The provisions in the Act of August 1, 1892, 27 Stat. 340,
limiting the hours of laborers and mechanics employed by the United
States or any contractor or subcontractor upon any of the public
works of the United States to eight hours per day except in cases
of extraordinary emergency, and imposing penalties for the
violation thereof, are constitutional and within the powers of
Congress. In this respect, Congress has the same power as a state
has over the construction of its public works.
Atkin v.
Kansas, 191 U. S. 207.
An act of Congress otherwise valid is not unconstitutional
because the motive in enacting it was to secure certain advantages
for conditions of labor not subject to the general control of
Congress.
Although, in the absence of special laws, the government, purely
as a contractor, may stand like a private person, it does not, by
making a contract, waive its sovereignty or give up its power to
make laws which render criminal a breach of the contract.
The disappointment of a contractor with regard to obtaining some
of his materials did not, under the circumstances of this case,
amount to an extraordinary emergency within the meaning of the
statute and justify him in having laborers work more than eight
hours.
One who intentionally adopts certain conduct in certain
circumstances known to him, which conduct is unlawful,
intentionally breaks the law.
Persons employed on dredges and scows in dredging a channel in a
harbor are not within the meaning of the Act of August 1, 1892,
laborers or mechanics employed on any of the public works of the
United States.
The facts are stated in the opinion.
Page 206 U. S. 254
MR. JUSTICE HOLMES delivered the opinion of the Court.
These are an indictment and informations under the Act of August
1, 1892, c. 352, 27 Stat. 340,
"Relating to the Limitation of the Hours of Daily Service of
Laborers and Mechanics Employed upon the Public Works of the United
States and of the District of Columbia."
They all bring up the question of the constitutionality of the
act, and they severally present some subordinate matters, which
will be considered under the respective cases.
The act limits the service and employment of all laborers and
mechanics employed by the United States, by the District of
Columbia, or by any contractor or subcontractor upon any of the
public works of the United States or the District, to eight hours
in any one calendar day, and makes it unlawful "to require or
permit any such laborer or mechanic to work more than eight hours
in any calendar day except in case of extraordinary emergency." By
§ 2,
"any officer or agent of the government of the United States or
of the District
Page 206 U. S. 255
of Columbia, or any contractor or subcontractor whose duty it
shall be to employ, direct, or control any laborer or mechanic
employed upon any of the public works of the United States or of
the District of Columbia, who shall intentionally violate any
provision of this act, shall be deemed guilty of a misdemeanor, and
for each and every such offense shall, upon conviction, be punished
by a fine not to exceed one thousand dollars or by imprisonment for
not more than six months, or by both such fine and imprisonment, in
the discretion of the court having jurisdiction thereof."
The plaintiffs in error were contractors within the scope of the
act, were found guilty, and were fined. They all requested rulings
that the act was unconstitutional, excepted to the refusal so to
rule, and on that ground brought their cases to this Court.
The contention that the act is unconstitutional is not
frivolous, since it may be argued that there are relevant
distinctions between the power of the United States and that of a
state. But the arguments naturally urged against such a statute
apply equally for the most part to the two jurisdictions, and are
answered, so far as a state is concerned, by
Atkin v.
Kansas, 191 U. S. 207. In
that case, a contractor for work upon a municipal boulevard was
sentenced to a fine under a similar law of Kansas, and the statute
was upheld. We see no reason to deny to the United States the power
thus established for the states. Like the states, it may sanction
the requirements made of contractors employed upon its public works
by penalties in case those requirements are not fulfilled. It would
be a strong thing to say that a legislature that had power to
forbid or to authorize and enforce a contract had not also the
power to
Page 206 U. S. 256
make a breach of it criminal; but, however that may be,
Congress, as incident to its power to authorize and enforce
contracts for public works, may require that they shall be carried
out only in a way consistent with its views of public policy, and
may punish a departure from that way. It is true that it has not
the general power of legislation possessed by the legislatures of
the states, and it may be true that the object of this law is of a
kind not subject to its general control. But the power that it has
over the mode in which contracts with the United States shall be
performed cannot be limited by a speculation as to motives. If the
motive be conceded, however, the fact that Congress has not general
control over the conditions of labor does not make unconstitutional
a law otherwise valid, because the purpose of the law is to secure
to it certain advantages, so far as the law goes.
