no

tion of the 14th Amendment to the Constitutional provision prohibiting the taking stitution of the United States, which pro- of property without due process of law. vides that "no state shall make or enforce These elementary propositions have been any law which shall abridge the privileges so often discussed that it is not necessary or immunities of citizens of the United to again enter into their discussion here. States; nor shall any state deprive any per- It is earnestly insisted by the appellant son of life, liberty, or property without due that this question has been decided by this process of law, nor deny to any person within court in the case of Seattle v. Smyth, 22 its jurisdiction the equal protection of the Wash. 327, 79 Am. St. Rep. 939, 60 Pac. laws;" of § 3, art. 1, of the Constitution 1120, and that, unless that case is directly of the state of Washington, which provides overruled, the judgment in this must be rethat "no person shall be deprived of life, versed. It is true that this court, in the liberty, or property without due process of case above mentioned, did hold that a city law; " of § 7, art. 1, of the state Constitu- ordinance which makes it unlawful for any tion, which provides that no person shall be contractor upon any of the public works of disturbed in his private affairs or his home a city to require or permit any day laborer invaded without authority of law; of § 12, or mechanic to work more than eight hours art. 1, which provides that no law shall be in any one calendar day is unconstitutional, passed granting to any citizen, class of on the ground that it interferes with the citizens, or corporation other than munici- right of persons to contract with reference pal, privileges or immunities which, upon to their services, where such services are the same terms, shall not equally belong to neither unlawful nor against public policy. all citizens or corporations; of §§ 5 and 9, This was a brief per curiam opinion. It art. 7, which provide respectively that “ was stated therein that we had not been tax shall be levied except in pursuance of cited to a single case wherein the constitulaw; and every law imposing a tax shall tionality of such ordinances had been susstate distinctly the object of the same to tained; and a recurrence to the briefs in which only it shall be applied; " and "the that case sustains this statement in the legislature may vest the corporate authori- opinion. In fact, the brief of appellant did ties of cities, towns, and villages with power not discuss this question at all: but it apto make local improvements by special pears that the court below sustained a deassessment, or by special taxation of prop- murrer to the complaint on the ground that erty benefited. For all corporate purposes, the ordinance was an enlargement upon the all municipal corporations may be vested powers granted by the city charter to reguwith authority to assess and collect taxes, late the hours of labor of persons laboring and such taxes shall be uniform in respect upon public contract work of the city; and to persons and property within the jurisdic- this was the only question that was discussed tion of the body levying the same; "of 87, in appellant's brief. The unconstitutionart. 8, which provides that "no county, ality of the ordinance was briefly mentioned city, town, or other municipal corporation, in respondent's brief, and some cases cited, shall hereafter give any money or property, notably the case of Re Morgan, 26 Colo. or loan its money or credit, to, or in aid of, 415, 47 L. R. A. 52, 77 Am. St. Rep. 269, any individual, association, company, or 58 Pac. 1071, upon which the court seems corporation, except for the necessary sup- to have based its decision. The Colorado port of the poor and infirm, or become case, however, has since been overruled in directly or indirectly the owner of any principle by this court in State v. Buchstock in, or bonds of any association, com- anan, 29 Wash. 603, 59 L. R. A. 342, 92 pany, or corporation; of § 4683, Bal- Am. St. Rep. 930, 70 Pac. 52. The Colorado linger's Anno. Codes & Statutes with refer- case is the radical type of cases holding ence to jurisdiction of justices of the peace such laws unconstitutional; and it held that in criminal prosecutions; and of chapter laws of this character, even where they 44, p. 51, of the Laws of 1903, with relation were made with reference to the health of to public work to be performed in working the workmen employed, were in conflict days of eight hours each. with the Constitution, and that, in the absence of a constitutional provision authorizing the legislature to single out workmen in underground mines and smelters, and restrict them as to the number of hours they shall work, such a law is unconstitutional as being class legislation; that it was not a valid exercise of police power to protect the public health, since the health of the miner alone, and not of the public at large, is its object. This case is in

The principal contention of the appellant is that the ordinance is in violation of the 14th Amendment of the Constitution of the United States, and of similar provisions of the state Constitution. It is earnestly contended, and such is undoubtedly the general statement of the law by the reported cases, that the right to contract labor is a valuable right, and that any law that takes that right away is obnoxious to the con

direct conflict with Holden v. Hardy, 169 | by the respondent that it would be unU. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. conscionable to allow the contractor, after 383, where the provision in the Utah statute providing that the period of employment of workmen in all underground mines or workings shall be eight hours per day, except in cases of emergency, etc., was sustained as not being inimical to the provisions of the 14th Amendment to the Constitution of the United States by abridging the privileges or immunities of its citizens, or depriving them of their property, or denying to them the equal protection of the laws. In the case at bar the ordinance which was violated was substantially identical with the act of the legislature, Laws 1899, chap. 101, p. 163, which provides:

