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 \rgurierit . • . in Support of his 
 
 By
 
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 A_ R G XJ M E :^ T 
 
 OF 
 
 JOHN LUTTRELL MURPHY 
 
 BEFORE THE 
 
 )N 
 
 j^EW jDlTY j>^ALL J::oMMISSIO] 
 
 Delivered on the 5th and 6th of September, 1880, 
 
 IN SUPPOET OF HIS RESOLUTION FOP. 
 
 ON THE NEW CITY HALL, 
 
 SAN FRANCISCO. 
 
 SAN FEANCISCO : 
 
 Law Printinc; and Publishing Company, rwNiEK.s, 
 
 538 Sacramento Street.
 
 * ,f • ■" '
 
 HJD 
 133 h ? 
 
 ARGUMENT 
 
 OF 
 
 JOHN LUTTRELL MURPHY 
 
 Before the Xew City Hall Commission, 
 
 Delivered on the 5th and 6th of September, 1880, iu sujDport of 
 his Resolution for 
 
 DA.Y L^BOR 
 
 On the New City Hall, San Francisco. 
 
 To the Honorable Board of New City Hall Commissionei^s for 
 the City and County of San Francisco: 
 
 Gentlemen : In behalf of the resolution introduced by me 
 in your honorable body on the day of August, 1880, pro- 
 
 viding for letting the ordinary mechanical and other work 
 upon the New City Hall out to the people at large, by the day, 
 instead of letting it out to a few of the people only, in bulk, 
 1 have to say : 
 
 The proposition is not intended to work any very great or 
 radical change in the general plan or manner of building the 
 New City Hall, but only in a conservative spirit to enlarge 
 and improve one branch of that service, which has from the 
 start been, to a more or less extent, recognized and followed 
 by those in charge of the work. 
 
 The proposition is not to do away with the contract sys- 
 tem entirely — nor in fact at all — but only to change the mode 
 of contracting in one of its features only — that in relation to 
 Icdwr — and only as to a certain kind of labor at that. 
 
 The great bulk and b}^ far the heaviest portion of the busi- 
 ness of constructing the Ncav City Hall is left undisturbed, 
 to be carried on as heretofore iinder the old system, such as 
 the enormous and complicated iron work, mill loork, foundry 
 
 297075
 
 work, machinery work, and such other ivm'h as requires tlie 
 employment of machinery, and the furmshinr/ of the vast 
 sup2)lies of materials of all kinds used in its construction. 
 
 The proposition contemplates the contracting directly with 
 the mechanics and laborers themselves, who perform the 
 w^ork, instead of indirectlij, and in a round about way through 
 the medium of middle men, called contractors, who stand he- 
 tiueen the employer and the employed — between the authorities 
 who have to have the work done and those who have to do 
 it — midway of those who are under the necessity of hiiying, 
 and those who are under the necessity of selling — a class of 
 men who make it a business of taking advantage of the 
 necessities of both buyer and seller. 
 
 The proposition only goes to the extent of purchasing such 
 mechanical and other labor as can be done by hand, straight 
 from the producers of that labor themselves, and not from 
 those who are not only non-producers of labor themselves, 
 but simply specidate and trade upon the labor produced by 
 others. 
 
 The proposition means to divide and distribute i\\e profits 
 of labor equitably among those who actually earn those 
 profits by that labor, and not merely between those who 
 make a business in the first place of selling labor short to those 
 who are forced to buy, and then turning around and buying 
 in the profits of that labor long from those who are compelled 
 to sell. 
 
 The proposition is, as far as practicable, to save labor from 
 the dangers and conseqences of jobbery and gambling, and to 
 lift it above the petty schemes and wily machinations of 
 those whose only interest in the labor of the country is hoio 
 to subjugate it and turn it to their own selfish ends, and who 
 make a pastime of weaving nets and setting traps for the pur- 
 pose of ensnaring it and enslaving it. 
 
 The proposition is, as far as possible, to emancipcde labor 
 from the slavery of monopoly, and lift it out of a state of sub- 
 jection and dependence to which it has been reduced by cor- 
 porate greed and selfish ambition, and restore it to a position 
 of freedom, and breathe into it a neiv life of self-reliance and 
 independence. 
 
 The proposition goes to giving to labor its oivn reward; 
 to letting it share in its own profits; to guarantee it living re- 
 turns; to make it self-sustaining; and above all to secure to it 
 the elements of prosperity and contentment. 
 
