Byars v. State

1909 OK CR 76, 102 P. 804, 2 Okla. Crim. 481, 1909 Okla. Crim. App. LEXIS 161

• Court: Court of Criminal Appeals of Oklahoma
• Decided: June 30, 1909
• Docket: No. A-85.
• Status: Published

Opinion

DOYLE, Judge,

(after stating the facts as above). This case involves the validity under the Constitution of the United States and the Constitution of the state of Oklahoma of the statute commonly known as the “Eight-Hour Labor Law,” being article 4, c. 53, p. 517, Sess. Laws 1908. The case has been fully stated, in order that there may be no dispute as to what is involved in its determination. The Constitution of the state of Oklahoma provides in section 1, art. 33 (section 435, Bunn's Ed.) :

“Eight hours shall constitute a day's work in all cases of employment by and on behalf of the state or any county or municipality.”

■Senate Bill No. 79, approved May 37, 1908, being the statute under which defendant is prosecuted reads:

“An act to put into effect section 1, of article - 2'3, 'of the Constitution, providing what shall constitute a day’s work in all cases of employment by and on behalf of the state or any county or municipality; prescribing penalties for violation thereof, and establishing Labor Day and declaring an emergency.

“Be it enacted by the- people of the state of Oklahoma:

“Section 1. -Eight hours shall constitute a day’s work in all eases of employment by and on behalf of the state or any county or municipality.

“Sec. '¿. 'Any person, firm or corporation, or any agent, contractor or sirbcontraetor, who shall violate the provisions of this Act, or who shall aid, abet, assist, connive at, or permit any violation thereof is. guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than fifty ($50.00) dollars nor more than one thousand ($1,000.00)' dollars and by imprisonment of not less than thirty days nor more than six months or by both fine and imprisonment. Each day such violation continues shall constitute a separate offense.

“Sec. 3. Not less than the current market rate of wages in the locality where the work is performed shall be paid.”

Counsel for the defendant contend: That under the terms of this statute, under the guise of a police regulation when it is not so in fact, the right of the employer and employe to contract is abridged in such a manner as to be an infringement upon the constitutional rights of both parties. That said statute is invalid because it contravenes the fourteenth amendment to the Constitution of the United -States, and that “the contract for paving is not ‘entered into by and on behalf of the city of Guthrie.'’ The city of Guthrie as a municipality is acting simply as an agent of the property owner, whose property abuts on the streets along the proposed improvement. While the city has supervisory power over the streets, the improvement as shown by the statement of fact is to be paid for solely by the property owners. Work of the kind mentioned therein does not come within the purview of the statute. Work in behalf of the city would be work for which the city was liable, and which was to be paid for by the city, and not abutting property owners.” We believe the contention of counsel for defendant is without merit, and is unsupported by reason or authority. We see in this law no infringement of constitutional rights.

There is nothing on which to base the statement that this statute is enacted by virtue of the police power of the state, and for this reason it is unnecessary to discuss or consider it. Tire foregoing provision of the Constitution was formulated and adopted by the people of Oklahoma as a part of the organic law. The manifest purpose of this provision is to promote the industrial welfare of the people by fixing a high standard for employes on public work. The statute in question is clearly calculated to promote the purpose and public policy of the state as expressed in the Constitution, and does not restrict or .interfere with the right or liberty of the employe and employer to contract, and can only be regarded as a direction by a principal to his agent, and therefore as a matter of consideration to the principal and agent only. Oklahoma as a sovereign state is no less free as a party to contract than any person in the state, and the lawmaking power, has the right to provide that contracts made by the state or any agent of the. state shall be executed in conformity with the requirements of the Constitution and the statute, a-nd the only way to make such laws effective is to make their violation criminal. The state has declared by constitutional provision and bv this statute that eight hours shall constitute a day’s work in all cases of employment by and on behalf of the state or any county or municipality, and that all laborers or employes engaged in the service of the state or any countjr or municipality shall not work thereunder more than eight hours per day, and that any violation of the statute shall be punished as a misdemeanor. The state does not take away the property of the citizen or interfere with his personal liberty. The right by virtue of which the state regulates the use of its property is not only one of dominion and sovereignty. It'is also the same in quality and character as the right of the person with whom it contracts, and, when the state engages directly or indirectly in the construction of public improvements, it may employ and re fuse employment to whom it will, the same way and to the same extent that any citizen may exercise the right in reference to his private and personal affairs. The right is the same in either ease. This proposition is so elementary that a citation of authorities is unnecessary.