"Sec. 1. Hereafter eight hours in any calendar day shall constitute a day's work on any work done for the state, or any county or municipality within the state, subject to the conditions hereinafter pro- | vided.

having entered into this contract and based his bid upon the provisions of the ordinance with reference to the number of hours that laborers under the contract should be allowed to work, to appropriate to himself the benefits accruing from a violation of his own contract; and there seems to be some justice in this criticism, although in an action of this character it may not be a pertinent argument. But, whatever may be said of the correctness of Seattle v. Smyth, 22 Wash. 327, 79 Am. St. Rep. 939, 60 Pac. 1120, at the time it was | rendered,—and it may be conceded, we think, that a majority of the tribunals before which this question has been brought have pronounced such laws unconstitutional,-yet the Supreme Court of the United States in the recent case of Atkin v. Kansas, 191 U. S. 207, 48 L. ed. 148, 24 Sup. Ct. Rep. 124, have passed with no uncertain sound upon the identical question which is presented in this case, and have held the law to be valid. An examination of the Kansas statute upon which the defendant Atkin was indicted shows it to be, in substance, the same as our statute Provided, that in cases of extraor- and the ordinance in question. The comdinary emergency such as danger to life plaint charged that Atkin contracted with or property, the hours for work may be the municipal corporation of Kansas City extended; but in such case the rate of to do labor on a certain boulevard, and, pay for time employed in excess of eight having hired one George Reese to shovel hours of each calendar day, shall be one and and remove dirt in execution of the work, one-half times the rate of pay allowed for did knowingly, wilfully, and unlawfully perthe same amount of time during eight mit and require him to labor ten hours hours' service. And, for this purpose, this upon said work, there being no extraordiact is made a part of all contracts, sub-nary emergency arising in time of war, nor contracts, or agreements for work done for any necessity for him to labor more than the state or any county or municipality eight hours for the protection of property within the state.

"Sec. 2. All work done by contract or subcontract on any building or improvements or works on roads, bridges, streets, alleys, or buildings for the state or any county or municipality within the state shall be done under the provisions of this act:

or of human life, the statute providing "Sec. 3. Any contractor, subcontractor, that employees should not work more than or agent of contractor or subcontractor, eight hours a day. And, as showing that foreman, or employer, who shall violate the there was no element of the health of the provisions of this act, shall be deemed citizens involved in this case, it was stipuguilty of misdemeanor, and, upon convic-lated that the labor performed by Reese tion, shall be fined in a sum not less than was healthful outdoor work, not dangerous, $25 nor more than $200, or with imprison-hazardous, or in any way injurious to life. ment in the county jail for a period of not less than ten days nor more than ninety days, or both such fine and imprisonment, at the discretion of the court."

In this case it is stipulated that the contract for the municipal work, under which it was charged that the petitioner had permitted one of his employees to work for more than eight hours in one calendar day, contained the following provision: "It is further agreed that the laws of the state fixing the hours constituting a day's work, approved March 18, 1899, and ordinance No. A1114, passed January 7, 1902, shall be a part of this contract." It is insisted

limb, or health, and could be performed for a period of ten hours during each working day of the week without injury from so doing; and that the labor he was employed to perform, and did perform, was in no respect or manner more dangerous to the health or hazardous to life or limb or to the general welfare of the said George Reese or other persons doing such work than the labor performed by persons doing the same kind of, or character of, work as the employees of contractors having contracts to do the same kind of work for private persons, firms, or corporations, or as the servants of private persons, firms, or corpora

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 pub-
lic highways for the convenience and com-
fort 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 di-
rectly or by one of its instrumentalities,
the work was of a public, not private,
character.
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 under-
taking work for it, or for one of its munic-
ipal 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.

tions. It was further stipulated that the work of shoveling and removing dirt for the construction of a pavement was in all respects the same whether the pavement be constructed for a city or other municipality, or for a private person, firm, or corporation. But the decision was based upon an entirely new theory of the law, namely, that it was a public work on which the contractor was engaged, and with reference to which he contracted; that the state, or the municipalities through delegated powers from the state, had a right to do their work in any manner in which they saw fit, and that they had the same right to compel those with whom they contracted to perform the public work in the same manner, and that there was no question of violation of private right involved. In the discussion of the case it is said: "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 statute of Kansas unreasonably interferes with the exercise of that right." And, after quoting the argument of counsel, the court says: These questions-indeed, the entire argument of defendant's counselseem 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 with drawn, at the will of the legislature; the authority of the legislature, when restricting or withdrawing such powers, being sub-claim urged by the laborer; but the earnest ject only to the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed. The improvement of the boulevard in question was a work of

