and freight between the port of Boston and other States and countries. I advise you, therefore, that these provisions have no application to the companies in question.

Very truly yours,

HERBERT PARKER, Attorney-General.

Constitutional Law - Maximum Day's Work — Cities and Towns Counties.

The Legislature may constitutionally limit the duration of a day's work for laborers, workmen and mechanics, employed by or in behalf of the Commonwealth, to a period of eight hours; but a like provision applicable to counties, and to cities and towns which have accepted the provisions of R. L., c. 106, § 20, making eight hours a day's work for the employees thereof, would be unconstitutional, as taking property without due compensation and without due process of law.

In respect of legislation fixing eight hours as a day's work for employees of counties, cities and towns, a county is not to be distinguished from a city or town.

His Excellency JOHN L. BATES, Governor.

JUNE 15, 1903.

SIR-Your Excellency has required my opinion upon the legal, and, more specifically, upon the constitutional, aspects of an act entitled "An Act to constitute eight hours a maximum day's work for public employees." The act contains the following provisions :

That eight hours shall constitute a day's work for all laborers, workmen and mechanics employed by or on behalf of the Commonwealth or any county;

That every contract to which the Commonwealth or any county is a party, involving such employment, shall contain a stipulation that no such employee shall be permitted or required to work more than eight hours in any one day;

That the wages to be paid shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality where such public work is done;

That this act shall apply to all such employees engaged upon any works which are or intended to be the property of the Commonwealth, or of any county therein, or of any city or town which has accepted the provisions of R. L., c. 106, § 20, whether such employees are employed by public authority, by a contractor, or by any other private person;

That any agent or official of the Commonwealth or of any county violating any provision of this act shall be subject to a penalty of fifty dollars for each offence;

That the provisions of the act shall not apply to contractors or sub-contractors under contracts made prior to the passage of the act, or to employees of charitable institutions.

If this were an act regulating the hours of labor and the amount of wages to be paid between individuals or private corporations and their employees, it would be, in my opinion, unconstitutional, as taking property without due compensation and without due process of law. It is not a mere declaration that, in the absence of special contract to the contrary, eight hours shall be a day's work, but it prohibits the making of any contract for a different number of hours' work. I am of opinion that it is not in the power of the Legislature to abridge or extinguish the right of parties to fix, by mutual consent, the number of hours that shall constitute a day's work, or the wages that shall be paid, or to prohibit or make void the agreements of the parties themselves in the premises, except where the health, safety or morals of the community are concerned, which justifies the enactment of police regulations, as in the case of restricting and defining the hours of employment of women and children (Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383), or of persons working in an unhealthy employment (Holden v. Hardy, 169 U. S. 366).

The critical provisions of the statute before me are those made applicable only to laborers upon public works, either of the Commonwealth or counties, or of cities and towns which have accepted the provisions of R. L., c. 106, § 20. So much of the statute as applies to cities and towns which have accepted the act last cited is to my mind plainly unconstitutional, as upon reasons expressed in the opinion of the Attorney-General of April 24, 1901. The chapter of Revised Laws cited merely provides what shall be a legal day's work, in the absence of an agreement by the parties to select, by mutual consent, some other standard or measure of service, analogous, in principle, to that of another statute fixing six per cent. as the legal rate of interest. See R. L., c. 73, § 3. The proposed enactment, on the other hand, provides that no laborer, workman or mechanic engaged upon any works which are or are intended to be the property of such city or town shall be permitted or required to work more than eight hours in any one day. It seems needless to specifically call attention to that which is obvious, viz., that by accepting the former eight-hour law, contained in the section of the Revised Laws above quoted, such cities and towns have not accepted, and do not accept, the provisions of this new enactment, even if it be assumed that they could have legally and in advance bound themselves to such an obligation.

The Attorney-General, in the opinion above referred to, assumed a distinction between a county and a municipal corporation, considering the former as a mere political subdivision of the Commonwealth, and, as such, having no private right in its own property, such as is possessed by municipalities. No reason is given for the distinction, and it appears to have been made rather by way of illustration in argument than as a formal adjudication; and the contrary has since been expressly held, in a well-considered decision by the Supreme Court of Indiana, where the legal status of a county was directly, rather than incidentally, adjudicated. Street v. Varney Electrical Supply Co., 66 N. E. 895. I am therefore of opinion that, so far as this bill applies to counties, it is unconstitutional, for the reasons set forth in, and essential to, the conclusions in the above-cited opinion of the Attorney-General.