A contractor bidding for work to be done by the state, county, or municipality understands in making his estimates that under the law eight hours per day is the maximum time which his employes may work. He cannot be prejudiced for all other bidders on the same work have equal knowledge of the law governing the hours of labor to be performed on public work. It is obvious that otherwise an unscrupulous contractor would have an unfair and undue advantage over his law respecting competitors who base their estimates upon, and intend to conform to the requirements of the statute. A contractor is not compelled to bid. He does so voluntarily with full knowledge of the restrictions imposed by the statute, and all contracts made by any agent of the state must conform to the provisions of the statute, and, if not actually inserted therein, they would still be as the law of the state a part of the contract.

The case of Atkin v. State of Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148, is precisely in point on every question involved in the case at bar. The statute of Kansas is similar to ours. Atkin contracted with Kansas City to pave a public street in said city, and hired a laborer to shovel dirt for 10 hours a day in execution of the work. He was prosecuted and convicted. The case was tried upon an agreed statement of facts as in this case. He appealed to the Supreme Court of Kansas, which court affirmed the judgment, and sustained the validity of the statute. The case was then taken to the Supreme Court of the United States, where the judgment of the Supreme Court of Kansas was affirmed.

Justice Harlan, delivering the opinion of the court says:

“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 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, 17 Sup. Ct. 427, 41 L. Ed. 832; Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 L. Ed. 186. 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, 55 Pac. 336, 338, 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 employment 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 10 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 ease 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 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, 663, 18 L. Ed. 79; United States v. Railroad Co., 17 Wall. 322, 328, 329, 21 L. Ed. 597; Mount Pleasant v. Beckwith, 100 U. S. 514, 525, 25 L. Ed. 699; State Bank of Ohio v. Knopp, 16 How. 369, 380, 14 L. Ed. 977; Hill v. Memphis, 134 U. S. 198, 203, 10 Sup. Ct. 562, 33 L. Ed. 887; Barnett v. Dennison, 145 U. S. 135, 139, 12 Sup. Ct. 819, 36 L. Ed. 652; Williams v. Eggleston, 170 U. S. 304, 310, 18 Sup. Ct. 617, 42 L. Ed. 1047.

“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 City of Clinton v. Cedar Rapids & Missouri River R. R. Co., 24 Iowa, 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 of the state and the corporations 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, 59 Pac. 336, 47 L. R. A. 380; State ex rel. v. Lake Koen Co., 63 Kan. 394, 65 Pac. 681; State ex rel. v. Com’rs of Shawnee Co., 28 Kan. 431, 433; Mayor, etc., v. Groshon, 30 Md. 436, 444, 96 Am. Dec. 591.

“The improvement of the boulevard in question was a work of which the state, if it had deemed it proper, to do so, could have taken immediate charge by its 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 une of its instrumentalities, the work was of a public, not private, character. If, then, the work upon which the defendant employed Beese 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 any one. 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 employes, 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 employe 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 have control of its affairs, to prescribe 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 re1 view 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 every one 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 employe to perform labor upon the work in excess of eight hours each day is in derogation of the liberty both of employes and employer, it is sufficient to answer that no employe 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 á 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 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 employe the equal protection of tlie 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 purpose of this case that the work performed by defendant’s employe is not dangerous to life, limb, or health, and that daily labor on it for 10 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 grounds 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 case of Ryan v. City of New York, 177 N. Y. 271, 69 N. E. 599, in the Court of Appeals of New York, is also in point. That distinguished citizen and eminent jurist, lion. Alton B. Parker, as Chief Justice announcing the decision of the court in that case, says:

“Has the Legislature power to provide that its employes and those of the several municipalities shall receive £not less than the prevailing rate5 of wages in the locality? In other words, has the Legislature — which possesses all the power of the sovereign not expressly withheld by the Constitution — power to provide that work done for it or its several subdivisions shall be paid for at such a rate as individuals and corporations in the same locality pay? That question was before this court some years ago in so far as it affects the right of the Legislature to fix the rate of’ wages of laborers upon the works of the state. Clark v. State of New York, 142 N. Y. 101, 36 N. E. 817. In 1889 the Legislature passed an act (Laws 1889, p. 508, c. 380) providing that the rate of wages upon the public works of the state should be $2 a day, That was more than the then prevailing rate, and there were those who questioned the power of the state to interfere with its agents in fixing the wages of men working under them. They thought- the superintendent of public works had the sole power of fixing wages of employes in that department, and therefore could defy the direction of the Legislature as to the amount of compensation to be paid, although he could disburse such moneys only as were appropriated by the Legislature, and they entreated the Attorney General to commence an action to have the court declare the impotency of the Legislature to interfere on the important subject of compensation to laborers. But, when the case reached this court in 1894, the Attorney General was unable to point to the provision of the Constitution which divested the representatives of the people for all matters of legislation of this power, and vested it in the several inferior officials having charge' of certain administrative duties conferred, upon them in the majority of instances by acts of the same Legislature. The court — unaffected, as was its duty, by the argument that the statute was unwise, and mindful that its duty was discharged fully, and could only bo discharged b_y declaring whether the Legislature had the power to enact the statute complained of — unani mously.held that tlie power belonged to it. Judge O’Brien writing for the unanimous court, says (142 N. Y. 101, 105, 36 N. E. 817, 818): ‘There is no express or implied restriction to be found in the Constitution upon the power of the Legislature to fix and declare the rate of compensation to be paid for labor ot services performed upon the public works of the state.’

