191 U. S. Argument for Plaintiff in Error. is private, not governmental. Lynn v. Turner, Cowp. 86; Henley v. Lyme Regis, 5 Ring. 91; Jones on Negligence of Mun. Corp. § 58; Livingston v. Thompson, 68 S. W. Rep. 477; O'Rouke v. City of Sioux Falls, 54 N. W. Rep. 1044. In Norwood v. Baker, 172 U. S. 169, it was held that special assessments cannot be levied in excess of special benefits. See Gilmore v. Hentig, 33 Kansas, 156; Mason v. Spencer, 35 Kansas, 512; Newman v. Emporia, 41 Kansas, 583; Atchison v. Price, 45 Kansas, 296. With respect to its private or proprietary rights and interests, a municipal corporation is entitled to the protection of the constitution, like other corporations. City of New Orleans v. New Orleans Water Works Co., 142 U. S. 79; State v. Denny (Indiana), 21 N. E. Rep. 252; Saving Fund Soc'y v. Philadelphia, 31 Pennsylvania, 183; 72 Am. Dec. 730; State v. Fox (Indiana), 63 N. E. Rep. 19; Board of Park Commissioners v. Detroit, 28 Michigan, 240; cited approvingly in Blades v. Board &c. (Michigan), 81 N. W. Rep. 271; Helena Consol. Water Co. v. Steele, 20 Montana, 1; 49 Pac. Rep. 382; People v. Chicago, 51 Illinois, 17; Dillon's Munc. Cor. 4th ed. 129; article on "The Right to Local Self-Government," 13 Harv. Law Rev. 441, and cases there cited; Stockwell v. Rutland, 53 At. 132; Peters v. Lindsborg, 40 Kansas, 654; La Clef v. Concordia, 41 Kansas, 323; Caldwell v. Prunelle, 57 Kansas, 511. The legal distinction between municipal corporations proper -cities-and quasi corporations has been often recognized and enforced in the State of Kansas. Beach v. Leahy, 11 Kansas, 23; Illinois T. & S. Bank v. Arkansas City, 22 C. C. A. 271; State v. Topeka Water Co., 61 Kansas, 547; State v. Hunter, 38 Kansas, 582. The question as to whether a city in contracting to pave a street is acting in its private capacity, as a representative of its citizens, is a question of general law not dependent upon any constitutional or statutory provision of the State of Kansas. The state court cites People v. Beck, 30 N. Y. Supp. 473, now overruled, and United States v. Martin, 94 U. S. 400. This Argument for Plaintiff in Error. 191 U. S. court is not bound by the decision of the state court, but will determine for itself the law of this case. Olcott v. Supervisors, 16 Wall. 678. The statute may be held void as to cities and their contractors only. It might be held constitutional as to the state and quasi public corporations such as counties, townships and school districts and unconstitutional as to cities. Emporia v. Norton, 13 Kansas, 570. The statute so far as it limits the hours of employment on public works has no relation to the public health, safety or morals and cannot be held valid as a police regulation. People v. Beck, 10 Misc. N. Y. 83; State v. Martindale, 47 Kansas, 147; Holden v. Hardy, 169 U. S. 366, related to a statute passed under constitutional provisions as to health of miners, and People v. Phyfe, 136 N. Y. 554; Commonwealth v. Hamilton Mfg. Co., 120 Massachusetts, 383; United States v. Martin, 94 U. S. 400, are not applicable. The plaintiff in error has not waived his right to question the constitutionality of the statute under consideration. He was advised by counsel and contracted under the belief that the statute under consideration was unconstitutional and void. The contract did not contain any stipulation with reference to the hours of labor or the compensation to be paid to laborers. Even if the contract had contained such provisions they would not prevent the plaintiff from attacking the constitutionality of the statute. Cleveland v. Clements Bros., 65 N. E. Rep. 885; People v. Coler, 166 N. Y. 1; Marshall v. Nashville, 71 S. W. Rep. 815; Sweet v. People, 65 N. E. Rep. 1094; People v. Featherstonhaugh, 64 N. E. Rep. 802. Even if the Legislature had the right to regulate the hours of labor of persons employed by a municipal corporation, nevertheless the statute in question is not justified, because it is as well, an encroachment upon the right of the individual employer and employé to contract as they shall see fit; and the fact that the Legislature has chosen for the execution of its unlawful purpose the medium of the state and municipal corporations cannot prevent this court from setting aside the 191 U. S. Argument for Defendant in Error. statute as an insidious attempt to encroach upon individual rights and liberties. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 126, and cases cited; Foster v. Scott, 136 N. Y. 577. Mr. C. C. Coleman, Attorney General of the State of Kansas, and Mr. N. H. Loomis, for defendant in error: For thirteen years this law has been one of the features of state legislation in Kansas. Every city, every county, every municipality, which has let a contract, and every contractor who has made a bid therefor, for public work in Kansas, for thirteen years, has done so with the full knowledge of the law. Every laboring man in the State for so long has known of the advantage to him of employment upon public enterprises carried on under the direct or indirect authority of the State. Whenever assailed the law has received the sanction of the highest courts of the State. In re Ashby, 60 Kansas, 160; In re Dalton, 61 Kansas, 255, 257; The State v. Atkin, 64 Kansas, 174. It is similar to the United States eight hour law upheld in United States v. Martin, 94 U. S. 400. Appellant's liberty has not been disturbed. The theory upon which the Supreme Court of Kansas in this and similar cases has proceeded is: First, that the opening, improvement and maintenance of public highways, the construction of court-houses, the requirements for street and road work, are public governmental functions, for which the State is primarily responsible, and the maintenance and performance of which the sovereign people have the right to require at the hands of the State. State v. Atkin, 64 Kansas, 176; People v. Flagg, 46 N. Y. 401. Second, that cities, counties, and other municipal organizations, in so far as their control of such enterprises is concerned, are but agencies of the State for carrying out these governmental functions. General Statutes, 1901, § 727, subd. 34; In re Dalton, 61 Kansas, 264, and cases cited; Williams v. Eggleston, 171 U. S. 310; Kelly v. Pittsburg, 104 U. S. 78; For syth v. Hammond, 166 U. S. 518; People v. Beck, 10 Misc. N. Y. 77. Third, that contractors with the State or city must make their estimates with reference to the state's regulations of wages and hours, and doing so are fully protected in their rights. There is no discrimination against appellant. Unless it appears from the law itself, or from the facts of the case at bar, that some discrimination is exercised or exerted against the plaintiff himself, he cannot be heard to say in opposition to the law that the rights of some other person or class of persons are infringed by it. He can only complain if his own rights are offended against. This principle is fundamental. State v. Smiley, 69 Pac. Rep. 199; City v. Railway Co., 59 Kansas, 427; Clark v. City, 176 U. S. 114; Supervisors v. Stanley, 105 U. S. 305; Railroad Co. v. Montgomery, 152 Indiana, 1; 74 Am. St. Rep. 302, 311. The paving of a street is a governmental power. Branson v. Philadelphia, 47 Pennsylvania, 329; State v. Commissioners, 28 Kansas, 431. There is no claim made that the statute is enacted peculiarly by virtue of the police power of the State. MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court. The case has been stated quite fully, in order that there may be no dispute as to what is involved and what not involved in its determination. No question arises here as to the power of a State, consistently with the Federal Constitution, to make it a criminal offense for an employer in purely private work in which the public has no concern, to permit or to require his employés to perform daily labor in excess of a prescribed number of hours. One phase of that general question was considered in Holden v. Hardy, 169 U. S. 366, in which it was held that the Constitution of the United States did not forbid a State from enacting a statute providing-as did the statute of Utah there involved —that in all underground mines or workings and in smelters and other institutions for the reduction or refining of ores or metals, the period of the employment of workmen should be eight hours per day, except in cases of emergency when life or property is in imminent danger. In respect of that statute, this court said: "The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employés, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the Federal Courts. While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases, generated by the processes of refining or smelting." As already stated, no such question is presented by the present record; for, the work to which the complaint refers is that performed on behalf of a municipal corporation, not private work for private parties. Whether a similar statute, applied to laborers or employés 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 Fourteenth 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 |