 And the real question under the old system — which has so 
 long obtained in public as well as private enterj)rises, be- 
 cause it has been studiously and ingeniously forced upon the
 
 people, and unthinkingly and unwittingly acquiesced in by 
 them — has, in my opinion, not been so much a question of 
 ''How to do it,'' as of ''Hoiu not to do it." 
 
 It is often and truly said, "where there is a will there is a 
 way," and I believe, without intention to reflect upon any 
 one, if there had been more of a disposition on the part of 
 ^those heretofore in authority to find out "Hoiv to do it," 
 'rather than "Hotv not to do it," the wmj would have been 
 made reasonably plain and open to them, and their course 
 would without doubt have been fully appreciated by the pub- 
 lic and sustained by those in power. 
 
 Now let us not beg the question at the very start, and be- 
 fore we have heard the other side. Let us not give it up, be- 
 fore we have at least investigated both sides. Let us' not 
 turn a deaf ear to it, before we have earnestly and impar- 
 tially endeavored to ascertain whether it is correct or not. 
 Let us rather meet it like men, seeking to do right. Let us 
 look into it for ourselves, and not trust entirely to others, 
 whose selfish motives may lead them to conclusions against 
 honest conviction. 
 
 We are to interpret the law as ive find it for ourselves, and 
 to be governed by that interpretation, until a higher power 
 is constitutionally called upon to enterpret it for ns. We can- 
 not show that responsibility, for we are neither bound nor 
 shielded by the interpretation of our predecessors even, nor by 
 their practice thereunder. 
 
 _ In pursuing this investigation, the first obstacle we run across 
 IS that put forth by those whose purposes are best subserved 
 by holding a contrary view in favor of the old system under 
 ^ection 14, of the " New City Hall " Act, so called, approved 
 March 20, 1876, which provides, that " ivhere ivork is to be 
 done upon said building, or materials to be f'9trnished, it shall 
 be the duty of the Board of Commissioners to advertise 
 ■f ^_ * * for sealed proposals for doing said work or fur- 
 nishing said material," etc. 
 
 Now, this language, in my opinion, is directory to, and not 
 mandatory upon this Commission; and I am satisfied that a 
 careful examination into the whole scop)e and tenov of the 
 Act, with a due respect for and consideration of cdl its sep- 
 arate jMvts, and an intention to construe all of its distinct 
 portions with reference to each other, so as to give, as far as 
 possible, inU force and effect to the whole, will lead to and 
 warrant this construction. 
 
 In fact, I believe it will be found that no other construc- 
 tion IS consistent, or Mall stand the test. 
 
 Then if directory merely, it may be followed strictly or
 
 6 
 
 not, as the Commissioners may, in tlie exercise of their dis- 
 cretion, determine is wisest and best for the interests of the 
 city and people. If it may be deviated from, and not fol- 
 lowed sirkiJij in any one particular, it may in more. 
 
 If cuuj work whatever can be done upon the New City 
 Hall outside of the old system, more can be done in like 
 manner. If one man can be employed by the day, more can 
 be likewise employed. • 
 
 But, as I have said before, it is not the intendment of the 
 resolution to take the ivhole matter of work and supplies out 
 of the old system. It is only intended to change the mode of 
 doing a certain portion of the ivork ; and as there are no re- 
 strictions upon or discrimination in the " tvork to be done," if 
 one kind of work can be let out by the day, more kinds can 
 be also. 
 
 If one man so employed can be paid for his oivn labor, more 
 can be paid in the same way; and who will pretend that it 
 was ever intended, or that it is practicable if it was, that the 
 entire ivorh of building and completing the New City Hall 
 could be conveniently or successfully carried on without em- 
 ploying some extra men from time to time, as necessity re- 
 quires, by the month, week, or day ? 
 
 How absurd and unjustifiable it would be on the part of 
 this Commission to attempt to go through the tedious and 
 expensive formality and method of procuring plans and speci- 
 Jications, of advertising for sealed bids, and of entering into 
 a long ivritten contract every time a mechanic or laborer is 
 needed to guard, or to care for, or to make some alteration, 
 or start some new improvement, or do some little repairing 
 on the premises, building, or loose property thereabout. And 
 yet if such a rigid, impolitic, and impracticable — if not im- 
 possible — construction is to obtain, this is just lohat mnst be 
 gone through with in every instance where labor, mechanical 
 or otherwise, has to be performed upon the New City Hall. 
 
 Not a man can be employed nor a dollar expended without 
 strictl}^ pursuing this unreasonable and unwise course in every 
 case. If legislation is found to be imijossible, it may be entirely 
 disregarded. If it is found to be impracticable, then it may be 
 read and construed so as to make the impracticable feature 
 or features appear, in the light of the whole, practicable ; and 
 thus it may be carried oid, as in this instance. 
 