66

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 everyone 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." It is a notable fact in this connection that the alleged constitutional right of the laborer to contract his labor at any price which seems to him desirable is not in this or any other reported case a

contention in his behalf is made by the contractors who are reaping the benefits of the violation of that contract in paying the laborer a less remuneration than he is entitled to under the statute. But, inas

much as this is a case which is susceptible of being appealed to the Supreme Court of the United States; and inasmuch as that tribunal has passed squarely upon the questions involved in this case in favor of sustaining the judgment herein,-this court feels it its duty to yield allegiance to the doctrine announced by the Supreme Court

of the United States.

which compensation must be made. under a constitutional provision requiring the making of compensation in case private property is damaged for public use.

(July 27, 1905.)

APPEAL by defendant from a judgment of the Superior Court for Spokane County in favor of plaintiffs in an action brought to recover damages for injury to There seems to us to be no virtue in any plaintiffs' property by the operation of deof the other contentions made by the appel-fendant's road. Reversed. • lant. The title to the act is sufficient; the ordinance was made under the authority of the law, and, not being obnoxious to any constitutional provision either of the United States or of the state, the judgment will be

sustained.

3.

Obstruction of a cross street used by a property owner in gaining access to his property, but which does not destroy such access, is not an injury for

NOTE. AS to right of abutting property owner to damages for smoke, noise, and smells caused by railroads or street railways, see

also, in this series, Wylie v. Elwood, 9 L.

R. A. 726: Sperb v. Metropolitan Elev. R. Co. 20 L. R. A. 752; Louisville R. Co. v. Foster,

50 L. R. A. 813, and Jenkins v. Pennsylvania

R. Co. 57 L. R. A. 309.

As to right to damages for noise, vibrations, and interference with light, by elevated railroad, see De Geofroy v. Merchants' Bridge

Terminal R. Co. 64 L. R. A. 959.

As to right to damages for noise, cinders, soot, and smoke from railway roundhouses, see Louisville & N. Terminal R. Co. v. Jacobs, 61 L. R. A. 188.

The facts are stated in the opinion. Messrs. M. J. Gordon and C. A. Murray, for appellant:

The term 'taking of property" applied only to an actual, physical appropriation of it, and did not include an interference with a right connected with it.

Brown v. Seattle, 5 Wash. 39, 18 L. R. A. 161, 31 Pac. 313, 32 Pac. 214.

The introduction of the words "or damaged" was not intended to do more than to make the public corporation liable in cases where an individual would have been liable at common law.

A private individual, acting without malice, can devote his property to any lawrul use, notwithstanding, by so doing, a depreciation in the value of his neighbor's property results therefrom.

Everyone holds title to his property upon the implied condition that his neighbor may devote his own property to any lawful use; and any injury which follows, unless it be of a physical nature, or arises from an interference with a right enjoyed in connection with property, falls within the principle expressed by the maxim, Damnum absque injuria.

State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385; Gilbert v. Greeley, 8. L. & P. R. Co. 13 Colo. 501, 22 Pac. 814; Brown v. San Francisco, 124 Cal. 274, 57 Pac. 83; Pennsylvania R. Co. v. Marchant, 119 Pa. 541, 4 Am. St. Rep. 659, 13 Atl. 693; Pennsylvania R. Co. v. Lippincott, 116 Pa. 472, 2 Am. St. Rep. 618. 9 Atl. 871; Aldrich v. Metropolitan West Side Elev. R. Co. 195 Ill. 456, 57 L. R. A. 237, 63 N. E. 156; Austin v. Augusta Terminal R. Co. 108 Ga. 671, 47 L. R. A. 755, 34 S. E. 852; Jordan v. Benwood, 42 W. Va. 312, 36 L. R. A. 519, 57 Am. St. Rep. 859, 26 S. E. 266; Van De Vere v. Kansas City, 107 Mo. 83, 28 Am. St. Rep. 396, 17 S. W. 695; Rude v. St. Louis, 93 Mo. 408, 6 S. W. 257.

Where there is no taking of, or encroachment on, one's property or property rights by the construction or operation of a railroad, any inconvenience caused by it, as from noise, smoke, cinders, etc., not due to improper construction or negligence in operating it, furnishes no ground for action.

Under the English statute, the damage ner, 45 Ohio St. 311, 13 N. E. 69; Louismust be to the land itself.

As enlarged by the incorporation in, or addition to, the state Constitutions of the words "or damaged," the right to compensation extends to and covers all actual damage to their property, and have materially age, loss, or injury to the property which is not common to the community in general. Omaha & N. P. R. Co. v. Janecek, 30