—■-:
(Paid Advertisement)
DECISION INVALIDATING H
GENERAL EIGHT-HOUR LAW
Contrary to Fourteenth Amendment to Constitu
tion and Not Warranted as
Police Measure
Tile statements being made by
.James Wittkersham relative to the
territorial eight hour law in his earn
paign against Delegate Sulzer have
prompted tit • publication of a pamph
let containing the decision in the case
ot the United States vs. the Northern
Commercial Company and C.eorge A.
Coleman, brought before the grand
jury by the district court of the Fourth
division An indictment was returned
and the defendants demurred on the
ground that the enforcement of the
law would bo a violation of the four
teenth amendment to the constitution
ot the United States.
Lengthy and extended argument
was had on the question, in which all
members of the bar were requested
by the judge to participate.
Judge Bunnell, after careful econ
sideration of the authorities cited, ren
dered a lengthy and exceptionally able
decision, the* meat of which decision
is quoted hereafter verbatim. The
portions of the decision which are
omitted are. however, pertinent, im
portant and intensely interesting.
The Decision
It is conceded that the organic act
for the territory of Alaska, approved
August 24. 1912, contains no Jirovision.
through the initiative, for obtaining an
expression of the electors of the ter
ritory concerning proposed legislation,
so it is apparent that a wholly unau
thorized act of the territorial legisla
ture of 1915 to ascertain by ballot the
views of the electors was not binding
upon the next succeeding legislature
and should not be presumed to bind
the courts k It. <\ 1,., pp. 44 and 45.
and cases cited When a legislature
thus attempts to act entirely beyond
the scope of the organic act or ( (insti
tution which gives it life, there is at
least a suspicion that it was actuated
by some undisclosed motive. See
Loehner vs New York, 198 U. S. 60
and 62.
It is as much the duty of the terri
torial legislature to recognize the con
stitution or the United States and the
organic act for the territory in mak
ing laws as it Is the duty of the courts
to accept them as their rule and
guide in passing upon the validity of
a statute.
The Important question for deter
mination ns raised by the demurrers
is whether or not the act of the ter
ritorial legislature under which this
indictment is brought Is contrary to
and in violation of the provisions of
the fourteenth amendment to the con
stitution of the United States. If by
its enforcement it deprives any person
of life, liberty or property without due
process of law. or denies to any per
son within its jurisdiction the oqu»l
protection of the laws, it must be held
to ho unconstitutional. The question
of the validity of the laws of the state
legislative bodies and of congress
itself respecting labor is neither novel
nor enioue The supreme court h,<!
passed upon stteh questions so many
times that it is now unnecessary to
(*ntcr into a discussion of how each
specific question has been determined
It is sufficient to know, for the pur
pose of ruling on these demurrers,
that by the decisions the supreme
court has determined
First Labor is propertv. Slaugh
ter House Uasos, SI? F. S lid.
Second—The gpum-al **it*h* *'» ma’ e
a contract in relation to his business
is part of the liberty protected by the
fourteenth amendment, and this in
cludes the right to purchase and sell
labor except as controlled by the state
in the legitimate exercise of its police
powers. Lochner vs New York. 198
V S. 45.
Third Th»* nolire * ower of *> state
enables it “to prescribe iemulations to
promote health peace. »un—*N. **>.».
cation and good order of the people,
and to legislate so as to increase the
industries of the state, develop its
resources and add to Its wealth and
p’-nsi v ” Harbier vs Connolly,
113 U. S. 31.
Fourth The question of the state's
police power is not involved in con
tracts of employment between the
state as an employer and its em
ploye Atkins vs. Kansas, 191 IL S.
207.
Fifth Legislative enactments
should he recognized and enforced bv
the courts as embodying the will of
the people unless they are plainly and
palpably, beyond all question, in vio
lation of the fund 'mental law of the
constituUon Atkins vs. Kansas, 191
F S. 223.