 But in my opinion in the case before us we are not driven 
 to any such straits in either construction or practice; and 
 I think if you are not already convinced, a review and com- 
 parison of other provisions of the Act pertinent to this sub- 
 ject-matter will serve to convince you of the justness, cor-
 
 rectness, and practicability of the principles laid clmvn in 
 said resolution, and herein contended for. 
 ^ The title of the Act itself only provides for the ''comple- 
 tion '' of the New City Hall generally, and gives neither in- 
 dication nor hint of any specific method or particular man- 
 ner in which it is to be done. 
 
 Section 5 provides, among other things, in prescribing the 
 duties of the secretary of this Commission, that he shall 
 "keep an accurate account with each officer, clerk, con- 
 tractor, and employee " under the Commission. Now, outside 
 of the Commissioners themselves and contractors, the only 
 persons intended or provided for in terms by the Act are 
 officers, whoare but three in number, and limited to the sec- 
 retary, architect, and superintendent of ivorhs. And no direct 
 or special provision is made for the appointment or employ- 
 ment of eiihev clerks or other employees; yet a positive dwtj 
 is strictly imposed upon the secretary to keep accurate ac- 
 counts with just such j^ersonages, in addition to those with 
 the officers and contractors. 
 
 It will not be contended that the secretary is charged with 
 any such duty as keeping an accurate account with each clerk 
 or other employee of the various contractors performing work 
 or furnishing materials upon the New City Hall, over whom 
 he has no control, and with whose affairs he has no business, 
 and therefore no means of knoivledge whatever. And as there 
 are, outside of the Commissioners themselves, no other per- 
 sons whom he is required to enter upon the books of this 
 Commission, and with whom he is required to keep accounts, 
 except those four~to-wit, officers, contractors, clerks, and em- 
 ployees—it is clear from the scope and tenor of this section 
 alone that the Act contemplates the appointment or employ- 
 ment and payment of the latter tivo classes by this Commis- 
 sion. 
 
 But we will look in vain through the entire act for any 
 special grant or ivarranty of any such authority. 
 
 Yet it will be readily 'admitted that both clerks and other 
 emjyloyees are essentially and absolutely necessary to carry on 
 the business and M^ork of the Commission; and it would be 
 absurd to hold that the law meant that accounts should be 
 opened with them, and that they should be carried on the 
 official books of this Commission, and at the same time deny 
 that it was not intended that they could he employed andpaid 
 thereon. 
 
 We Avill also look in vain through the whole Act to find any 
 restriction or limitation upon either the number of such per- 
 sons which may be so employed, or amount of salaries or
 
 8 
 
 wages Avliicli may be paid such employees, or the nature of 
 their employment. 
 
 The number, wages, and hind of employment are all left 
 entirely to the discretion and at the option and disposition of 
 the Commissioners themselves. 
 
 They are charged with the general business of building and 
 completing the New City Hall, under proper restrictions and 
 suitable limitations, wdth the vast minutia and complicated 
 details left unavoidably and necessarily to their judgment 
 and discretion. 
 
 Section ID, in prescribing that particular class of powers 
 and duties required to be performed by said Commission, by 
 means of resolution, provides, among other things, that the 
 " Board shall appoint oificers, award contracts, allow claims, 
 and authorize the expenditure of money, by resolution entered 
 in the minutes," etc.; and further on provides for the pub- 
 lishing of "all resolutions appointing an officer, awarding a 
 contract, allowing a claim, or authorizing the expenditure of 
 money," etc. 
 
 The " expenditure of money " is a broad, expressive, and 
 comprehensive term, without any restriction or limitation 
 throw^n around it whatever, except that implied from the lan- 
 guage of the title and general features of the Act, and that 
 expressed in a certain clause of Section 12, providing that 
 " in no case shall any portion of said fund (meaning the New 
 City Hall Fund) be used or expended for any other purpose 
 than that herein indicated (meaning for the purpose of con- 
 structing and completing the New City Hall); nor shall any 
 port of the cost of the construction of said building be paid 
 out of any other or different fund," etc. 
 
 Hence, by these jDrovisions it is evident that the "expen- 
 diture of money " by the Commission is circumscribed only 
 by the purpose and by the fund. 
 
 For these objects, and out of this fund, they may disburse 
 at their pleasure. 
 