One other argument is put forward, but it hardly needs an
answer. A ruling was asked in Ellis' case, and is attempted to be
sustained, to the effect that the government waived its sovereignty
by making a contract, and that, even if the act of 1892 were read
into the contract, a breach of its requirements would be only a
breach of contract, and could not be made a crime. This is a mere
confusion of ideas. The government, purely as contractor, in the
absence of special laws, may stand like a private person; but, by
making a contract, it does not give up its power to make a law, and
it may make a law like the present for the reasons that we have
stated. We are of opinion that the act is not contrary to the
Constitution of the United States.
We pass to the subordinate matters not common to all the cases.
In Ellis' case, the plaintiff in error agreed to construct and
complete pier No. 2 at the Boston Navy Yard within six months,
according to certain specifications, and at a certain price. He
found more difficulty than he expected, although he expected some
trouble, in getting certain oak and pine piles called for by the
contract, and, having been delayed by that cause, he permitted his
associate in the business to employ men for nine hours, in the
hurry to get the work done. The
Page 206 U. S. 257
judge instructed the jury that the evidence did not show an
"extraordinary emergency" within the meaning of the act. The judge
was right in ruling upon the matter. Even if, as in other
instances, a nice case might be left to the jury, what emergencies
are within the statute is merely a constituent element of a
question of law, since the determination of that element determines
the extent of the statutory prohibition and is material only to
that end. The ruling was correct. It needs no argument to show that
the disappointment of a contractor with regard to obtaining some of
his materials -- a matter which he knew involved some difficulty,
of which he took the risk -- does not create such an emergency as
is contemplated in the exception to the law. Again, the
construction of the pier was desirable for the more convenient
repair of war ships, but it was not essential. Vessels had been
docked without it since 1835 or 1836, so that there was no hot
haste on that account if, under any circumstances, that kind of
need would have been enough.
There is only one other question raised in Ellis' case. It is
admitted that he was a contractor within the meaning of the act,
and that the workmen permitted to work more than eight hours a day
were employed upon "public works," and it is not denied that these
workmen were "mechanics." The jury were instructed, subject to
exception, that if the defendant intended to permit the men to work
over eight hours on the calendar day named, he intended to violate
the statute. The argument against the instruction is that the word
"intentionally" in the statute requires knowledge of the law, or at
least that, to be convicted, Ellis must not have supposed, even
mistakenly, that there was an emergency extraordinary enough to
justify his conduct. The latter proposition is only the former a
little disguised. Both are without foundation. If a man
intentionally adopts certain conduct in certain circumstances known
to him, and that conduct is forbidden by the law under those
circumstances, he intentionally breaks the law in the only sense in
which the law ever considers intent. The judgment in this case must
be affirmed.
Page 206 U. S. 258
The three cases against the Eastern Dredging Company were
informations for employing certain men alleged to be laborers or
mechanics more than eight hours a day upon what was alleged to be
one of the public works of the United States --
viz.,
dredging a portion of the 35-foot channel, so called, in Boston
Harbor. The cases against the Bay state Dredging Company were
similar, except that the place was Chelsea Creek in Boston Harbor.
Of the former, No. 664 was in three counts for employing two deck
hands and an assistant crane man and deck hand upon a dredge; No.
665 was for employing the master, crane man, and fireman of the
dredge, and No. 666 was for employing the captain, mate, engineer,
and foreman of a tug that towed a scow, etc., and a man in charge
of the scow. Of the Bay State Dredging Company cases, No. 667 was
for employing the captain, mate, and fireman of a dredge; No. 668
was for employing a crane man and deck hand on the dredge, and No.
669 was for employing a scow man and the captain and engineer of a
tug. The offenses were admitted or proved subject to the questions
that already have been considered, and to the further questions
whether the dredging was upon one of the public works of the United
States, and whether the persons employed were laborers or mechanics
within the meaning of the act, with one or two lesser points that
will not need to be discussed.
Both of the phrases to be construed admit a broad enough
interpretation to cover these cases, but the question is whether
that interpretation is reasonable, and, in a penal statute, fair.
Certainly they may be read in a narrower sense with at least equal
ease. The statute says, "laborers and mechanics . . . employed . .
. upon any of the public works." It does not say, and no one
supposes it to mean, "any public work." The words "upon" and "any
of the," and the plural "works" import that the objects of labor
referred to have some kind of permanent existence and structural
unity, and are severally capable of being regarded as complete
wholes. The fact that the persons mentioned as employed upon them
are laborers and
Page 206 U. S. 259
mechanics, words admitted not to include seamen, points in the
direction of structures and away from the sea. The very great
difficulty, if not impossibility, of dredging in the ocean if such
a law is to govern it is a reason for giving the defendants the
benefit of a doubt, and the fact that, until last year, the
government worked dredging crews more than eight hours is a
practical construction not without its weight. A change seems to
have been made simply for the sake of consistency between the
different departments of the government, as is stated in an order
of the Secretary of War. A different conclusion is sought to be
drawn from some appropriation acts, but they simply refer to the
improvement of harbors in general terms among the public works for
which appropriations are made. The improvement of a harbor may
consist in the erection of structures as well as in the widening of
a channel, or the explosion of a rock. It is unnecessary to lay
special stress on the title to the soil in which the channels were
dug, but it may be noticed that it was not in the United States.
