a discrimination between different classes of citizens, and lays down a rule which restricts competition and increases the cost of work, Under our constitution and laws, any man has a right to employ a workman to perform labor for him, whether such workman belongs to a labor union or not; and any workman has a right to contract for the performance of labor, irrespective of the question whether he belongs to a labor union or not. Such ordinances and contracts as the ordinance of October 17, 1898, have been recently held to be unconstitu tional and void, in the cases of Adams . Brenan, 177 Ill., 194, 52 N. E., 314, and Holden v. City of Alton, 179 Ill., 318, 53 N. E., 556. These cases are conclusive as to the invalidity of this ordinance.

It is contended by counsel for appellant in his argument that a provision in the specifications attached to the contract made between the contractor and the city of Chicago for the doing of the work upon the improvement in question is illegal, as limiting the number of hours in each working day. The provision thus referred to is as follows: "In the prosecution of the work under these specifications, eight hours shall constitute a day's labor; and any contractor or contractors who shall compel or allow laborers or employees to work more than eight hours in one day shall be liable to have this contract forfeited, as provided by section 1687 of the Revised Code of the City of Chicago: Provided, however, that in case of emergency the contractor or contractors may, by and with the written consent of the board of local improvements, allow laborers and employees to work extra time."

That part of this clause in the specifications which makes the contractor liable for a forfeiture of his contrect if he allows laborers or employees to work more than eight hours in one day is unquestionably void and unconstitutional. It infringes upon the freedom of contract, to which every citizen is entitled under the law. It is true that a legislative act which prescribes the length of time amounting to a day's work, when no special agreement upon the subject is made between the parties, is a valid act. But any statute providing that the employer and laborer may not agree with each other as to what time shall constitute a day's work is an invalid act.

CONSTITUTIONALITY OF STATUTE-MECHANICS LIEN LAW-Barrett et ur. v. Millikan, Supreme Court of Indiana, 60 Northeastern Reporter, page 310.-This action was brought by one Millikan against Charles E. Barrett and wife to enforce a lien for materials furnished for and used in the repair of a dwelling house erected on a lot owned by Barrett in the city of Indianapolis, Ind. In the superior court of Marion County, Ind., a judgment in favor of Millikan was rendered, and Barrett appealed to the supreme court of the State, calling in question the constitutionality of the act generally known as the "Mechanics' Lien Law." [Burns's Revised Statutes, 1894, $$ 7255-7259.] The supreme court rendered its decision April 23, 1901, sustaining the judgment of the superior court and declaring the act in question to be a constitutional and valid law.

The following is a quotation from the opinion of the supreme court, which was delivered by Chief Justice Dowling:

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The six objections [made by the appellant, Barrett, to the validity of the Mechanics' Lien Law"] may fairly be reduced to three, viz: (1) The act authorizes the appropriation of the property of the landowner without due process of law; (2) it impairs the obligation of contracts; (3) it grants to one class of citizens privileges not granted upon the same terms to others.

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The judgment in Jones . Hotel Co. (C. C. S. D., Ohio), 79 Fed., 477, referred to in appellant's brief, was overruled by the circuit court of appeals (86 Fed., 370, 30 C. C. A., 108), Lurton and Taft, circuit judges, and Clark, district judge, sitting. The opinion of the court was delivered by Judge Lurton, who fully reviewed the Ohio statutes on the subject of mechanics' liens, and said: "The validity of such statutes, however, need not be rested upon mere authority. They find sanction in the dictates of natural justice, and most often administer an equity which has recognition under every system of law. That principle is that everyone who by his labor or materials has contributed to the preservation or enhancement of the property of another thereby acquires a right to compensation. The legal effect of the contract is to give a lien to all who at the instance. of his contractor shall be employed to furnish labor or materials for the work which he has let out. So far as such a statute is limited to future contracts, it can not be said to impair the obligations of a contract. If the law be subject to no other objections, it impairs no contract, for all thereafter made are entered into upon the basis of the law. * Neither can the owner be said to be thereby deprived of property without due process of law. He has voluntarily made a contract, with the law before him. He has thereby subjected his property to liability for certain debts of the contractor. His own voluntary consent is an element in the transaction. He knows what the law is, and makes a contract under the law. It is idle to say that under such circumstances he is deprived of his property without due process of law."