 They are confined to no other limits ; and so far as the ex- 
 penditure of such fund for such purpose is concerned, they 
 may purchase materials or labor in their discretion, when, 
 where, and of whom they please. 
 
 Within these metes and bounds the Commissioners may 
 travel at wall. 
 
 Section 12 also provides, among other things, in further 
 defining the powers and duties of the Commission, that "The 
 Board of Commissioners, in each fiscal year, may make con- 
 tracts and expend in the construction of said building (mean- 
 ing the New City Hall) a sum equal to the estimated receipts
 
 9 
 
 (meaning the estimate fixed by the Act at 15 cents on the 
 $100) of the fund during the current fiscal year, but no larger 
 or greater sum." Thus using the general term expend in the 
 broadest and fullest sense, without qualification or restriction 
 whatever, except to limit it to the "estimated receii3ts of the 
 fund during the current fiscal year" (meaning the New City 
 Hall fund). 
 
 Section 13, after prescribing the powers and duties of the 
 Commission as to the first moneys coming into the said fund, 
 goes on to provide that other moneys coming into the said 
 fund, shall be expended, as far as practicable, without increas- 
 ing the cost of the work, in completing, from time to time, 
 other parts of said building," etc. Again employing the same 
 broad and significant form, of expression, by the use of the 
 the word ''expended'' in its widest meaning in reference to 
 the finishing up of certain portions of the building, qualified 
 only hj practicahility and cos/J, in this instance. 
 
 Section 14, after first prescribing how bids for material or 
 work may be sought and obtained by the Commission, is 
 careful to provide that the "Board of Commissioners shall 
 have the right to reject any or all bids when, in their judgment, 
 the 2mhlic uderesfs are therehi/ promoted.'' Thus showing im- 
 mistakably that they are complete masters of the situation, and 
 iave absolute control over the entire matter, subject only to 
 the proviso as to the rejection of bids promotinq the public in- 
 terests, of which they are by terms made the sole and exclusive 
 judges. 
 
 Then, if they can reject any bid at all, they can for the 
 same. reason likewise reject more and cdl of the same kind of 
 bids. And if they can reject any one kind of bids, they can 
 for the same reason reject more kinds, and in like manner cdl 
 hinds of bids. 
 
 As will readily appear, therefore, they can, if in their Judg- 
 ment the public interests tvill thereby be promoted, reject any bid 
 oi any class, or all bids of any class. For instance, they can 
 reject any bid for a certain class of material, and for the same 
 reason may likewise reject all bids for that class of material, 
 and by the same process can reject any bid for a ceriain kind of 
 ivork, and for the same reson may reject all bids for that kind 
 of work. And for that matter, as we have already seen, they 
 nave the power to extend the operation of rejection to cdl 
 classes of material and to cdl kinds of work. Now, admitting 
 for the sake of argument that Section 14 is positively man° 
 datory, and not merely directory, as we have already shown, 
 to the extent of requiring the Commission i)i the first instance 
 to proceed under the method of sealed proposals,' then all the
 
 10 
 
 Commissioners would have to do to tlefecd i\ie plan, in whole 
 or in part, would be to advertise for and obtain bids and then 
 reject them in whole or in part, on the ground of promoting 
 the public interests, claimiiuj that they were carrying out the 
 spirit of the law, while no one could deny that they were 
 complying with the letter of the law, and then turn around 
 and buy material or labor from whom and in whatever man- 
 ner in their judgment ivould promote the p)uhlic interest. And 
 who could gainsay it? No one! Or, go a step farther, and 
 grant all that can possibly be claimed for the section, that the 
 mandate reaches and covers the ivhole subject-matter of the 
 supply of material and labor, and that when bids are once 
 rejected for any cause, the Commissioners must advertise for 
 more, and as often as bids are rejected must continue to ad- 
 vertise for more bids that will be acceptable to them. Even 
 then they have it in their power, if so disposed for any reason, 
 under the pretense of carrying out the spirit, while it cannot 
 be doubted that they are complying with the letter of the law, 
 by continuing the process of rejection, perpjetually defeat the 
 whole system, and thus entirely suspjend the work of construc- 
 tion and indeji.nitely postpone the completion of the "New City 
 Hall." 
 