The language of the acts is "public works of the United States." As
the works are things upon which the labor is expended, the most
natural meaning of "of the United States" is "belonging to the
United States."
The words "laborers and mechanics" are admitted not to apply to
seamen as that name commonly is used. Therefore it was contended
but faintly that the masters of the tugs could not be employed more
than eight hours. But the argument does not stop with masters of
tugs, or even with mates, engineers, and firemen of the same.
Wilson v. The Ohio, Gilpin, 505;
Holt v.
Cummings, 102 Pa. 212. The scows and the floating dredges were
vessels. Rev.Stat. §§ 3, 4612. They were within the
admiralty jurisdiction of the United States.
The Robert W.
Parsons, 191 U. S. 17. A
number of cases as to dredges in the circuit and district courts
are referred to in
Bowers Hydraulic Dredging Co. v. federal
Contracting Co., 148 Fed 290. Therefore, all of the hands
mentioned in the informations were seamen within the definition in
an earlier statute of the
Page 206 U. S. 260
United States. Rev.Stat. § 4612.
Saylor v. Taylor,
77 F. 476.
See also Act of March 3, 1875, c. 156, §
3. 18 Stat. 485;
Bean v. Stupart, 1 Dougl. 11;
Disbrow
v. The Walsh Brothers, 36 F. 607.
They all require something of the training and are liable to be
called upon for more or less of the services required of ordinary
seamen. The reasons which exclude the latter from the statute
apply, although perhaps in a less degree, to them. Whatever the
nature of their work, it is incident to their employment on the
dredges and scows, as in the case of an engineer or coal shoveler
on board ship. Without further elaboration of details, we are of
opinion that the persons employed by the two defendant companies
were not laborers or mechanics, and were not employed upon any of
the public works of the United States within the meaning of the
act. As in other cases where a broad distinction is admitted, it
ultimately becomes necessary to draw a line, and the determination
of the precise place of that line in nice cases always seems
somewhat technical, but still the line must be drawn.
Judgment in 567 affirmed.
Judgments in 664, 665, 666, 667, 668, and 669
reversed.
MR. JUSTICE MOODY took no part in the decision of 567.
MR. JUSTICE McKENNA is of opinion that the work upon the
dredging of Chelsea creek was within the act. In other particulars
he agrees with the judgment of the court.
MR. JUSTICE MOODY, dissenting:
I am unable to agree with the opinion of the Court so far as it
relates to the employment for more than eight hours a day of the
men engaged in work on the dredges and scows. The cases are of such
general importance that I am unwilling to allow the reasons for my
disagreement to remain undisclosed.
Page 206 U. S. 261
The first question is whether the men named in the informations
were employed by the defendants "upon any of the public works of
the United States" within the meaning of those words as Congress
used them. Let it be conceded, as I think it should be, that "any
of the public works" is a narrower expression than "any public
work" would be; that public works must "have some kind of permanent
existence and structural unity, and be severally capable of being
regarded as complete wholes," and still the works here in question
fall within the description. The dredging of channels in our
waterways is not mere digging. It has for its purpose the creation
of something with as visible a form as a cellar to a house, a
sunken road, a well, a tidal basin, or a sea level canal. Surely
all these are "works," and, if constructed by the government,
"public works." Artificial waterways may not be so easily read out
of the statute by any definition, and I cannot resist the belief
that the definition accepted in the opinion of the Court does not
accomplish it.
Let us consider the history of one of these artificial
approaches from the sea, such as the channel in Boston Harbor, and
see whether, when it is completed, it ought not to be regarded as a
complete whole, having a permanent existence and structural unity.
When a work of this kind is proposed, the engineers of the Army,
first obtaining the authority from Congress, survey the region,
consider the commercial reasons which support the project, and make
plans for it and estimates of its cost. Upon consideration of the
engineers' report, Congress, if it approves the project, makes an
appropriation for its construction, designating it expressly as of
the "public works" of the United States. For example, the
appropriation for one of the works in question in these cases is in
the following terms:
"The following sums of money . . . are hereby appropriated . . .
for the construction . . . of the public works hereinafter named; .
