In the original opinion we gave the substance of the eight-hour labor law passed by the Thirty-third Legislature, page 127, but in order to further discuss appellants' contentions in their motion for rehearing we will restate some of them.
The first section of the law clearly prescribes that eight hours shall constitute a day's work for all laborers, when employed by or on behalf of the State or county in the construction of any bridge, or other public improvement. The object and purpose of the law is stated in section 5, quoted in the original opinion, but succinctly restated is, "the fact that many laborers are required to labor for an excessive number of hours in one day without intermission, to the material injury of their constitutions and health," thus making the health and constitutions of laborers — citizens of the State — above and superior to the dollars which their employers might make out of them and their labor by requiring or permitting them to work, or they voluntarily working "an excessive number of hours in one day without intermission" — a most salutary and humane law. Then, in order that no contractor, for constructing such public improvements, could be taken unawares, the first part of section 2 requires that all contracts in future by or on behalf of the State or county for constructing any of said public improvements, "shall be deemed and considered as made upon the basis of eight hours constituting a day's work." Then section 2 continues: "It shall be unlawful for any corporation, person or association of persons having a contract with the State, or any political subdivision thereof, to require or permit any such laborers to work more than eight house per calendar day in doing such work, except in case of emergency." The excepted emergencies are quoted in the original opinion. Section 3 prescribes the offense. So far as this case is concerned, it is: *Page 291 "Any person, . . . or any agent or employe of any person, . . . or association of persons, . . . who shall fail or refuse to comply with the provisions of this Act, or who shall violate any of the provisions of this Act, shall, on conviction thereof" be punished as prescribed in the latter part of this section.
We know of no constitutional provision of our own Constitution, or of the Constitution of the United States, nor of any decision in our State, or by the United States Supreme Court, which directly or indirectly inhibits the Legislature from passing a law, under its unquestioned police power, to protect the lives, and constitution and health of its citizens. In fact, it would be the imperative duty of the Legislature, if the necessity arose, to enact such legislation. This eight-hour law, as it shows on its face, was enacted for such purposes and under such necessity, as to show it is in no way void or unconstitutional, even if it incidentally curtails or abridges the right, under the circumstances as enacted, of an employer and employe ordinarily privately and personally contracting in the particulars prohibited. Their private and personal right, if so, must yield to the necessary and imperative public good.
Neither is the Act void for uncertainty or indefiniteness because of the generalities of the emergencies, which authorize laborers to work more than eight hours. Such exceptions and emergencies must necessarily be stated in general terms. It would be interminable and unreasonable if the Legislature had to incorporate specifically each and every such emergency, in order to enact a valid law. And, if such was the case, an ingenious accused might, when prosecuted, or his attorney, think of some other emergency not thought of and included by the Legislature, and thereby render void the Act. While these exact exceptions or emergencies may not have been passed on by this and other courts, yet, similar general ones in other statutes have been, and the courts have uniformly sustained the validity of such Acts against just such contentions as appellants make herein.
We will cite some of them. Our Penal Code, under articles 46-47, in prescribing that a person is guilty of no offense when laboring under a mistake of fact, prescribes: "And it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense." In Watson v. State, 13 Texas Crim. App., 81, this court, as to the words of said article quoted, among other things, said:
"We think the learned judge should have given in charge to the jury, substantially, the above articles, leaving the jury to determine from the evidence in the case whether or not, under all the facts and circumstances of that particular case, the mistake of the defendant, if he was mistaken, arose from a want of proper care on his part. The question as to proper care, we think, depends upon the facts in each particular case. No general rule can be prescribed in relation to it. What would be proper care in one case might be gross negligence in another. What *Page 292 would be proper care when considered with reference to one individual might not be when applied to another."
To the same effect is the decision in Hailes v. State, 15 Texas Crim. App., 93.