 Or take another view of the matter from a different stand- 
 point — this time from that of the contractors, instead of the 
 Commissioners, and it will be readily perceived how completely 
 the Commission and the city would be at their mercy in the 
 business of building and completiinj the "New City Hall," if 
 we were forced absolutely to depend upon the old contract 
 system for the supply of all our material and labor. At once 
 it will be recognized how easily a combination of contractors 
 for cdl classes or any class of material, or all kinds, or any kind 
 of ivork, could block the entire game, force us to its oiun terTYis, 
 or leave us to whistle, as it were, and the city to suffer. Sup- 
 pose the contractors for materials of cdl kinds pool their issues, 
 which is not an uncommon occurrence as all know, and pre- 
 sent only one bid, or uniform bids, for each class of material, 
 and reaching the whole supply of material, at such exorbitant 
 ficjure or figures, that it would he suicidal to accept; and that 
 as often as such are rejected, only the same or similar bids 
 are offered on re-advertisement, what could you do? Nothing, 
 but continue repeating the expensive and fridtless experiment. 
 Or, suppose we reduce it from the ivhole down to one or more 
 classes or items of material, and we shall find that the result 
 will prove to be the same. 
 
 Take cement or brijck for an example, and such a corner 
 made on either as has just been instanced, and the entire
 
 11 
 
 masonry work on the structure immediately stops, and cannot 
 possibly proceed until the combination is either heaten or its 
 terms conceded. And in like manner the work of masonry 
 affects all luork that has to come after it; and neither carpen- 
 tering, nor plastering Avork, nor any other work can go for- 
 ward until the siege is raised and the dead-lock is broken, thus 
 leaving the whole to stand idle, and what has already been 
 done to fcdl into decay. 
 
 And, without attempting to carry it out in detail by the 
 same mode of reasoning and method of deduction, it will be 
 found that the same identical result follows a \\k.e cornhiiiation 
 on labor as on material; and thus the whole matter of labor 
 is likewise at the disposition and dictation of any like cor- 
 rupt or merciless ring or combincdion which is governed by 
 moneyed influence or political power, and formed and main- 
 tained to monopolize and control it. 
 
 If we could be held to deal only with contractors or middle- 
 men, who speculate and trade on the labor of others, and not 
 ivith the prodacers of labor themselves, j^ou Avill readil}^ per- 
 ceive how easily they could form themselves into a ring, run 
 up the amounts of their bids to fabulous prices, or reduce the 
 wages of labor to such low figures that no wliite man could 
 afford to work, and thereby force the Commission to accept 
 their terms, or permit them to employ Chinamen in violation 
 of law, or suffer the building to rot down for want of con- 
 tinuation and completion. 
 
 Take the case of those who contract for doing brick-ivork, 
 for instance, and you will see that, by making it impracticable 
 or impossible to get the Avork done except through them, they 
 can clog the ivheels of the Avhole machine, and render the 
 Commission utterly powerless. And it is not enough to say 
 — it is no answer to say — that those contingencies are not 
 likely to arise. As long as they exist they are liahle to occur, 
 and we are bound to construe the law so as to cover every 
 contingency. It must be interpreted in the light of every 
 emergency. If such things may take p)lace, it is our duty to 
 provide against them the same as if they were actually 
 taking place. If such things are jjossible, then it must be 
 conceded that the Legislature coiitemplcded just such a state of 
 thhigs ; and if so, we must give a reasonable intendment to 
 them in our construction. Whether they ever come to pass 
 or not, we are to act on principle just as though the}' would 
 come, or actually were coming, to pass. And how are we to 
 know they will not take place ? It must be remembered 
 that we, as a community, are still very much limited in some 
 of these verv commodities, and are some considerable dis-
 
 12 
 
 tance from the great centres and sources of supplies, and that 
 we are by law, and rightfully so, too, restricted both directly 
 and indirectly as to the commodity of labor. Besides, it is 
 a cardinal principle with us, and ought to be with all, to 
 employ only home jnvdiictions of both material and labor. 
 
 By Section 12, as will be seen, the Commission is only fur- 
 ther limited, so far as labor is concerned, to that exclusive 
 of Chinese or Mongolian, and so far as material is concerned 
 to that exclusive of that which is produced by Chinamen, or 
 3Iongolians. 
 
 And this special restriction as to the character of labor to 
 be employed, is the only positive limitation there is placed 
 u^on ihe employment of labor \\])0\\ the New City Hall; and 
 by virtue of the negative words used to express that prohibi- 
 tion, is the only provision in the entii*e statute, relating to 
 the employment of labor, that is mandcdory, and must be 
 strictly followed. 
 
 Section 18, after providing that neither the Commissioners 
 nor officers shall be interested in any contracts upon the New 
 City Hall, goes on to further provide in these significant 
 words: "Nor shall either of them be allowed to receive any 
 gratuity or advantage from any contractor, lahcnxr, or person 
 furnishing labor, or materials," etc. 
 
