he is at liberty to bid or not to bid, as he may see fit, for public work, would justify any discrimination in which a legislature might see fit to indulge." Do you agree? Does the court answer this objection satisfactorily?

6. Why does the court put to one side the argument that the work in question was not harmful to life, limb, or health?

7. In the absence of such a statute as the one in the principal case, could a city constitutionally pass an ordinance to the same effect?

8. A state statute fixes an eight-hour day in all cases where labor is employed by the state, or a county or municipality thereof, except in cases of necessity, emergency, or where public policy absolutely requires it. Do municipal policemen and firemen come within the statute?

9. A state statute fixes an eight-hour day for all public work, whether done through a contractor or not, and requires that every contract for public work shall contain a provision that the same shall be void if the contractor violates the act, and declares that no contractor shall receive any sum on such a contract if there has been a violation of the act. Is the law constitutional under Amendment XIV?

10. Is there in your state a statute regulating the hours of labor on government work? If so, how has it fared in the courts?

(b) Work Affected with a Public Interest

BALTIMORE & OHIO R. R. CO. v. I. C. C.

United States Supreme Court. 1911. 221 U. S. 612.

MR. JUSTICE HUGHES delivered the opinion of the court:

This is a bill in equity to annul an order made by the Interstate Commerce Commission on March 3, 1908, and for injunction. The order required the carriers within the provisions of the act of Congress of March 4, 1907, chapter 2939, 34 Stat. at L. 1415, to make monthly reports, under oath, showing the instances where employees subject to that act had been on duty for a longer period than that allowed. The statute, entitled "An Act to Promote the Safety of Employees and Travelers upon Railroads by Limiting the Hours of Service of Employees Thereon," [follows:]

That the provisions of this act shall apply to any common carrier or carriers, their officers, agents, and employees, engaged in the transportation of passengers or property by railroad in the District of Columbia or any territory of the United States, or from one state or territory of the United States or the District of Columbia or to any other state or territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to

any other place in the United States. The term "railroad," as used in this act, shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term "employees," as used in this act, shall be held to mean persons actually engaged in or connected with the movement of any train.

Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act, to require or permit any employee subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours, he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, That no operator, train despatcher, or other employee who, by the use of the telegraph or telephone, despatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements, shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week; Provided further, The Interstate Commerce Commission may, after full hearing in a particular case, and for good cause shown, extend the period within which a common carrier shall comply with the provisions of this proviso as to such case.

[Section 3 provides penalties for violation of the provisions of the act and methods by which such penalties may be collected. It, also, makes the common carrier liable for all acts of its officers and agents, and names certain exceptional conditions under which the act shall not apply.]

Sec. 4. It shall be the duty of the Interstate Commerce Commission to execute and enforce the provisions of this act, and all powers

granted to the Interstate Commerce Commission are hereby extended to it in the execution of this act.

Sec. 5. That this act shall take effect and be in force one year after its passage.

It is

contended that the statute is unconstitutional in its entirety, and therefore no action of the Commission can be based upon it. . . .

By virtue of its power to regulate interstate and foreign commerce, Congress may enact laws for the safeguarding of the persons and property that are transported in that commerce, and of those who are employed in transporting them. . . . . The fundamental question here is whether a restriction upon the hours of labor of employees who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends. This has been repeatedly emphasized in official reports of the Interstate Commerce Commission, and is a matter so plain as to require no elaboration. In its power suitably to provide for the safety of employees and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train despatchers, telegraphers, and other persons embraced within the class defined by the act. And in imposing restrictions having reasonable relation to this end there is no interference with liberty of contract as guaranteed by the Constitution. Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549.

If, then, it be assumed, as it must be, that, in the furtherance of its purpose, Congress can limit the hours of labor of employees engaged in interstate transportation, it follows that this power cannot be defeated either by prolonging the period of service through other requirements of the carriers, or by the commanding of duties relating to interstate and intrastate operations.

[The rest of the opinion does not deal directly with the power of Congress to regulate the hours of labor of employees engaged in interstate commerce and is omitted.]

QUESTIONS

1. Is the argument of the court consistent with the doctrine of the police power in the field of state legislation?

2. Would this court uphold a similar state statute applying to intrastate railroads and street car lines?

3. Would a state statute limiting the hours of employment on all elevators or lifts which carry passengers be valid under the Federal Constitution? 4. Could a state constitutionally limit the hours of work for pharmacists or drug clerks?

5. Is there any difference between the foregoing cases and Holden v. Hardy?

6. A state law makes it unlawful for a railroad to require a telegraph operator to be on duty for more than eight hours in a day, except in cases of emergency. The X Railroad is indicted under the law. Advise it.

7. A state law forbids the employment of baggagemen, laborers, and crossing tenders in and about railroad stations for more than nine working hours in ten hours' time each day. Is it a violation of Amendment XIV?

8. Are there in your state statutes regulating hours of labor which would be upheld by the courts on the ground that the work concerned is affected with a public interest?

(c) Private Employment

STATE v. BUNTING

Supreme Court of Oregon. 1914. 71 Ore. 259.

In Banc. MR. JUSTICE BEAN delivered the opinion of the court:

Section 1 of the act declares as follows:

"It is the public policy of the State of Oregon that no person shall be hired, nor permitted to work for wages, under any conditions or terms, for longer hours or days of service than is consistent with his health and physical well-being and ability to promote the general welfare by his increasing usefulness as a healthy and intelligent citizen. It is hereby declared that the working of any person more than ten hours in one day, in any mill, factory or manufacturing establishment is injurious to the physical health and well-being of such person, and tends to prevent him from acquiring that degree of intelligence that is necessary to make him a useful and desirable citizen of the state." Section 2 enacts the following:

"No person shall be employed in any mill, factory or manufacturing establishment in this state more than ten hours in any one day, except watchmen and employees when engaged in making necessary repairs, or in case of emergency, where life or property is in imminent danger; provided, however, employes may work overtime not to exceed three

hours in any one day, conditioned that payment be made for said overtime at the rate of time and one-half the regular wage."

Section 3 provides a penalty for a violation of the statute.

Defendant demurred to the indictment upon the ground that the legislative enactment alleged to have been violated is invalid, because repugnant to the Constitution of the United States and to that of the State of Oregon.

1. It is contended that the statute violates the right of contract, the right of property, and that it is class legislation and void. The fourteenth amendment to the Constitution of the United States, which it is claimed the act contravenes, declares, inter alia, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Article I, Section 20, of the Constitution of this state is as follows:

"No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens."

To give the act vitality it must be done by virtue of the police power of the state.

2. It is an announced principle of law that the right to labor or to employ labor on such terms and conditions as may be stipulated by the contracting parties is not only a liberty, but a property right guaranteed to every citizen by the fourteenth amendment above quoted. Such right cannot be arbitrarily or unreasonably interfered with by the legislature: State v. Muller, 48 Or. 252 (affirmed in 208 U. S. 412). The right to labor and to employ labor, like all other rights, is itself subject to such reasonable limitations as are necessary to promote the health, general welfare, and intelligence of the citizens, and the peace and good order of the state. To this end a large discretion is from necessity vested in the lawmakers to determine not only what the interests of the public require but what measures are necessary for the protection of such interests. . . .

....

By the adoption of the fourteenth amendment it was not designed nor intended to curtail or limit the right of the state under its police power to prescribe such reasonable regulations as might be essential to the promotion of the peace, welfare, morals, education, or good order of the people. It was adopted primarily to protect the then newly