validate laws affecting all the members of any class alike, but only to laws affecting particular persons, or all persons in a particular locality. They have consequently only an indirect bearing upon general class legislation. But the constitutions of several states have the provision more precise, specially affecting labor; as that "the legislature shall pass no local or special law regulating labor, trade, manufacturing, mining, or agriculture." Possibly this word "special" may extend the prohibition to legislation for special classes of laborers, as well as special localities.

Such is the wording of the constitutional provisions; and with all deference to the opinions of these high courts, the writer would submit the view that these four cases, while undoubtedly well decided upon the freedom of contract point, should stand upon that point alone. No one of the laws (except in so far as the Ohio law was restricted to railroads more than thirty miles long) fairly presents a case of class legislation. They all applied to all members of the general class of industrial laborers alike throughout the state; and the discrimination between such labor and farm or domestic labor carried its reason on its face; it was surely not an arbitrary distinction within the meaning of Cooley's well-known

17 Pa. C., 3, 7; Ky. C., 59; Mo. C., 4, 53; Tex. C., 3, 56; La. C., 46.

definition.18 Otherwise the statutes above cited of Maine, Pennsylvania, Wisconsin, Indiana, and Illinois, which all except farm or domestic labor, and many similar laws, quoted below in §§ 13, 14, must be held unconstitutional also. The true doctrine would seem to be that a law is not class legislation which applies to all the members of the class alike, and where it rests on no arbitrary ground, but carries upon its face some reason of public health, safety, or morality, upon which it may be defended; 19 and the distinction between indefinite employment, like that of a domestic servant, and the definite hours of a factory or workshop, or even general mechanical labor, is surely such a reason. But the

18 Cooley, Const. Lim., *393.

Thus, a statute allowing pedlars' licenses to be issued only to lame persons, was held to involve an arbitrary distinction, and declared unconstitutional in Pennsylvania. Britain's Case, 36 P. L. J., 17.

And in Michigan a libel law applying only to newspapers, and exempting them from liabilities for libels to which ordinary persons were still subject, was declared unconstitutional for the same reason. Park v. Free Press Co., 72 Mich., 560.

And finally, the case of State v. Julow, 31 S. W., 781 (see § 53), held clearly that any discrimination in a statute between union and non-union men made it unconstitutional as class legislation.

See also §§ 3, 4, 15, 20, 21, 23, 25, 32, 39, 52, 57, 61, 62. 19 See, however, Wheeling Bridge Co. v. Gillmore, 8 O. C. C., 164, in § 14, below; also Wally's Heirs v. Kennedy, 2 Yerger, 554.

liberty of contract, the right to labor, whether of a class or of all citizens, may not be taken away by any legislature; and for this reason the Colorado, Nebraska, Illinois, and Ohio cases were rightfully decided. The statutes above cited of other states should, however, be held valid, and it does not appear that they have yet been questioned in a court of last resort, as they do not forbid or penalize a contract for a longer day; indeed, they all, except the Nebraska statute, expressly recognize contracts for a longer day.

Pay for Overtime.—And it follows that pay for overtime may be demanded, unless the employee has expressly or impliedly contracted for a longer day; and this, in Maine, although the laborer has been paid, by the day, in full and given receipts. He will be deemed to have so contracted when he had actual knowledge that such longer time was required by the employer, either by actual notice or by the general usage of the trade. Thus it was held that a nightwatchman at car stables, or the engineer of a flouring mill could not recover extra pay for service for more than ten hours; 21 nor a photogra

20 Bachelder v. Bickford, 62 Me., 526. In Florida there is an express statute, that in the absence of a written contract for overtime the employee is entitled to extra pay: R. S., 2118.

21 Bartlett v. Street Ry. Co., 82 Mich., 658. Helphenstine v. Hartig, 5 Ind. App., 172.

22

pher's assistant paid by the week for "finishing photographs; nor a manager of gas-works paid by the week, though he worked sixteen hours a day, the nature of the business requiring it.

21

And in other states the statute has been construed still more strictly, and pay for overtime cannot be demanded unless contracted for, or clearly implied from the circumstances; that is, neither extra labor nor extra pay can be demanded without a special contract. The workman may stop work at the end of the legal day, but if he choose to go on he cannot, in the absence of agreement, charge for overtime. So, on the other hand, if he work by the day, but less in all on the average than the legal day, if each day's work was accepted as such, the employee may sue for the full per diem amount. 25

12. Public Labor Hours.-But many states have passed laws prescribing the hours of labor as to skilled or unskilled labor employed directly by the state, or any county, city, town, or municipal corporation, or even by private contractors upon public work, or for such municipal corporations. Such laws are generally consti

22 Schnurr v. Savigny, 85 Mich., 144.

23 Luske v. Hotchkiss, 37 Ct., 219.

21 McCarthy v. Mayor of N. Y., 96 N. Y., 1; Luske v. Hotchkiss, 37 Ct., 219; Ind. Stats., 1889, p. 143.

25 Brooks v. Cotton, 48 N. H., 50. .

1

tutional, as they merely prescribe the kind of contract the state, or its municipal corporations, shall make, and so the federal law was interpreted by the United States Supreme Court; but when they go further, and impose a penalty upon a private person, whether laborer or employer, or make it a misdemeanor or criminal offence for such employer to make contracts, voluntary on both sides, with his own workmen for a longer time, their constitutionality seems more open to doubt; it has been indignantly denied by the Supreme Court of California, and affirmed by that of New York3 and (of a federal law) in the federal courts.1

1U. S. v. Martin, 94 U. S., 400.

2 Kuback's Case, 85 Cal., 274. And this case was so decided in spite of the statute and constitutional provision making eight hours a legal day in all public work, and requiring city contracts to be so made. The law creating the misdemeanor for which Kuback was indicted was a city ordinance.

3 N. Y. Laws, 1891, 105, 504; People v. Warren, 28 N. Y. Sup., 303. The case is ill considered, however, and is in effect destroyed by the decision of the Court of Appeals upon a habeas corpus brought by Warren, that the statute was not penal, but directory merely; and "could not be the basis of a criminal indictment for misdemeanor," whereby defendant was released, and it became unnecessary to consider its constitutionality. People ex rel. Warren v. Beck, 144 N. Y.,

225.

The validity of the statute was not really passed upon, however, the court holding that the defendant did not come within its terms. U. S. v. Ollinger, 55 F. R., 959. And in