 And here again, and as unmistakably as before, the Legis- 
 lature have taken pains to draw the distinction between the 
 two classes; the contractors on the one hand, and that of 
 laborers, or persons furnishing labor, on the other. 
 
 For it would be inconsistent and absurd to say that the 
 language employed was intended to reach and embrace only 
 those laborers, or persons furnishing labor, under the direct 
 and exclusive employment and management of the contractors, 
 as they could in no way become connected with, be held re- 
 sponsible to, nor be made dependent upon either the Com- 
 missioners or their officers, and therefore would have no 
 motive nor incentive to contribution to, or bribery of, either 
 the one or the other. 
 
 If such a foolish and untenable construction were at- 
 tempted, it would be found that the law would be left ivithout a 
 reason upon which to base it, and thus, swept of all foundation 
 whatever, would fall to the ground of itself. 
 
 If there were no other provision relating to -this particular 
 matter in the whole Act, I am satisfied that this section alone 
 ought sufficiently to prove to intelligent and inibiased minds 
 that it was both conceived and intended by the framers and 
 passers of the Act, that work upon the New City Hall should 
 and would have to be done by other's than contractors.
 
 13 
 
 But the section goes further, and characterizes the Act of 
 receiving such a gratuity or advantage ix, felony, and prescribes 
 severe penalties for. it by the payment of heavy fines and the 
 serving of long terms in the penitentiary, which could neither 
 be incurred by the o(ficiaIs nor inflicted by the authorities,, 
 with both the immoral motive and the criminal intent re- 
 moved from the actions of the parties concerned. 
 
 It is neither immoral nor criminal, within itself, for any 
 one to grant, and any other to receive, a gratuity or advan- 
 tage of any kind. 
 
 In such a connection as this, it is only where the giver is 
 dependent upon the receiver, and the receiver has official 
 power over the giver, and the one exacts and the other con- 
 cedes a consideration for official favors bestowed. 
 
 But in law, there is no more reason why an employee of 
 one who happened to be a contractor upon the New 
 City Hall, might not, on his own account and individu- 
 ality, make a present to any friend, who happened to be an 
 official, with whom he had no connection whatever, and to 
 whom he was in no way responsible, and upon whom he was 
 in no manner dependent for his employment, than by any 
 other person whomsoever. 
 
 Then if such could be done, under such a construction, the 
 Legislature would be guilty of, and chargeable wdth, the folly 
 and absurdity of creating a high offense and affixing a severe 
 penalty for a class of persons that could never be reached, 
 and to cover a class of criminal cases that coiild never arise. 
 
 I have thus followed this provision in its different phases, 
 and through its different bearings, to demonstrate to you 
 that the section has reference to something, and means something 
 — and that something is, that other labor than contract labor 
 upon the New City Hall is clearly contemplated and plainly 
 meant. 
 
 Section 19 provides, that ' ' any public officer or employee 
 of the City and County of San Francisco, in any way con- 
 nected with the construction of the City Hall, who shall will- 
 fully aid or assist a bidder for a contract," etc., shall be 
 guilty of a misdemeanor and punished as therein prescribed; 
 which only goes to constitute additional evidence, and to 
 further prove the correctness of the reasoning and conclu- 
 sion arrived at under Section 18. 
 
 Section 20 also provides, that "any officer or employee 
 who," amongst other things prohibited, "shall knowingly or 
 carelessly certify to the correctness of a claim of a con- 
 tractor, or other, for work or labor, or material, for more 
 than such contractor is lawfully entitled, or who shall will-
 
 14 
 
 fully or carelessly certify that a greater amount of work or 
 labor has been performed than has been actually done," etc., 
 "with the intention of defrauding," etc., shall be guilty of a 
 misdemeanor and punished as therein prescribed. 
 
 Thereby furnishing still more, and if possible greater 
 proof, that the Act throughout presupposes the employment 
 of persons outside oi the contract system, as commonly under- 
 stood and practiced. 
 
 And thus, having wended our way cautiously and critically 
 through the entire frame, lueh, and ivoof of the Act, penetrat- 
 ing the himost recesses and laying hare the most secluded por- 
 tions as we have gone, we find ourselves at last at the outcome, 
 with the satisfaction of believing and feeling, all, as I trust, 
 that the Legislature has wisely and justly made ample pro- 
 vision for, and clothed the Commissioners with, sufficient 
 power over the employment of labor in, upon, and about the 
 New City Hall, as they may, in the exercise of a prudent dis- 
 cretion, deem best for the interests of the public at large, to 
 whose interests as a ivhole they are bound to look, in the ag- 
 gregate, and not as to those of a small portion only, in the 
 segregate. 
 