The '-t to ouestjon undertakes *n
ertiticially. as 1 have shown, to make
it a crime for any wage or salary
earner |n »hj*< ♦«'•■>» »* ... ..
employment more than eight hours in
any one calendar day, "except in eases
when life or property is in imminent
danger" it is not premised, so far
as I am able to discover, either in its
title nr in the body of the act, upon
any theory that labor of all kinds f«
injurious to health and dangerous to
life and limb, nor that employment for
more than eight hours in any one cal
endar day In calculated to be tniii-1
ous to the health of all wage and sal
ary earners. Inimical to the ne-o of
socie'v detrimental to the morals of
the inhabitants of the territory, a
menace to the cause of education, or
generally antagonistic to the general
welfare of the community: and. on the
other hand, there Is no Intimation that
by thus limiting the hours of eninloy
ment. the Industries of the te'-’-'toi-v
will he Increased. Its resources exuerl
ence greater development, and Its
wealth and prosperity In* augmented,
it the legislature acted in the legiti
mate exercise of its police power, its
reasons for the oxer ise of this power
are undisclosed, and a failure to set
forth any reason at all. where the
h •isl.ituro acts under the police
power, is properly taken, if the nature
of the employment itself does not sug
gest one. not only as an inference hut
as a fact, that the reason does not
exist If must always he borne In
mind that legislative bodies have only
such powers as are expressly con
ferred upon them by the provisions
of the constitution under which they
act Mere caprice, or even an honest
desire to act In response to a popular
demand, can not validate a statute if
the same is expressly forbidden by tin*
onstltution.
Mm h of the argument in this ease
has centered around the decision <>f
1 'he supreme court in Loehner vs. New
Vork. supra, and Hunting vs. Oregon.
’7 Sun. (’t Hep 43?). In the former
(•>'<* the supremo court held that
"If must, of course, he conceded
that there is a limit to the valid ox
ercise of the police power by t ho
state*. There is no dispute concerning
this general proposition. Otherwise'
the* fourteenth amendment would
have no efficacy and the* legislatures
, of the states would have unbounded
power, and it would be enough to say
that any piece of legislation was on
«Cted |o ponspri'n t p »»••»— »1<q **■>,
health e>r the* safety of Hit* peoj'h
such Ie»gislution would be valid, r
matter how absolutely without foun
,1 fl-o r1..«rr 1 o ^')n
e>f the police power would be mere
pretext—become another and delusive
name for the supreme sovereignty of
the state to be exercised free from
constitutional restraint.
"We think the limit of the police
power has been reached and passed
in this ease. There is. in our jude
nient, no reasonable foundation foi
holding this to be necessary or ap
propriate as a health law to safeguard
the public health or the health of the
individuals who are following tht
trade of a baker.
"It might be safely affirmed that al
most all of-crnatio's more o»* less af
feet the health. There must be more
tlrwi the mere fact of the possible
existence of some small amount
unhealthiness to warrant legislative
, interference with liberty. It is un
fortunately true that labor even ir
, any department, may possibly carrx
i with It seeds of unhealthiness. But
are we all on that account at thf
mercy of legislative majorities? A
printer, a tinsmith, a locksmith, a
carpenter, a cabinetmaker, a drv
goods clerks, a bank's, a lawyer’s oi
a physician’s clerk or a clerk in al
most any kind of business, would al
come under the power of flu* legisla
ture on this assumption. No trade
no occupation, no mode of earning
erne’s living could escape this all-per
vading power, and the acts of the
legislature in limiting the hours ol
labor in all erni»l'»v»»'ents would he
valid, although such limitation might
seriously cripple the* ability of the la
borer to support himself and his fain
MV.
"Statutes of the nature of that un
deP review, limiting the hours ii
which grown and intelligent men may
j labor to earn their living, are inert
i meddlesome Interferences with tin
1 rights of the individual, and they art
J not saved from condemnation by thi
i claim that they are passed in the ex
| ercise of the police power and upon
i the subject of the health of the indl
| vidua! whoso rights are interfered
j with, unless thore be some fall
| ground, reasonable in and of itself, tc
! say that there is material danger tc
I the public health or to the health oi
the employes if the hours of labor
are not curtailed.