. . for improving said harbor in accordance with the report report
submitted in House Document, number one hundred and nineteen,
Page 206 U. S. 262
Fifty-sixth Congress, Second Session, by providing channels
thirty-five feet deep, . . . six hundred thousand dollars."
That is to say, at the very threshold of the inquiry, we find
that the Congress which had forbidden a longer day's work than
eight hours upon "the public works of the United States" had, upon
undertaking this very work, deliberately called it a "public work."
The cogency of the argument arising from the use of the same words
in the eight-hour law as in the appropriation law cannot be met by
the suggestion that it is easy to read the words in the eight-hour
law in a narrower sense than they were used in the appropriation
law. The question here is not how the words may be interpreted, but
how they ought to be interpreted. There is no necessity to explore
the possibilities of escape from the intention which Congress has
made sufficiently plain.
In the Digest of Appropriations, made and published under the
direction of Congress, these constructions are constantly
denominated as "works," and, of course, they are "public." After
the channel is completed, it is buoyed and lighted by the
government, and frequently defended by land fortifications
constructed for that purpose. Sometimes breakwaters or jetties are
constructed for the purpose of preserving it from impairment. The
General Appropriation Act of September 19, 1890, 26 Stat. 426,
contains some provisions of permanent law, which are material here.
It begins by appropriating "for the construction, completion,
repair, and preservation of the public works hereinafter named."
Then follow many specific appropriations for the improvement of
rivers and harbors. Section 3717 of the Revised Statutes was as
follows:
"Whenever the Secretary of War invites proposals for any
works, or for any material or labor for any
works, there shall be separate proposals and separate
contracts for each work, and also for each class of material or
labor for each work."
Section 2 of this act provided that that section of the Revised
Statutes should not be construed to prohibit
"the cumulation of two or more
works of river and
harbor improvement in
Page 206 U. S. 263
the same proposal and contract where such
works are
situated in the same region and of the same kind or character."
Of course, the works here referred to are public works. Section
6 prohibits the deposit of material in harbors, navigable rivers or
waters of the United States. Section 7, as amended by § 3 of
the Act of July 13, 1892, 27 Stat. 88-110, makes it unlawful
"to excavate or fill, or in any manner to alter or modify the
course, location, condition, or capacity of, any port, roadstead,
haven, harbor, harbor of refuge, or enclosure within the limits of
any breakwater or of the channel of any navigable water of the
United States, unless approved and authorized by the Secretary of
War."
The Act of March 3, 1899, 30 Stat. 1151, makes additional
safeguard against the obstruction of navigable channels. Thus,
Congress, which has created these artificial channels, keeps them
under the constant repair, supervision, control, and protection of
the government. When the work is done, the government, through the
Navy Department and the Coast and Geodetic Survey, makes,
publishes, and issues charts which show their length, depth, and
width in the minutest detail, and the buoys and lights which enable
the mariner to use them with safety. He, like Congress, enters upon
the channels, regarding them as completed wholes, as having a
permanent existence, and, if he strays beyond their limits, he will
quickly discover that they have a tangible form and structural
unity. Doubtless they are subject to alteration by the action of
the elements, but so is a building; and, given the constant repair
and care which all structures need in order to prevent their
disintegration, they are as permanent as the Capitol building
itself. Quotations from acts of Congress might be multiplied
indefinitely showing that, with respect to channels, Congress had
appropriated for them as "works," and for their repair and
maintenance as "works;" but if the acts already referred to will
not show that Congress regarded such waterways as public works, no
number of others will do it. I suppose it would be conceded that
breakwaters or jetties were public works. Is it to be supposed that
Congress
Page 206 U. S. 264
intended that men who work on them should work only eight hours
a day, while those who work near by on the channel itself should be
exempted from this restriction? I conclude, therefore, that the
labor performed was upon "the public works of the United
States."
The eight-hour day is prescribed by the statute only for
laborers and mechanics. These words of description have never been
supposed to include, and would not include, all those who do work
of any kind. Although the extent of these words is somewhat vague,
nevertheless they were used in a technical sense, to describe
classes of employees. The second question is whether the men named
in the information were laborers or mechanics.