“The principle of that decision controls this one. There the Legislature undertakes to fix arbitrarily the sum to be paid every employe of the state. Here the Legislature undertakes to provide for the payment of not less than the prevailing rate of wages, not only to the direct employes of the state, hut also to its indirect employes working in several subdivisions — the cities, counties, towns, and villages. In the administration of the affairs of those subdivisions, as well as in those of the state at large, the Legislature is unrestrained unless by express provisions of the Constitution. As expressed in Roder's Case, 166 N. Y. 1, 29, 59 N. E. 716, 723, 52 L. R. A. 814, 82 Am. St. Rep. 605: ‘The authority of the state is supreme in every part of it, and in all the public undertakings the state is the proprietor. For convenience of local administration the state has 'been divided into municipalities, in each of which there may be found local officers exercising a certain measure of authority, but in that which they do they are but the agents of the state, without power to do a single act beyond the boundary set by the state acting through its Legislature.’ Thus all of these agencies and employes in the several municipalities are doing the work of the state, which is the sovereign and master.

“Nevertheless, we find that the argumeni is again made, as in 1894 in Clark’s Case, that- the Legislature is without power to interfere with the agencies it has created for the government of the municipalities. And this is said in the face of the decision in Clarke’s .Case, and notwithstanding the fact .'that the Legislature has the power at any time to absolutely change the form of government of a municipality, to blot out,of existence any municipal charter, or to consolidate, several municipalities under a single /charter, as it did in the .creation .of Greater New York. And this argument is made in spite of the. .many .well-known illustrations of power-of .thé Legislature, to control .the .affairs ol^ municipalities. .The scope of that power is, illustrated by the construction of the new aqueduct by a board created by 'the. Legislature, the expense being charged upon the city of New York, although not a single officer of tlie city had a voice in controlling the expenditure of the millions that its construction involved, and by the act compelling the elevation of the Harlem Bailroad tracks in the city of New York, and the imposition of one-half of the expense, amounting to several millions, upon the city of New York, the work all being done through an agency created by the state.

“Not only does the Legislature fix the salaries of the prin-pal municipal officers throughout the state, but in the city of New York, where this case arises, it fixes the rate of compensation-for many laborers. The street cleaning, department will serve as an illustration. The charter provides for the payment of definite sums in some eases, and for a maximum sum in others, for a force numbering over 5,000 employes in that department and including 3,100 sweepers and 1,600' drivers, hostlers, and stable foremen. The charter in this respect has the support of Clark’s Case, supra. Now, there are a few mechanics connected with the department whose compensation is not fixed by the charter, and who, therefore, come under the prevailing rate provision of the labor law. Their compensation could be fixed, of course, at a definite sum, as that of the other employes is, but, instead, it is provided, in effect, that they shall be paid at a rate not less than that paid by others for similar services in that locality. Certainly no one can argue that the Legislature can provide that the street sweeper shall he paid fox example $2 a day, but cannot provide that he shall be paid the prevailing rate of wages when that happens to be $2. But, if one can be found who will attempt to make such an argument, surely it can be safely said that he cannot find a constitutional provision upon which to rest it.”

The foregoing opinions and ¿uthorities therein cited set forth the true principles upon which this statute must be sustained. If the principles enunciated, and the conclusions therein reached are correct, and we believe they áre, and hereby adopt them, they conclusively refute and fully answer the contention of defendant that the statute under consideration in this case is unconstitutional and void. 1

The Constitution of Oklahoma expressly reserves to the state control over all public highways, including the roads, streets, and alleys of its municipalities. The opening, construction and maintenance of public highways is purely a governmental function, whether done by the state directly or by one of its municipalities, for which the state is primarily responsible. And it is immaterial whether such public work is paid for by the state, the county, the city, or by the benefited property' owners. It is a work of a public, not private, character. The manner of payment does not change the character of work.

For the reasons stated, the judgment of the county court of Logan county is hereby affirmed, and the cause remanded with direction to carry into effect the judgment.

FURMAN, PRESIDING Judge, and BAKER, Judge, concur.