"It is impossible for us to shut out
eyes to the fact that many of the laws
of this character, while passed under
what is claimed to be the police power
for the purpose of protecting the pub
lie health or welfare, are In reality
passed from other motives. We are
| justified in saying so when, from the
character of the law and the subject
upon which it legislates, it is appar
ent that the public health or welfare
bears but the most remote relation
to the law.”
• • • •
My attention has been called to the
following from the decision of the hu
pretiie court in Hunting vs. Oregon
supra:
• • • •
The act under consideration pro
vided in Section 1:
"it is tile public policy of tlm state
of Oregon that no person shall he
hired, nor permitted to work for
w ages, under any conditions or terms
for longer hours or days of service
than is consistent with his healtli and
physical well-being and the ability to
promote the general welfare by his
increasing usefulness as a healthy and
intelligent citizen It is hereby de
dared that the working of any person
more than ten hours in one day, in
any mill, factory or manufacturing
establishment is injurious to the phys
! i ill health and well-being of such per
son. and tends to prevent* him from
| acquiring that degree of intelligence
that Is necessary to make him a use
f fu 1 and desirable citizen of the state.'
And Section 2:
"No ee-son shall lie employed i”
any mill, factory or manufacturing es
tahlishment in th's state more that:
ten hours in any one day, except
watchmen and employes when en
ciged in making necessary repairs, oi
in case of emergency, where life oi
property is in imminent danger; pro
"I'ted. however, employes may work
overtime not to exceed three houm
in any one day, conditioned that pay
mcnt be made for said overtime at
the rate of time and one half the reg
: ular wages."
It is such a law ns the above that
the supreme court held to be eonstl
I tutlonal a law based upon the exer
cise of the police power of the state
This act is as different from the pet
n question as daylight iu from dark
ness For the sake of argument, b*
: us assume that the territorial legis
lature intended to enact this law as
health measure. I toes not our con
stitution seek to protect as fully the
health of him who engages in private
enterprise and bv his own labor sup
ports and educates his family as it
docs the health of him who offers his
labor for sab* in order to accomplish
the same laudable purpose? If A
owns ten acres of land and B. bis
neighbor, owns but one acre*, how can
it be said that A can work for him
self any number of hours per day
and. though be needs It’s services for
i more than eight hours per day and B
ueslres to sell his services for more
than eight hours per day. yet B. if
he sells his services for ten hours
! per day to A. will be violating the law,
and A also may be liable? Or. sup
pose A is a bookkeeper and B. his
neighbor. Is a carpenter. A desires
to add to the comfort of his home j
by having certain alterations made,
and B desires to do the work even
ings after his regular employment for
the day is finished There is no
; property or life in imminent danger,
it is merely a comfort for A and his
family, and B needs the extra money
lie can earn to buy books for his li
brary Assuming that B on a .certain
das did work for a contractor eight
hours, and on the same day worked
for A four hours, how can it be said
that either A or B has violated the
j law? In thLoeheadsr etaoin in m!
law? In the Lochner case, supra, the
supreme court considered a law at
1 tempting to fix ten hours as the limit
for hours of labor of a baker as a
"mere meddlesome interference.” Un
der what possible theory can the legis
lature say that the law it has enacted,
in Instances as above, is a proper ex
j creise of the police power of the state?
1 ... ... .1._ ...... ii... i
litless and demonstrate how such laws
! are in direct violation of the four
teenth amendment to our constltu
t Ion.