Again, our statute (P.C., arts. 1114 and 1117) in defining negligent homicide, says that, if any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty, etc. And says, the degree of care and caution is such as a man of ordinary prudence would use under like circumstances. In Morris v. State, 35 Tex.Crim. Rep., complaint was made that the trial judge failed to tell the jury what was and what was not negligence. As to this the court said: "There was no error on the part of the court in failing to further define `negligence' than as given in the main charge. The charge of the court is in the following language: `The degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under like circumstances.' This was in accordance with the language of the statute on the subject, and is in consonance with the ordinary definition of negligence." See also Baskins v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 727, where we discussed and gave further illustrations that are applicable herein.
The United States Congress, by the Act of March 4, 1907, c. 2939, sec. 2 (34 Stat., 1416; U.S. Comp. St., 1913, sec. 8678) enacted: "Telegraph operators, train dispatchers, etc., are not permitted to serve more than nine hours in the twenty-four-hour period in offices operated continuously night and day, or thirteen hours in offices operated only during daytime, except incase of emergency, when the employes named may be permitted to be and remain on duty for four additional hours, etc." In the case of B. O. Ry. Co. v. I.C.C., 221 U.S. 612 (31 Sup. Ct., 621, 55 L.Ed., 878) the above words contained in the statute, "except in case of emergency," were vigorously assailed as so uncertain as to render the statute void. The Supreme Court held that such words did not render the statute void, saying that the argument claiming that these words rendered the law invalid "denies to the Legislature the power to use a generic description, and, if pressed to its logical conclusion, would practically nullify the legislative authority by making it essential that legislation should define without the use of generic terms all the specific instances to be brought within it. In a legal sense, there is no uncertainty. Congress by an appropriate description of an exceptional class has established a standard with respect to which cases that arise must be adjudged."
See also State v. I. G.N. Ry. Co., 179 S.W. Rep., 867, where our Supreme Court discusses fully this question and cites the decisions of this State and of the United States Supreme Court, wherein such general exceptions or emergencies, as in this case, were uniformly sustained as against such complaints as appellants make in this case. We think it clear that the exceptions or emergencies stated in the Act in no way render the law invalid or void. *Page 293
We also think it clear that the complaint and information in this case properly charge an offense under said Act, and that appellants' contention that the pleading is insufficient because it does not charge that the appellants were doing the work themselves on behalf of the county, nor the work they were doing, was not done by them directly by or on behalf of Bexar County is untenable. The complaint and information plainly allege, among other things, that the Alamo Construction Company, a co-partnership and association of persons composed of C.G. Shelly and G.H. Bradford (who is one of the appellants) and divers other unknown persons, had employment and a contract with Bexar County to construct for said county a certain bridge therein, describing its location, requiring the services of laborers, etc., and that G.H. Bradford and C. O'Neil (appellants) were the agents and employes of said construction company, and that they did then and there unlawfully require and permit certain persons, naming them, to work more than eight hours per calendar day in constructing said bridge, then alleges such work was not done under any of the emergencies or exceptions named in the Act. It is thus seen that Mr. Bradford was one of the contractors himself, but that in requiring and permitting the laborers to work more than eight hours per day, he and the other appellant, O'Neil, were acting as the agents and employes of all the other contractors under the name of said construction company. The law was so framed as to embrace not only the contractor himself who directly contracts with the county, but also, "any person" and the "agent or employe of any person, who shall fail or refuse to comply with the provisions of this Act" — not only so, but any person, agent or employe of any person, "who shall violate any of the provisions of this Act," shall, on conviction, etc., be punished. The law, no doubt, purposely embraced not only the contractor himself but also any person or the agent or employe of any person, who had a contract with the county to do such work, from requiring or permitting laborers to work more than eight hours so as to prevent any evasion of the clear intent of the law. If it had not done so, all any contractor would have to do to evade the law and the intent thereof, would be to get a contract from the county, then employ an agent or give some employe authority, who would require or permit the laborer to work longer than eight hours, and that, too, notwithstanding he had made his contract upon the basis of eight hours for a day's labor under section 2 of the Act. The information is valid and charges an offense under the law.
The motion for rehearing is overruled.
Overruled. *Page 294