Ellis v. United States, 206 U.S. 246 (1907)

MR. JUSTICE MOODY, dissenting:

I am unable to agree with the opinion of the Court so far as it relates to the employment for more than eight hours a day of the men engaged in work on the dredges and scows. The cases are of such general importance that I am unwilling to allow the reasons for my disagreement to remain undisclosed.

The first question is whether the men named in the informations were employed by the defendants "upon any of the public works of the United States" within the meaning of those words as Congress used them. Let it be conceded, as I think it should be, that "any of the public works" is a narrower expression than "any public work" would be; that public works must "have some kind of permanent existence and structural unity, and be severally capable of being regarded as complete wholes," and still the works here in question fall within the description. The dredging of channels in our waterways is not mere digging. It has for its purpose the creation of something with as visible a form as a cellar to a house, a sunken road, a well, a tidal basin, or a sea level canal. Surely all these are "works," and, if constructed by the government, "public works." Artificial waterways may not be so easily read out of the statute by any definition, and I cannot resist the belief that the definition accepted in the opinion of the Court does not accomplish it.

Let us consider the history of one of these artificial approaches from the sea, such as the channel in Boston Harbor, and see whether, when it is completed, it ought not to be regarded as a complete whole, having a permanent existence and structural unity. When a work of this kind is proposed, the engineers of the Army, first obtaining the authority from Congress, survey the region, consider the commercial reasons which support the project, and make plans for it and estimates of its cost. Upon consideration of the engineers’ report, Congress, if it approves the project, makes an appropriation for its construction, designating it expressly as of the "public works" of the United States. For example, the appropriation for one of the works in question in these cases is in the following terms:

The following sums of money . . . are hereby appropriated . . . for the construction . . . of the public works hereinafter named; . . . for improving said harbor in accordance with the report report submitted in House Document, number one hundred and nineteen, Fifty-sixth Congress, Second Session, by providing channels thirty-five feet deep, . . . six hundred thousand dollars.

That is to say, at the very threshold of the inquiry, we find that the Congress which had forbidden a longer day’s work than eight hours upon "the public works of the United States" had, upon undertaking this very work, deliberately called it a "public work." The cogency of the argument arising from the use of the same words in the eight-hour law as in the appropriation law cannot be met by the suggestion that it is easy to read the words in the eight-hour law in a narrower sense than they were used in the appropriation law. The question here is not how the words may be interpreted, but how they ought to be interpreted. There is no necessity to explore the possibilities of escape from the intention which Congress has made sufficiently plain.

In the Digest of Appropriations, made and published under the direction of Congress, these constructions are constantly denominated as "works," and, of course, they are "public." After the channel is completed, it is buoyed and lighted by the government, and frequently defended by land fortifications constructed for that purpose. Sometimes breakwaters or jetties are constructed for the purpose of preserving it from impairment. The General Appropriation Act of September 19, 1890, 26 Stat. 426, contains some provisions of permanent law, which are material here. It begins by appropriating "for the construction, completion, repair, and preservation of the public works hereinafter named." Then follow many specific appropriations for the improvement of rivers and harbors. Section 3717 of the Revised Statutes was as follows:

Whenever the Secretary of War invites proposals for any works, or for any material or labor for any works, there shall be separate proposals and separate contracts for each work, and also for each class of material or labor for each work.

Section 2 of this act provided that that section of the Revised Statutes should not be construed to prohibit

the cumulation of two or more works of river and harbor improvement in the same proposal and contract where such works are situated in the same region and of the same kind or character.

Of course, the works here referred to are public works. Section 6 prohibits the deposit of material in harbors, navigable rivers or waters of the United States. Section 7, as amended by § 3 of the Act of July 13, 1892, 27 Stat. 88-110, makes it unlawful

to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, harbor of refuge, or enclosure within the limits of any breakwater or of the channel of any navigable water of the United States, unless approved and authorized by the Secretary of War.

The Act of March 3, 1899, 30 Stat. 1151, makes additional safeguard against the obstruction of navigable channels. Thus, Congress, which has created these artificial channels, keeps them under the constant repair, supervision, control, and protection of the government. When the work is done, the government, through the Navy Department and the Coast and Geodetic Survey, makes, publishes, and issues charts which show their length, depth, and width in the minutest detail, and the buoys and lights which enable the mariner to use them with safety. He, like Congress, enters upon the channels, regarding them as completed wholes, as having a permanent existence, and, if he strays beyond their limits, he will quickly discover that they have a tangible form and structural unity. Doubtless they are subject to alteration by the action of the elements, but so is a building; and, given the constant repair and care which all structures need in order to prevent their disintegration, they are as permanent as the Capitol building itself. Quotations from acts of Congress might be multiplied indefinitely showing that, with respect to channels, Congress had appropriated for them as "works," and for their repair and maintenance as "works;" but if the acts already referred to will not show that Congress regarded such waterways as public works, no number of others will do it. I suppose it would be conceded that breakwaters or jetties were public works. Is it to be supposed that Congress intended that men who work on them should work only eight hours a day, while those who work near by on the channel itself should be exempted from this restriction? I conclude, therefore, that the labor performed was upon "the public works of the United States."