Under the police power of the state
beneficial laws have been enacted for
the purpose of regulating the hours
of labor in mines, manufacturing es
j tablishments and other Industries and
J occupations. The wisdom of such laws
1 is generally recognized. They are up
held by the courts, and rightly so. But
that does not mean that it is funda
mentally correct to say that every
man. Irrespective of the nature of the
i work he follows, shall be precluded
from selling more than eight hours of
his labor in any one day except in
cases of emergency. We have an
eight-hour law applicable to labor in
1 certain kinds of mining It Is based on
: 'he right principles. If a similar law
Is needed to regulate the hours of labor
i in any other industry, let the neces
! sarv premises be stated and its en
J actment be another step in our on
j ward march toward the betterment of
[ social and economic conditions. But
j to take the miner, the teamster, the
I fisherman, the woodchopper, the farm
> laborer, the clerk, the carpenter, the
j machinist, the watchman, the waiter,
| the cook, and each and every other
kind of wage or salary earners, bind
| them In the same bundle, enact a law
regardless of and under no theory
of the police power of the state, make
no provision for payment for over
1 time if required to work during an
I emergency, and then say to them: If
I you work for another for wages or
salary more than eight hours in any
one calendar day, except when life or
property Is in Imminent danger, you
are a criminal, is unreasonable and
manifestly unjust.
The nature of the service performed
by the defendant Coleman for the de
fendant cornomtion is not alleged in
the Indictment But even if it ha-'
been specifically set forth, there '
nothing in the act to indicate that the
legislature acted with any oonside’"'
tion of, what the police power of the
state means. It was the duty of the
legislature to embody in the act the
reason for the act. That function
could not be delegated to the court
• • • •
Not only Is It the court's right, but
it Ih the court’s duty to take judicial
notice of the* peculiar conditions ex
Istlng In this territory. From south
)f the 55th parallel of latitude the ter
ritory extends far north of the Arc tic
rtrcle, and from east of the* 13licl me
ridian of longitude to beyond the 174th
meridian east longitude* its winters
me long, its summers short; its in
dustries. with the exception of lode*
and underground placer mining, arc*
controlled almost entirely by - limatic
changes Incident to tin* change* of Hen
“sons; its area is more than half a mil
Hon square miles; the open season Id
navigation, except on the Pacific. is .
short; its inhabitants, all told, num
her less than loo.mom people* It is ;
peopled by tin* vigorous and energetic.!
It Is a country in the* making. It
may bo said that this is as much a
matter of legislative notice as it is1
a matter of judicial notice This is
true. Hut the failure* on tin* part ot
a legislative* body to act in accord
ance with the* plain provisions of tin*
fourteenth amendment affords no
valid excuse* for a court to also dis
regard the amendment.
* * • •
I am satisfied beyond all doubt that I
Chapter 55 of the Session Oiws of
1!' 17 is plainly and palpably beyond
all question in violation of the four
teenth amendment to the constitu
tion of the United States i am also
of the opinion that it is class legis
lotion and prohibited by the organic :
act.
The demurrers tire, therefore, sits-1
tatned. CHARLES E. BUNNELL,
CHARLES E BUNNELL,
District Judge.
• * • #
Immediately after the tiling of the
foregoing decision the district atlor
nov rtXIIIPUll./l 11V lolnirruio uni luirlt t
from the attorney general to appeal
the case to the supreme court of the
United States, which was granted, and
a writ of error was Issued on May 7,
1918. Later, on receipt of the trail
script in the case, this authority was
revoked and he was ordered to take !
in further steps to perfect it The
following letter to lion. George It
(Itigsby. territorial attorney general,
explained the action of the depart
up nt:
"Washington. June 8. 1918.
I on, George H Grigsby, Juneau:
Your telegram and letter, dated
M. v 17, and addressed to the attorney 1
general, with reference to the writ of
'•rror sued out from the supreme court
of the. United States in the case of
United States vs. Northern Commer
cial Company and George A Coleman.!
ar. before me for reply They would
have been responded to earlier, hut
It was desired to Inspect the tran
script of record and give the matter
full consideration before disposing
of :t.
This department regrets that It
can not necede to your request that
th writ of error should he permitted
to remain on the. calendar in order
that you might enter an appearance
as attorney general for the territory
of Alaska, pursuant to Chapter 411,
Laws of Alaska. 1917.