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The question of the constitutionality of this act was thoroughly examined and emphatically decided by this court in Smith . Newbaur, 144 Ind., 95; 42 N. E., 40, 1094; 33 L. R. A., 685. It was held in that case that the act was not objectionable on the ground that under it the owner might be deprived of his property without due process of law; that the owner contracts in contemplation of the statute, and that the statute does not restrict the ability of the owner to contract. These views we think are sound, and upon similiar grounds statutes of the same kind have been sustained in most of the States of the Union.

The last objection to the statute taken by the appellants-that the act favors a particular class of citizens to the exclusion of other citizens--is not sustained either by reason or authority. The classification is just, natural, and reasonable. It is open to all, and it applies equally to all the citizens of the State who bring themselves within the remedial scope of this act.

CONSTITUTIONALITY OF STATUTE-PRIORITY OF CLAIMS FOR WAGES OVER CLAIMS UNDER CHATTEL MORTGAGES-Small v. Hammes et al., Supreme Court of Indiana, 60 Northeastern Reporter, page 342.—This was an action brought to recover for wages due and unpaid in a case where the property in question had been taken possession of by the holders of mortgages upon the same and the main question in issue was whether the claims for wages should, under the law, be paid before the sums due under the mortgages could be paid and satisfied. In the circuit court of Huntington County, Ind., a judgment was rendered in favor of the plaintiffs, the claimants for wages, and the defendants appealed the case to the supreme court of the State, which rendered its decision May 8, 1901, and affirmed the judgment of the lower court.

The pertinent facts in the case and the reasons for the decision are stated in the opinion of the supreme court, delivered by Chief Justice Dowling, and in the course of the same the following appears:

The right of the appellees [the wage claimant to proceed against the property described in the complaint, it is claimed, is derived from the provisions of the act of March 17, 1885 (Acts 1885, p. 95; Burns' Rev. St., 1894, § 7051), the substance of which, so far as it is applicable to this case, may be thus stated: Hereafter, when the business of any person shall be suspended by the action of creditors, then the debts owing to employees for labor, to an amount not exceeding $50 each, for work performed within six months next preceding the seizure of the property of such person, shall be treated as preferred debts, and such employees shall be preferred creditors, and shall be first paid in full.

The appellant contends that the act can not be so construed as to give the appellees an equity superior to the lien of the two chattel mortgages under which he claims title, and that, if the act is susceptible of such a construction, it is unconstitutional, because it impairs the obligation of contracts, and devests vested rights.

The meaning of the statute is unmistakable. Its evident intention is to provide for the payment to the extent of $50 of the claims of wageearners out of the proceeds of the sale of the property of the employer, whose business has been suspended by the action of creditors, before the payment of any other claims, costs excepted, whether secured by lien or otherwise. Such statutes are said to be founded upon the broadest equity, and for the protection of a peculiarly helpless and meritorious class of creditors, whose claims are usually small, and who are suddenly compelled to shift for themselves by the failure of their employer. If the statute does not, in terms, create a specific_lien upon the property of the employer, it accomplishes the same result by securing to the employee priority of payment over all other claimants out of the proceeds of the property of the employer. The effect of the statute, as we construe it, is to give the appellees the right of priority of payment over appellant, and to make the claim of the employees superior to the rights of the appellant under the mortgages. This being the necessary legal effect of the statute, is the act thereby rendered unconstitutional?

It can not be said to impair the obligations of contracts, because it open to only on contracts entered into after its enactment. (Jones e.

Hotel Co., 86 Fed., 370, 30 C. C. A., 108.) Nor is it invalid on the ground that it devests vested rights. The legislature has the power to regulate and control the priority of all statutory liens which may be created after the declaration of the legislative will, and every contract is presumed to be entered into with reference to existing laws. The lien of a chattel mortgage, where the property remains in the possession and use of the mortgagor or his assigns, is quite as much a creature of the statute as the preference or priority of payment secured to the laborer or employee by the act under consideration.