 But let us turn and see how others, whose duty it has been 
 to construe and administer these same provisions, looked at 
 this proposition, and what practice they followed under like 
 circumstances. Let us go back to the operations of those 
 who have been required to travel over this same road and 
 traverse this same ground before us, and examine their 
 record, and see what precedents they have left behind them 
 to guide those who must come after them. 
 
 Work upon the New City Hall was commenced under the 
 present law, about the beginning of the fiscal year 1876-77, 
 by our predecessors, and the record shows the employment 
 by them of the following employees, by the day, week, or 
 month, as the case may be, and otherwise than under contract, 
 as follows :
 
 15 
 
 Old Commission. 
 
 it 
 05 
 
 to 
 
 o 
 
 "o 
 
 6 
 
 Foremen, 
 
 Mechanics, 
 &c. 
 
 Laborers, 
 &c. 
 
 CO 
 
 ® 
 
 O 
 % 
 
 3 
 
 00 
 
 Amount 
 of 
 
 o 
 
 00 
 
 No. 
 
 Days. 
 
 No. 
 
 Days. 
 
 1 
 No. Days. 
 
 Fund. 
 
 1876-7 
 
 12 
 
 55 
 
 1543 
 
 22 
 
 660 
 
 90 
 
 1284 
 
 167 
 
 3487 
 
 $ 333,331 72 
 
 1877-8 
 
 12 
 
 58 
 
 1740 
 
 47 
 
 1380 
 
 78 
 
 1218 
 
 183 
 
 4338 
 
 347,633 67 
 
 1878-9 
 
 12 
 
 56 
 
 1680 
 
 29 
 
 1564 
 
 78 
 
 1108 
 
 163 
 
 4352 
 
 340,712 92 
 
 1879-80 
 
 5 
 
 3 
 
 90 
 
 26 
 
 600 
 
 12 202 
 
 1 
 
 35 
 
 892 
 
 47,530 07 
 
 
 41 
 
 
 
 
 
 1 
 
 548 
 
 13069 
 
 $1,069,208 38 
 
 New Commission. 
 
 1879-80 
 
 7 
 
 26 
 
 780 
 
 28 
 
 840 
 
 244 
 
 3256 
 
 298 
 
 4876 
 
 1880-1 
 
 2 
 
 2 
 
 60 
 
 8 
 
 240 
 
 97 
 
 721 
 
 107 
 
 1021 
 
 
 9 
 
 
 
 
 
 
 
 405 
 
 5897 
 
 3,542 12 
 
 From this interesting and instructive table, which I have 
 with much trouble and care prepared for your information, it 
 will be seen that our predecessors, who evidently fully be- 
 lieved in the contract system, and spared no pains to carry 
 it out, either considered they had authority for employing 
 such men, or else they deliberateh/ violated the law. 
 
 But no question as to the validity of their acts was even 
 thought of, and no one ever supposed that they were miscon- 
 struing or running counter to the law. 
 
 But while it is obseiwed that they employed men in this 
 way to a considerable number, yet they were not so liberal 
 as the present Commissioners. 
 
 It will be perceived, on comparison, that in a period of 41 
 months, in making an expenditure of $1,069,208, they em- 
 ployed but 548 men for only 13,069 days, while the present
 
 16 
 
 Commissioners liave, in a period of nine months only, in 
 making an expenditure of but $66,542, given employment to 
 405 men for 5,897 days. 
 
 What was done then can be done now, and any one who 
 did not object then will have the same reason to hold his 
 peace now, unless it be to serve some selfish motive or politi- 
 cal purpose. 
 
 All we have to do now is to follow the same practice as 
 then, only enlarging and improving the service in that re- 
 gard. 
 
 And I believe that both facts and figures will bear me out 
 in the assertion, that the work on the New City Hall can, and 
 should, without cutting down wages below standard rates, be 
 done as cheap, and even cheaper, and as well and even bet- 
 ter, by employing men by the day, than under the old con- 
 tract system, as it has heretofore been conducted in this city 
 and county. 
 
 Since the compilation of the above table, the members of 
 this Commission have felt themselves authorized and justi- 
 fied in employing by the day about one hundred extra men, 
 and it would certainly puzzle a Philadelphia lawyer even, to 
 satisfactorily account for the reason why, if it is lawful to 
 employ one hundred men one month it is not lawful to em- 
 ploy them the next month; and why, if it is justifiable to 
 employ a large force of men, or any men, just before a con- 
 vention or an election, it is not justifiable to employ the 
 same or other men just after a. convention or an election, 
 provided there is work to do and money to pay for it. 
 
