Bradford v. State

• Decision Date: 17 November 1915
• Docket Number: (No. 3709.)
• Citation: 180 S.W. 702
• Parties: BRADFORD et al. v. STATE.
• Court: Texas Court of Criminal Appeals

180 S.W. 702

BRADFORD et al. v. STATE.

(No. 3709.)

Court of Criminal Appeals of Texas.

November 17, 1915.

On Rehearing, December 15, 1915.

Appeal from Bexar County Court; Nelson Lytle, Judge.

G. H. Bradford and another were convicted, and appeal. Affirmed.

Ed H. Wicks and Henry, McCloskey & Robertson, all of San Antonio, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Each of the appellants was convicted of violating the eight-hour labor law enacted at the regular session, Thirty-Third Legislature, p. 127, and assessed the lowest punishment.

This is a misdemeanor case tried in the county court. The statement of facts was filed after the term of court had adjourned without any order of the court allowing this. Therefore the motion of the Assistant Attorney General to strike out and not consider the statement of facts must be sustained.

Appellants attack said act of the Legislature claiming that it is unconstitutional and void on several grounds.

By section 1 of the act (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246e), it is enacted that eight hours shall constitute a day's work in one calendar day, for all workmen or mechanics now employed, or who may hereafter be employed, by or on behalf of the state or of any county, municipality, or political subdivision of the state, where such employment, contract, or work is for the purpose of constructing, repairing, or making buildings, bridges, roads, highways, streams, levees, or other work of a similar character requiring the services of laborers, workmen, or mechanics.

The second section provides that all contracts hereafter made by or on behalf of the state, or any of said political subdivisions, with any corporation, person, or association of persons for the performance of any work, shall be deemed and considered as made upon the basis of eight hours constituting a day's work, and makes it unlawful for any of such persons having a contract with the state, or any of said political subdivisions, to require or permit any such laborers, etc., to work more than eight hours per calendar day in doing such work, except in case "of emergency, which may arise in times of war, or in cases where it may become necessary to work more than eight hours per calendar day for the protection of property, human life or the necessity of housing inmates of public institutions in case of fire or destruction by the elements"; and that, in such emergencies, such laborers, etc., who work to exceed eight hours per day, shall be paid on the basis of eight hours constituting a day's work; and that not less than the current rate per diem of wages in the locality where the work is being performed shall be paid to such laborers, etc.; and that every contract hereafter made for the performance of work for the state, or any of said subdivisions, must comply with the requirements of this section. It then further provides that the act shall not affect contracts in existence at the time it takes effect, nor affect the present law governing state and county convict labor while serving their sentences as such.

The next section provides that any person, or any officer, agent, or employé of any person, corporation, or association of persons, or any officer, agent, or employé of the state, county, municipality, or any legal or political subdivision of the state, county, or municipality, who shall fail or refuse to comply with the provisions of the act, or who shall violate any of the provisions, shall, on conviction, be punished by a fine of not less than $50 nor more than $1,000, or by imprisonment not to exceed six months, or by both; and that every day of such violation shall constitute a separate offense.

Section 4 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246g) repeals all laws in conflict, and expressly the one designated in the section.

Section 5 states that:

"The fact that there is no adequate law now upon the statute books defining what constitutes a legal calendar day's labor, and regulating the hours of labor upon public work, and the further fact that many laborers are required to labor for an excessive number of hours in one day without intermission, to the material injury of their constitutions and health, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three days be and the same is hereby suspended, and that this act take effect and be in force from and after its passage, and it is so enacted."

The complaint and information are drawn strictly in accordance with the act prescribing the offense. And they go further and negative each and all of the exceptions mentioned in the law, and then aver that on or about September 9, 1914, in Bexar county, Tex., and continuously from said date until December 9, 1914, G. H. Bradford and C. O'Neil were the agents and employés of the Alamo Construction Company, a copartnership and association of persons, composed of C. G. Sheely and said Bradford and divers other persons whose names are unknown and cannot be set out, had an employment and a contract with said Bexar county for the purpose of constructing a bridge known as the Borregas Bridge on the Borregas Road across the San Antonio river, the construction of which required the services of laborers, workmen, and mechanics; and that said Bradford and O'Neil, agents and employés of said copartnership and association, did then and there unlawfully require and permit several persons, viz., J. A. Crawford, a mechanic, and others, naming them, being laborers, to work more than eight hours per calendar day in constructing said bridge. And then, as stated, negativing that such work was being done in case of any of the emergencies stated in the law; and, further, that at the time of the taking effect of said act, said contract for the construction of such bridge was not in existence, and that neither of the said laborers, naming them, were state or county convicts, and not serving sentences as such.

We will here state substantially all of the grounds upon which appellants contest the validity of said law. They are: (1) That it is unconstitutional, in that it attempts to abridge the right of contract between employé and contractor, and denies the employé the right to sell his labor as he desires under section 19, art. 1, of our Constitution; (2) that its uncertainty and indefiniteness as to the emergencies provided for in the act render it void; (3) because the title of the act does not mention contractors, or persons doing work under a contract, as required by section 35, art. 3, of the Constitution; and (4) that the complaint and information are insufficient, in that the said act of the Legislature attempts only to create an offense when work is being done by, or on behalf of, the state, or said respective political subdivisions, and that they nowhere are charged with doing work by, or on behalf of, the state, or any political subdivision.

In our opinion, neither of his contentions is sound.

We think it unnecessary to enter into any extended discussion of the various questions raised. The said act of the Legislature bears indisputable evidence on its face that it followed substantially, if not literally, both the act of the Legislature of Kansas of 1891 (chapter 114), of that state, and of the act of Congress of August 1, 1892 (chapter 352, 27 Stat. at L. 340 [U. S. Comp. Stat. 1913, §§ 8918-8920]). The said Kansas act was sustained as constitutional by the Supreme Court of Kansas in State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343. And see, also, In re Dalton, 61 Kan. 257, 59 Pac 336, 47 L. R. A. 380. The said Dalton Case, supra, was taken to the Supreme Court of the United States, and the Kansas act fully sustained by the United States Supreme Court as in no way violating any provision of the United States Constitution. Atkin v. Kansas, 195 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148. The said act of Congress was modeled after, and substantially as to the United States, the same as said Kansas act was applicable to that state. The United States Supreme Court, in Ellis v. United States, 206 U. S. 246, 27 Sup. Ct. 600, 51 L. Ed. 1047, 11 Ann. Cas. 589, fully sustained the said congressional act as constitutional under the Constitution of the United States.

In 1 State and Federal Control of Persons and Property, Tiedeman, p. 338, it is said:

"Another common form of statutory regulation of the hours of labor is the provision that workmen on public works shall not be required to work more than the prescribed number of hours per day. Where the regulation is applied to the employés of the city, county, or state government, who are employed and paid directly by these respective governments, the constitutionality of the regulation cannot be questioned; for the reason that these respective governments, in enforcing such a regulation, are only exercising the general right of a party to a contract to insist on a certain provision in the contract of hiring. And it would seem also to be rational to uphold the regulation as a constitutional exercise of authority, when it is applied to those laborers who are engaged on public works in the employ of contractors to whom the work has been let on contract, if the contract has been let after the enactment of the regulation. The requirement as to the hours of labor is properly considered as entering into and becoming a part of the contract between the government and the contractor. * * *"

The...