EMPLOYERS' LIABILITY-CONSTRUCTION OF STATUTE-GUARDING of MACHINERY-Powalske v. Cream City Brick Co., Supreme Court of Wisconsin, 86 Northwestern Reporter, page 153.—Action was brought by Benedick Powalske against the above-named company to recover damages for personal injuries incurred while in its employ. The evidence showed that his employment did not bring him within the reach of danger from an unguarded shaft, which was about 18 inches from his place of work; that a movement directly toward the shaft was guarded against by a large pile of stones; that the only way to reach the shaft was by stepping out of his path and up on the pile of stones, which was not required in his work; that he was engaged in winding a ceil of rope around his wrist, and caught the rope near its loose end preparatory to putting it on a shelf; that the loose end was caught by the wind and carried up against the shaft, where it caught and was wound up so rapidly that he could not disengage his arm therefrom, but was drawn to the shaft and revolved around the same and severely injured. He alleged negligence on the part of his employer in not guarding the shaft, which he claimed was made obligatory upon the employer by the provisions of section 1636j of the Revised Statutes of Wisconsin. A judgment for the defendant employer was rendered in the superior court of Milwaukee County, Wis., and the plaintiff appealed to the supreme court of the State, which rendered its decision May 21, 1901, and affirmed the decision of the lower court, holding that the section of the Revised Statutes above referred to only required the guarding of such shafting as was dangerous in its unguarded condition; that such condition is not determined by the fact alone that an employee was injured thereby, and that the employer is not required by said law to guard shafting which was so located that an employee must go out of his ordinary course, or the course which he might be reasonably expected to take in order to reach it.

The opinion of the supreme court was delivered by Judge Marshall, who, in the course of the same, used the following language:

Section 1636j, Revised Statutes, provides that "The owner or manager of every place where persons are employed to perform labor shall securely guard or fence all so located as to be dangerous to employees in the discharge of 1

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shafting

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which is

duty." Now, if it would not be reasonable to say, on the facts of this case, that the shafting in question was so located that respondent, in the exercise of that care for the safety of its employees which is contemplated by the statute, ought to have apprehended that it might probably cause a personal injury to some one of them, appellant's ease failed at the very outset. The statute does not require every shaft in a factory to be guarded or fenced, but only such as are so located as to be dangerous to employees in the discharge of their duties. It does not hold the owner of a factory, where machinery of the kind it mentions is used, bound to anticipate every possible danger to his employees that may in any event exist therefrom by reason of its being unguarded. The statute must have a reasonable, sensible construction.

It plainly contemplates that persons required to comply with its provisions shall exercise ordinary judgment in determining whether machinery should be guarded, and that, in such exercise, they shall bring to bear upon the subject ordinary prudence and intelligence under the circumstances of each particular case.

So, whether the shaft in question was dangerous in its unguarded condition, within the meaning of the statute, is not to be determined or necessarily influenced by the mere fact that appellant was injured thereby. If it had been located several feet above appellant's head as he was about his work, it would still have been possible for him to have been injured by it in many ways that might be imagined.

The question is, Would a person of ordinary intelligence and prudence, circumstanced as defendant's officers or those having charge of its business were, have apprehended that the unguarded shaft might probably cause a personal injury to some employee while in the discharge of his duties? If not, then the failure to guard it was not a breach of duty to appellant; and if the circumstances of the case upon which the conclusion must turn were, upon the evidence, so clearly in favor of respondent as not to reasonably admit of a finding to the contrary, manifestly it was free from the charge of actionable negligence upon which appellant contends the case should have been submitted to the jury, and the nonsuit was properly granted.

SEAMEN-SUITS FOR WAGES JURISDICTION OF STATE COURTSCalvin v. Huntley and Treu v. Same, Supreme Judicial Court of Massachusetts, 59 Northeastern Reporter, page 435.-Actions were brought by two seamen, Calvin and Treu, against one Huntley. From judgments dismissing said actions, rendered in the superior court of Bristol County, Mass., the plaintiffs appealed the cases to the supreme judicial court of the State, which rendered its decision February 27, 1901, and reversed the judgments of the lower court. The opinion of the appellate court, delivered by Judge Hammond, shows the facts in the case and contains the following language:

In each of these actions the plaintiff, a seaman, seeks to recover against the master of the vessel the wages earned by him up to the time of his discharge, and in addition thereto a sum equal in amount to one month's wages, as provided in Rev. St. U. S., sec. 4527. The cases are before us on appeals from a judgment of the superior court dismissing them for want of jurisdiction.