The eight-hour day is prescribed by the statute only for laborers and mechanics. These words of description have never been supposed to include, and would not include, all those who do work of any kind. Although the extent of these words is somewhat vague, nevertheless they were used in a technical sense, to describe classes of employees. The second question is whether the men named in the information were laborers or mechanics.

Seamen, whether employed in the Navy or other marine service of the United States, or by contractors with the United States, are not laborers or mechanics. They, while laboring as seamen, could no more be brought within the limits of an eight-hour day than a physician, a lawyer, or a clergyman. They have always been regarded with special favor by all governments, and a series of laws specially applicable to them control and affect their conditions of labor. The men employed on the seagoing tug, from the master down, were seamen, and their work was the work of seamen, and the conviction with respect to them was, I agree, erroneous. Those who are employed upon the dredges and scows were not, in respect of the work they were actually doing, in any proper sense, seamen. The master and engineer of the dredge were not licensed, and the men employed upon it seemed not to have entered into any contract of shipment. They were employed usually from those who had served in the merchant marine. They had doubtless acquired the skill and aptitude which especially fitted them for work upon the dredges, which required some handling of lines and some other minor things in which sailors become expert. But, because a man has acquired in one occupation skill which fits him for another, it does not follow that, when he passes from one occupation to the other, the work which he does in the new employment entitles him rightfully to be called by the old name. The sailor who is appointed the keeper of a lighthouse may have received his appointment because he was once a sailor, but, nevertheless, when he enters into the new service, he is a lighthouse keeper, and not a sailor. The occupation of dredging is not the only one for which life on the sea educates a man. There is a constant demand, for instance, for those who have an honorable discharge from the Navy for employment in civil life. The qualities of obedience, of daring, of fidelity, of the capacity for quick adaptation of insufficient means to the end which may be desired -- all the result of training upon the sea -- are qualities which are needed in many stations of civil life; but, when men have reached those stations by reason of qualities developed in them while seamen, they are no longer sailors. The work of the dredge men and scow men may be described in a sentence. They were digging a channel and emptying the material excavated in the sea. All those who were engaged in the work may fairly be described as either laborers or mechanics. They had nothing whatever to do with navigation. Neither the dredges nor the scows had steering gear, sails, or other methods of self-propulsion. They were towed to the place where the work was to be done, and there left to do it.

It does not seem to be important that, for some purposes, the scows and dredges were vessels, or those employed upon them, for some purposes, are deemed seamen. The question here is what were the men when they were engaged in the work of excavation? Were the men at that time employed as seamen, doing the work of seamen, or as laborers and mechanics, doing the work of laborers and mechanics? I think they then were laborers or mechanics, and employed as such, and that their occupation is determined not by what they have done in the past, or by what their employers chose to call them, but by what they were doing when the government invoked the law for their benefit. If they were then doing the work of laborers and mechanics, whatever they may have done in the past, which constitutes a motive for their employment, or by whatever name they were employed, they were, or rather their labor was, within the restrictions as to hours prescribed by the law. Nor was their work in dredging incident to their employment on the dredges, but quite the reverse. They never would have been employed at all except for dredging. They never would have set foot on the dredge save to use it as a platform on which to do the work of laborers and mechanics. It should not be forgotten that the object of this statute, in which is embodied an expression of a great public policy, is to regulate labor of the kind named, and the men concerned are in or out of its prohibitions solely by reason of the kind of labor they perform. How can it be material here whether the dredge is or is not a vessel within the admiralty jurisdiction, or that, in the construction of two specifically named statutes, all those upon it are deemed to be seamen? There is no artificial statutory construction prescribed for this act, and what the men on it are is left, under this act, to be determined according to the truth and fact, and the test to be applied is the nature of the labor they actually perform. They were employed to do the work of laborers and mechanics; in the main, they actually did that work, and whatever they did which was of the nature of seamen’s work was a mere incident to the fact that they labored upon a floating platform instead of upon the dry land.

It is conceded in the opinion of the Court that the statute admits of an interpretation which brings these cases within it. May not more be said? Are not these cases fairly within the plain words of the act? If this be so, then the rule of strict interpretation, applicable to penal laws, a rule which has lost all of its ancient rigor, if indeed it is now more than a lifeless form (United States v. Lacher, 134 U.S. 624, 628), cannot be used to take them out. When the intention of the legislature is reasonably clear, the courts have no duty except to carry it out. The rule for the construction of penal statutes is satisfied if the words are not enlarged beyond their natural meaning, and it does not require that they shall be restricted to less than that.

The impossibility or difficulty of applying this law to the operations of dredging, which, upon the evidence, I think, amounts to no more than that it would result in an inconvenience, which the defendants may readily avoid by refusing to contract with the government, is a consideration fit to be addressed to Congress, rather than to this Court.

I am authorized to say that MR. JUSTICE HARLAN and MR. JUSTICE DAY concur in this dissent.