for
eight continuous hours was taken to be a full day's work; that the
restriction of a day's work to that number of hours would promote
morality, improve the physical and intellectual condition of
laborers and workmen, and enable them the better to discharge the
duties appertaining to citizenship. We have no occasion here to
consider these questions or to determine upon which side is the
sounder reason, for whatever may have been the motives controlling
the enactment of the statute in question, we can imagine no
possible ground to dispute the power of the state to declare that
no one undertaking work for it or for one of its municipal agencies
should permit or require an employee on such work to labor in
excess of eight hours each day, and to inflict punishment upon
those who are embraced by such regulations and yet disregard them.
It cannot be deemed a part of the liberty of any contractor that he
be allowed to do public work in any mode he may choose to adopt,
without regard to the wishes of the state. On the contrary, it
belongs to the state, as the guardian and trustee for its people,
and having control of its affairs, to prescribe
Page 191 U. S. 223
the conditions upon which it will permit public work to be done
on its behalf or on behalf of its municipalities. No court has
authority to review its action in that respect. Regulations on this
subject suggest only considerations of public policy. And with such
considerations the courts have no concern.
If it be contended to be the right of everyone to dispose of his
labor upon such terms as he deems best -- as undoubtedly it is --
and that to make it a criminal offense for a contractor for public
work to permit or require his employee to perform labor upon that
work in excess of eight hours each day is in derogation of the
liberty both of employees and employer, it is sufficient to answer
that no employee is entitled, of absolute right and as a part of
his liberty, to perform labor for the state, and no contractor for
public work can excuse a violation of his agreement with the state
by doing that which the statute under which he proceeds distinctly
and lawfully forbids him to do.
So also, if it be said that a statute like the one before us is
mischievous in its tendencies, the answer is that the
responsibility therefor rests upon legislators, not upon the
courts. No evils arising from such legislation could be more
far-reaching than those that might come to our system of government
if the judiciary, abandoning the sphere assigned to it by the
fundamental law, should enter the domain of legislation, and, upon
grounds merely of justice or reason or wisdom, annul statutes that
had received the sanction of the people's representatives. We are
reminded by counsel that it is the solemn duty of the courts in
cases before them to guard the constitutional rights of the citizen
against merely arbitrary power. That is unquestionably true. But it
is equally true -- indeed, the public interests imperatively demand
-- that legislative enactments should be recognized and enforced by
the courts as embodying the will of the people unless they are
plainly and palpably, beyond all question, in violation of the
fundamental law of the Constitution. It cannot be affirmed of
Page 191 U. S. 224
the statute of Kansas that it is plainly inconsistent with that
instrument; indeed, its constitutionality is beyond all
question.
Equally without any foundation upon which to rest is the
proposition that the Kansas statute denied to the defendant or to
his employee the equal protection of the laws. The rule of conduct
prescribed by it applies alike to all who contract to do work on
behalf either of the state or of its municipal subdivisions, and
alike to all employed to perform labor on such work.
Some stress is laid on the fact, stipulated by the parties for
the purposes of this case, that the work performed by defendant's
employee is not dangerous to life, limb, or health, and that daily
labor on it for ten hours would not be injurious to him in any way.
In the view we take of this case, such considerations are not
controlling. We rest our decision upon the broad ground that, the
work being of a public character, absolutely under the control of
the state and its municipal agents acting by its authority, it is
for the state to prescribe the conditions under which it will
permit work of that kind to be done. Its action touching such a
matter is final so long as it does not, by its regulations,
infringe the personal rights of others, and that has not been
done.
The judgment of the Supreme Court of Kansas is
Affirmed.
THE CHIEF JUSTICE, MR. JUSTICE BREWER, and MR. JUSTICE PECKHAM
dissent.