The Revised Statutes, Section 359,
expressly provide that—
The attorney general and solicitor
general shall conduct and argue suits
Sftd writs of error and appeals In the
supreme court • • • In which the
United States is interested.’
While the present case arises out
of a statute passed by the territorial
legislature of Alaska, it can not be
said to be one in which the United
States is not interested, in view of the
fact that the United States is the
party plaintiff of record. Of course
all territorial laws in conflict with
n> acts of congress are ultra vires
the territory and void Chapter 4k
■ f he Laws of Alaska for 1917. page
S3, can therefore confer no authority
upon the attorney general of the ter
ritorv to prosecute writs of error ‘In
which the United States is Interested,'
ontrary to the provisions of the Re
ilsed Statutes concerning the matter.
"It Is clear that this department
can neither divide nor escape the re
sponsibility imposed upon It by law
determining what writs of error
shall or shall not he prosecuted before
the supreme court, and whether the
merits of the instant rase do or do
not justify mi effort to reverse the
judgment of the court below The
statute in question forbids the em
ployment of all wage-earners and sal
a’-v-earners for more than eight hours
in any day except in canes where life
or property is in imminent danger
It is not limited in any way to un
hcalthful, hazardous or exacting occu
pations. nor to children, women or
other classes demanding special car*
or protection. It has not such osten
sihb* relation to the public health a
the statutes upheld in Holden vs.
Hardy, Hilt \ S. and Hunting vs.
Oregon. IMd l\ S 41!*;. That tin- right
I Of It DKOISION
to earn a living is a property right
and one which can not lie taken away
without due pro( ess of !.i\\ or ade
quate justttnation under the police
power is axiomatic.
“This department does not see any
ground upon which argument could
be based in support of the validity of
the statute in question, and I am
therefore Instructed by the attorney
general to advise you that the writ
of error which has been sued out will
he dismissed, and that the case will
not l»e docketed in tin- supreme court.
The I’nited States attorney for the
Fourth division of the district <>t
\Iaska has been advised accordingly.
“Very respectfully (signed)
“JNO W. DAVIS.
“Solicitor (leneral ”
• • • •
The Democratic party is on record
: being in favor of eight hour laws
v here practical and not unconstitu
tional. In proof of this statement ref
erence is requested to the railroad
employes’ eight-hour law. passed by
a Democratic congress in 1
Delegate Sulzer adopted an eight
hour day in his mines years before
the eight-hour legislation in \laska
iii. i.iiiwnin^ f'AUaci.s 1 I I M11 III' lfM
ter, dated May 2f», l!i]S, to Samuel
Compers, president of the American
Federation of Labor, shows conclu
sively his present and past altitude
on this subject:
"I might say to you that 1 have1
studied with great interest for many
years the matter of gi\ing the work
man a fair day and a fair wage I
have, noted for years, also, the work
being done by you and the organiza
tion of which you are president for
an eight-hour day. Many years ago I
became convinced that eight hours
was a proper standard for a day's
■ - - --, .
work. And that I was thoroughly con
vinced is best showed by the* fact that,
as a mining operator, on a small
scale*, in Southeaste rn \Iaska, 1 estab
lished an eight hour day at iiiv prop
erty. I die! that alum f fifteen >eytrs
ago. and long before* tin* equity of the
eight hour day was as g«m*rally rec
ognized as at the* present."
• « • •
Vote for Sul/.e-r tor delegate the*
man who has the* interests of Alaska
at heart, and is working tor all Alaska
:il! tie turn an I not injuring
Alaska b> indulging in personal petty
quarrels; tile man who stands with
an el for the- administration, ami with
l’r**sid»*nt Wilson in the roielurf of
tin war. the* man to whom the- Presi
de*nt and he-ads of Mn ♦ I * * p; i r t mints
will listen ami to whom * .* rv ollicial
door in Washington i op<-n !n* all
know he- is ne*vit m pi it• I h\ e• |, h
mot i ve»s
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