So far as the provisions of the new act relate to the Commonwealth, it is obvious that, beyond the objections that might well be made to a prescribed uniform wage for incompetent as well as competent employees, the bill, if approved, will result in a great increase of cost to the Commonwealth for all its public works; because it would seem that no contractor would bid for such work, in which unskilled labor is to be employed, except at figures predicated upon the highest rate of wages that might be current during the performance of the contract. There are decisions that such a regulation by the Commonwealth as to its own public works is unconstitutional. See Ex Parte Kuback, 85 Cal. 274; State v. Norton, 5 Ohio N. P. 183; People v. Coler, 166 N. Y. 1. But I am, nevertheless, of opinion that the Commonwealth may constitutionally establish such a rule for itself as it may choose; for it would be unavailing for any contractor or any employee to complain that his freedom of contract is abridged by such an act, for he need not work in behalf of or for the Commonwealth unless he wishes to; and it is open to the Commonwealth to prescribe that all persons who do work for it, either directly or indirectly, shall be employed upon such terms as it may require.

There may be constitutional objection, but I do not think it conclusive to such a rule, made by the Commonwealth as principal, as shall require that all its agents shall pay their employees a particular or arbitrary price, greater than that which others of like capacity could earn for like service in an open market, and shall require them to work only a certain number of hours; for this, in effect, may be held to require the expenditure of money, raised by taxation, for the benefit of a special and preferred class of persons called laborers, workmen and mechanics. It is not wholly clear how far the Legislature may go in paying gratuities from the public treasury to any class of its citizens, whether directly and

avowedly, or through the means of paying them a high price for short hours of labor; but this question must be largely determined by the discretion of the Legislature itself. See Opinion of the Justices, 175 Mass. 599.

It does not lie within my proper province to discuss the policy of the legislation, but I deem it not wholly inappropriate to suggest, as sustaining the reason of my opinion upon the legal aspects of the question, the axiomatic principle that citizens who must, through taxes imposed upon them, pay for public works, are entitled to have such work done under such conditions of economy as they could themselves adopt in their own enterprises, through the employment of labor during as many hours in the day, and for as low wages, as the legitimate conditions of business might permit. The excess which is paid on account of short days and high wages, fixed without discrimination as to excellence of work, can differ but little in principle from a donation exacted from the tax payer and bestowed upon the laborer.

It is to be noted that the act distinguishes between employees upon public works in general and those who are in the service of charitable institutions. If the doctrine be sound, that the Commonwealth may make whatever rule it sees fit for the employment of labor upon its own works, I think it may make any discrimination as to employees, however arbitrary it may be. While citizens are entitled to the protection of equal laws, they are not equally entitled to be employed by the State, nor are they absolutely entitled to be employed upon equal terms. The Commonwealth, as proprietor, in making rules for its agents to follow, may exercise its own discretion, if prompted by the public welfare, even at the expense of its own interest, for the incidental benefit of some selected favorite. Therefore, though this discrimination against employees of charitable institutions may be ground for serious objection, in reason, it is, I think, nevertheless constitutional.

So far as this act applies to hours of labor in public works of the Commonwealth, it is similar to the act of Congress of Aug. 1, 1892 (27 U. S. Sts. at Large, 340). The validity of this act, so far as I can learn, has not yet been tested in the courts. The earlier United States statute (15 U. S. Sts. at Large, 77), which provided simply that, in the absence of a special contract, eight hours should constitute a day's work, was held to be valid, as merely prescribing a uniform rule to be followed by those agents when there was no reason why a different length of day should be contracted for.

I am, with great respect,
Very truly yours,

HERBERT PARKER, Attorney-General.

Pilots of Boston Harbor Pilot Commissioners·

scribing Specific Channel.

Order pre

Under the provisions of R. L., c. 67, § 2, and in the absence of regulations to that effect imposed by the Congress of the United States, the Pilot Commissioners have no authority to require that, when in charge of heavy vessels, pilots shall enter and leave the port of Boston by a specific channel.

JULY 8, 1903.

Messrs. JOHN C. Ross and JUSTUS A. BAILEY, Pilot Commissioners.

GENTLEMEN : - In your letter of July 2, you state that you have been requested by the United States Engineer to order Boston pilots to enter and leave the port, when in charge of large, deep vessels, by the new Broad Sound channel, and you require my opinion whether you have authority to issue such orders.

Section 4235 of the Revised Statutes of the United States provides :

Until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the states respectively wherein such pilots may be, or with such laws as the states may respectively enact for the purpose.

R. L., c. 67, § 2, provides that the Pilot Commissioners shall cause the laws and regulations for pilotage within the harbor of Boston to be duly observed and executed.

The regulations for pilotage are found in St. 1862, c. 176, at the end of the chapter. These regulations do not provide for any determination by the Pilot Commissioners through which channel or channels vessels shall be taken, and I am not informed in your letter that the regulations have ever been altered in that respect.

Therefore, I am of opinion that you have no authority, of your own motion, to require pilots to take one channel, rather than another. If, however, the proper authorities of the United States government order that under certain circumstances vessels must pass out and in through Broad Sound channel while the main ship channel is being repaired, and communicate such order to you, as the head of the pilots of Boston harbor, you should transmit the order to the pilots. The failure by any pilot to obey the order would be ground for his suspension, in accordance with R. L., c. 67, § 2.

Very truly yours,

HERBERT PARKER, Attorney-General.