ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.
MR. JUSTICE McKENNA delivered the opinion of the court.
Defendant in error was indicted for violation of the act
of Congress of August 1, 1892, c. 352, 27 Stat. 340, which restricts the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government or by any contractor or subcontractor, upon any of the public works of the United States, to eight hours in any one calendar day, and makes it unlawful for any officer of the Government or any such contractor to require or permit any such laborer to work a longer time "except in cases of extraordinary emergency."
The indictment set out in proper form that defendant in error had violated the law by permitting and requiring his employes engaged in building a public levee on the Mississippi River, which was part of the public works of the United States, to work more than eight hours "on the 17th day of August, 1908, at a time and under circumstances when there was no extraordinary emergency, for the reason that at that season of the year, to-wit, during the months of August, September, October, and November and December, the waters of the Mississippi River annually fall below the level of the surrounding land and are retained within the banks of said river without the necessity of any artificial levees, as was true on August 17, 1908." It is further charged that the levees were being constructed in the usual and ordinary course of levee building done annually for the increase in size and strength of such levees, in preparation for the high waters that come down the river, the levees being of standard size and sufficient to resist usual high water, but not unusual high waters, that occasionally, although not every year, come down the river, it being the policy, rule and custom of the Government to increase the standard of levees by destroying inferior levees and replacing them with stronger and higher ones year by year until the levees shall all be brought to a standard able to withstand any unusual floods. And it is further charged that the particular
work which the defendant in error was constructing was nothing unusual or out of the ordinary, but was being done in pursuance of the policy indicated and at the usual time, so as to allow the levee time to settle and pack and become ready and able to serve the purposes for which it was constructed; that is, to withstand and retain the high waters of the Mississippi river before their usual annual rise, and the time of construction being the usual and customary time to so complete and perfect the levee, before the annual rise of the waters, as would exist in the construction of any levee on the river "any year and at any place and by any contractor, all of whom know, as did the said Garbish, that the waters of the Mississippi river annually fall and are retained within the natural banks thereof during the period or season aforesaid, and begin to rise above the natural banks thereof, and therefore to need artificial levees to retain them, in the month of January each year."
Defendant demurred to the indictment, on the ground that it did not set forth any offense against the laws of the United States or any violation of the laws of the United States. The demurrer was sustained.
In passing upon the demurrer the court said that the defendant rested his case upon the proposition "that the building of levees on the Mississippi River, in the Eastern District of Louisiana, at all times presents an extraordinary emergency," and hence that the work on the river is exempt from the operation of the law. The court took judicial notice of the fact asserted and sustained the conclusion from it. The court said that certain facts were within the common knowledge of the people of the district, which, taken in connection with the specific allegations of the indictment, overcame the mere conclusion of the pleader that no extraordinary emergency existed, and instanced the following: The work on the levees was absolutely necessary for the preservation of property
and the cultivation of the land; therefore it has always been usual for levee work to proceed with the utmost dispatch, and the labor of the day has never been restricted to eight hours. It is necessary, the court said, that the levees be built in as short a time as possible, that they may settle and that the grass may ...