# Atkin v. Kansas/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
191 U.S. 207
Atkin v. Kansas
Argued: May 1, 1903. --- Decided: November 30, 1903
The case has been stated quite fully, in order that there may be no dispute as to what is involved and what not involved in its determination.
No question arises here as to the power of a state, consistently with the Federal Constitution, to make it a criminal offense for an employer, in purely private work in which the public has no concern, to permit or to require his employees to perform daily labor in excess of a prescribed number of hours. One phase of that general question was considered in Holden v. Hardy, 169 U.S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, in which it was held that the Constitution of the United States did not forbid a state from enacting a statute providing-as did the statute of Utah there involved-that in all underground mines or workings and in smelters and other institutions for the reduction or refining of ores or metals, the period of the employment of workmen should be eight hours per day, except in cases of emergency, when life or property is in imminent danger. In respect of that statute, this court said: 'The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction, or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employees, and so long as there are reasonable grounds for believing that this is so, is decision upon this subject cannot be reviewed by the Federal courts. While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases, generated by the processes of refining or smelting.'
As already stated, no such question is presented by the present record; for the work to which the complaint refers is that performed on behalf of a municipal corporation, not private work for private parties. Whether a similar statute applied to laborers or employees in purely private work would be constitutional is a question of very large import, which we have no occasion now to determine or even to consider.
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 14th 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, 41 L. ed. 832, 17 Sup. Ct. Rep. 427; Williams v. Fears, 179 U.S. 270, 45 L. ed. 186, 21 Sup. Ct. Rep. 128. 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, 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 employments, to eight hours, without reduction of compensation for the day's services.'
'If a statute,' counsel ovserves, '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 ten 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 case 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, 82; United States v. Baltimore & O. R. Co. 17 Wall. 322, 328-9, 21 L. ed. 597, 600; Mt. Pleasant v. Beckwith, 100 U.S. 514, 525, 25 L. ed. 699, 701; Piqua Branch of State Bank v. Knoop, 16 How. 369, 380, 14 L. ed. 977, 981; Hill v. Memphis, 134 U.S. 198, 203, 33 L. ed. 887, 889, 10 Sup. Ct. Rep. 562; Barnett v. Denison, 145 U.S. 135, 139, 36 L. ed. 652, 653, 12 Sup. Ct. Rep. 819; Williams v. Eggleston, 170 U.S. 304, 310, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617. 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 Clinton v. Cedar Rapids & M. River 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 in the state, and the corporation 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 Re Dalton, 61 Kan. 257, 47 L. R. A. 380, 59 Pac. 336; State ex rel. Barton County Attorney v. Lake Keon Nav. Reservoir & Irrig. Co. 63 Kan. 394, 65 Pac. 681; State ex rel. Atty. Gen. v. Shawnee County, 28 Kan. 431, 433; Frederick 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 own 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 one of its instrumentalities, the work was of a public, not private character.
If then, the work upon which the defendant employed Reese 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 employees, 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 employee 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 having 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 review 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 employee to perform labor upon that work in excess of eight hours each day is in derogation of the liberty both of employees and employer, it is sufficient to answer that no employee 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 a 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 is 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 employee the equal protection of the 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 purposes of this case, that the work performed by defendant's employee is not dangerous to life, limb, or health, and that daily labor on it for ten 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 ground 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 CHIEF JUSTICE, Mr. Justice Brewen, and Mr. Justice Peckham dissent.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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