Seamen, whether employed in the Navy or other marine service of
the United States, or by contractors with the United States, are
not laborers or mechanics. They, while laboring as seamen, could no
more be brought within the limits of an eight-hour day than a
physician, a lawyer, or a clergyman. They have always been regarded
with special favor by all governments, and a series of laws
specially applicable to them control and affect their conditions of
labor. The men employed on the seagoing tug, from the master down,
were seamen, and their work was the work of seamen, and the
conviction with respect to them was, I agree, erroneous. Those who
are employed upon the dredges and scows were not, in respect of the
work they were actually doing, in any proper sense, seamen. The
master and engineer of the dredge were not licensed, and the men
employed upon it seemed not to have entered into any contract of
shipment. They were employed usually from those who had served in
the merchant marine. They had doubtless acquired the skill and
aptitude which especially fitted them for work upon the dredges,
which required some handling of lines and some other minor things
in which sailors become expert. But, because a man has acquired in
one occupation skill which fits him for another, it does not follow
that, when he passes from one occupation to the other, the work
Page 206 U. S. 265
which he does in the new employment entitles him rightfully to
be called by the old name. The sailor who is appointed the keeper
of a lighthouse may have received his appointment because he was
once a sailor, but, nevertheless, when he enters into the new
service, he is a lighthouse keeper, and not a sailor. The
occupation of dredging is not the only one for which life on the
sea educates a man. There is a constant demand, for instance, for
those who have an honorable discharge from the Navy for employment
in civil life. The qualities of obedience, of daring, of fidelity,
of the capacity for quick adaptation of insufficient means to the
end which may be desired -- all the result of training upon the sea
-- are qualities which are needed in many stations of civil life;
but, when men have reached those stations by reason of qualities
developed in them while seamen, they are no longer sailors. The
work of the dredge men and scow men may be described in a sentence.
They were digging a channel and emptying the material excavated in
the sea. All those who were engaged in the work may fairly be
described as either laborers or mechanics. They had nothing
whatever to do with navigation. Neither the dredges nor the scows
had steering gear, sails, or other methods of self-propulsion. They
were towed to the place where the work was to be done, and there
left to do it.
It does not seem to be important that, for some purposes, the
scows and dredges were vessels, or those employed upon them, for
some purposes, are deemed seamen. The question here is what were
the men when they were engaged in the work of excavation? Were the
men at that time employed as seamen, doing the work of seamen, or
as laborers and mechanics, doing the work of laborers and
mechanics? I think they then were laborers or mechanics, and
employed as such, and that their occupation is determined not by
what they have done in the past, or by what their employers chose
to call them, but by what they were doing when the government
invoked the law for their benefit. If they were then doing the work
of laborers and mechanics, whatever they may have done in the
past,
Page 206 U. S. 266
which constitutes a motive for their employment, or by whatever
name they were employed, they were, or rather their labor was,
within the restrictions as to hours prescribed by the law. Nor was
their work in dredging incident to their employment on the dredges,
but quite the reverse. They never would have been employed at all
except for dredging. They never would have set foot on the dredge
save to use it as a platform on which to do the work of laborers
and mechanics. It should not be forgotten that the object of this
statute, in which is embodied an expression of a great public
policy, is to regulate labor of the kind named, and the men
concerned are in or out of its prohibitions solely by reason of the
kind of labor they perform. How can it be material here whether the
dredge is or is not a vessel within the admiralty jurisdiction, or
that, in the construction of two specifically named statutes, all
those upon it are deemed to be seamen? There is no artificial
statutory construction prescribed for this act, and what the men on
it are is left, under this act, to be determined according to the
truth and fact, and the test to be applied is the nature of the
labor they actually perform. They were employed to do the work of
laborers and mechanics; in the main, they actually did that work,
and whatever they did which was of the nature of seamen's work was
a mere incident to the fact that they labored upon a floating
platform instead of upon the dry land.
It is conceded in the opinion of the Court that the statute
admits of an interpretation which brings these cases within it. May
not more be said? Are not these cases fairly within the plain words
of the act? If this be so, then the rule of strict interpretation,
applicable to penal laws, a rule which has lost all of its ancient
rigor, if indeed it is now more than a lifeless form (
United
States v. Lacher, 134 U. S. 624,
134 U. S.
628), cannot be used to take them out. When the
intention of the legislature is reasonably clear, the courts have
no duty except to carry it out. The rule for the construction of
penal statutes is satisfied if the words are not enlarged beyond
their natural meaning,
Page 206 U. S. 267
and it does not require that they shall be restricted to less
than that.
The impossibility or difficulty of applying this law to the
operations of dredging, which, upon the evidence, I think, amounts
to no more than that it would result in an inconvenience, which the
defendants may readily avoid by refusing to contract with the
government, is a consideration fit to be addressed to Congress,
rather than to this Court.
I am authorized to say that MR. JUSTICE HARLAN and MR. JUSTICE
DAY concur in this dissent.