Keefe v. People

• Decision Date: 02 July 1906
• Citation: 37 Colo. 317,87 P. 791
• Parties: KEEFE et al. v. PEOPLE.
• Court: Colorado Supreme Court

87 P. 791

37 Colo. 317

KEEFE et al. v. PEOPLE.

Supreme Court of Colorado

July 2, 1906

Rehearing Denied Dec. 3, 1906.

In Banc. Error to District Court, City and County of Denver Samuel L. Carpenter, Judge.

John A Keefe and others were convicted of employing laborers on public improvements in the city of Denver for a longer period than 8 hours a day, and they bring error. Affirmed.

F. A. Williams and G. Q. Richmond, for plaintiffs in error.

N. C Miller, W. R. Ramsey, John H. Murphy, and W. F. Hynes, for the People.

GABBERT, C.J.

The defendant was convicted under an information based upon the following statute: 'In all work hereafter undertaken in behalf of the state or any county, township, school district municipality, or incorporated town, it shall be unlawful for any board, officer, agent, or any contractor or subcontractor thereof to employ any mechanic, workingman, or laborer in the prosecution of any such work for more than eight hours a day.' The second section of the act permits work in excess of eight hours a day in emergency cases, provided that hours in excess of eight a day shall be treated as constituting a part of a subsequent day's work, and that in no one week of seven days shall there be permitted more than 48 hours of labor. The third section declares a violation of the foregoing provision a misdemeanor, and the penalty imposed thereby is a fine or imprisonment, or both in the discretion of the court. 3 Mills' Ann. St. Rev. Supp. §§ 2801 a, b, c. The case was tried upon a stipulation of facts, from which it appears that the defendants were contractors with the city and county of Denver, by which they undertook, and were engaged in, the construction of a sanitary sewer belonging to the city, and employed Ernest Koenneker to do work on it for more than eight hours in each calendar day, viz., for a period of nine hours a day, and paid him the regular scale of wages; that Koenneker voluntarily entered upon his work, and there was no extraordinary emergency or necessity for his working more than eight hours a day for the protection of property or human life. It was also stipulated that the labor performed by Koenneker was healthy, outdoor work, not dangerous, or in any way injurious to life, limb, or health, and could be performed for a period of nine hours during each working day of the week without injury or harm to him; that such work was in no way more dangerous to health or hazardous to life or limb, or the general welfare of Koenneker or any other person engaged therein than the labor performed by persons doing the same kind and character of work as the employés or contractors having contracts to do the same kind of work for private persons or private corporations. It was upon this state of facts that defendants were adjudged guilty and fined. From that judgment they bring the case here for review on error.

Counsel are agreed that this statute does not fall within the police power of the state. The Attorney General concedes that it cannot be sustained as a valid exercise of such power, since it is inhibited by the decision of this court in Re Morgan, 26 Colo. 415, 58 P. 1071, 47 L.R.A. 52, 77 Am.St.Rep. 269, and as that proposition is within the ban of practically all decisions of federal and state courts in similar cases. If it can be upheld at all, the Attorney General says, it must be solely upon the principle that the state may prescribe for itself and its subordinate political subdivisions, the conditions upon which all public work shall be performed; and as counties, townships, school districts, and municipalities are but mere political subdivisions of the state government, its auxiliary organizations, or agencies, for the purpose of local government, the state, as the principal, may impose upon these agencies precisely the same conditions with respect to the doing of their public work that it can prescribe for itself. We agree with counsel that this statute, if valid, is so upon the ground that the state, in its proprietary capacity, may properly prescribe for itself and its auxiliary arms of government the terms and conditions on which work of a public nature may be done. It cannot be upheld as an exercise of the sovereign police power, as has been decided by the Supreme Court of the United States and every state court of last resort that has had occasion to consider the question. The latest decision of the Supreme Court of the United States on that question is Lochner v. N.Y., 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, in which many of the cases are reviewed, and the distinction between a case like this and the one under consideration was pointed out. Whether the statute can be upheld on the ground relied upon by the Attorney General the authorities are not in accord. Probably the leading case against such legislation is Cleveland v. Clements Construction Co. (Ohio) 65 N.E. 885, 59 L.R.A. 775, 93 Am.St.Rep. 670. Other cases cited by defendants to the same proposition are: Ex parte Kubach (Cal.) 24 P. 737, 9 L.R.A. 482, 20 Am.St.Rep. 226; Seattle v. Smyth (Wash.) 60 P. 1120, 79 Am.St.Rep. 939; People v. Orange Co. (Co. Ct.) 75 N.Y.S. 510; Id. (N.Y.) 67 N.E. 129, 65 L.R.A. 33; People ex rel. Lodgers v. Coler, 166 N.Y. 1, 59 N.E. 716, 52 L.R.A. 814, 82 Am.St.Rep. 605. Ex parte Kubach was referred to by this court in Re Morgan, supra, not with the intention of approving its doctrine, but as an illustration of the extent to which some courts go in denying the right of the Legislature to pass laws of this character. The case was cited because it went much further than we did in the case then under consideration, and in that sense was authority for the conclusion there reached. In the Kubach Case, however, the court merely held the ordinance void in so far as it attempted to create a criminal offense.

These authorities are based upon the proposition that with respect to the carrying on of works of improvement by municipal corporations, they are as free from legislative restraint by statutes of this character as are private corporations in carrying out the objects of their incorporation; and, since private corporations may not thus be controlled, it follows that municipal corporations cannot be; that a municipal corporation, in exercising that branch of its powers which may properly be designated as 'private,' concerning its purely private rights, are like private corporations, free from such control of the legislative department of government. On the other side, the leading case, and the one on which the Attorney General mainly relies, is Atkin v. Kansas, 191 U.S....