 It would seem to be in order for those who are in doubt 
 or in opposition, to explain why the action of this Commis- 
 sion under this identical law was valid yesterday and not 
 valid to-day, or why this same law may be violated with 
 more impunity to-day than to-morrow; or why it happens to 
 be discovered to be illegal at this particular time. 
 
 But happily we are not confined to our immediate prede- 
 cessors in ofiice alone, nor to this city and county even, for 
 precedents for the employment of labor by the day on the 
 public improvements. Take the case of the construction of 
 the Branch State Prison near the town of Folsom, and what do 
 we find ? Why we find that a Commisson, composed entirely 
 of Democrats (Governor Irwin, Lieutenat-Governor Johnson, 
 and Secretary Beck), acting under a stronger and more strin- 
 ngent law in favor of labor by the contract system (approved 
 March 30, 1874) than the one we are now laboring under, did 
 not hesitate to employ men by the day, but even went so far as 
 to take work out of the hands of contractors and give it out by
 
 17 
 
 the day. There the Commissioners were not only enjoined 
 to advertise for bids in the first instance, but in addition to 
 the requirements of our law were specifically required to ad- 
 vertise "anew" as often as they were rejected. And by lay- 
 ing the two acts side by side and comparing them together 
 throughout, it can be seen at a glance that the power of dis- 
 cretion of the Commissioners is in that Act far more limited 
 and restricted than in this one. Yet they had the courage 
 to exercise a wise and humane discretion in the matter of 
 labor, and no one felt called upon nor had the hardihood to 
 raise a voice against it, or attempt to stop them by a resort 
 to the Courts, or otherwise. If this was good Democratic 
 doctrine then, why not now ? If it was a safe Democratic 
 practice then, why not now? And if the doctrine and prac- 
 tice were good enough for Democrats then, why not good 
 enough for Workingmen now? If Democratic officials could 
 take such responsibilities then, Avhy not ^'orkingmen's offi- 
 cials now? If such men did not halt between two opinions 
 then, why need we now ? And especially when it is remem- 
 bered that those officials were never guided by the pledges 
 nor bound by the ties that we are. And if we will only 
 turn to our own proud and magnificent State Capitol at Sac- 
 ramento, we will find another living example of, and powerful 
 precedent for, the cause of day's labor on our public works. 
 I believe there are workingmen in this city to-day who 
 worked upon it, who will bear me out in the statement that 
 it is one of the best and most cheaply constructed public 
 buildings in the Union, and it was mostly if not entirely 
 erected and completed by day's works, under our own laws 
 at that. 
 
 Still other examples might be added and other precedents 
 might be cited, but what is the use of going further. Unless 
 the right disposition is found, the law always presents 
 barriers, and precedents go for naught. If the spirit is want- 
 ing, the imagination can always discover a bugbear in any 
 statute, When the heart is in the work, a way is easily 
 found. 
 
 If such a course can be pursued and sucli things be done 
 under more restrictive laAvs, let me ask what may be done 
 under more liberal laws ? If such is ])ossible and practica- 
 ble under the " old Constitution," which is entirely silent upon 
 the subject, let me inquire what is possible and practicable 
 under the "new Constitution," which, in Section 17 of Article 
 XX, speaks in no unmistakable terms that "eight hours 
 shall constitute a legal day's work on all public work,' ' and
 
 18 
 
 by which it is evident that its framers clearly contemj^lated 
 that such work might and should be done by the day. 
 
 But let us turn from the record of fact and example in the 
 matter of building, and take a glance at the authorities for 
 law and precedent in the construction of statutes of this 
 character, beyond the reading of the statute itself, 
 
 And for this purpose it would seem unnecessary to go 
 further than to read from our own able and authoritative law 
 writer on " Constitutional and Statutory Limitations," from 
 the University of Michigan, and Supreme Bench of Michi- 
 gan, Judge Thomas M. Cooley. 
 
 In his great work on " Constitutional Limitations," while 
 treating of " Directory and Mandatory provisions," this pro- 
 found thinker and acknowledged commentator says : 
 
 "The important question sometimes presents itself, whe- 
 ther we are authorized in any case, when the meaning of a 
 clause of the Constitution is arrived at, to give it such prac- 
 tical constrncfion as will leaA^e it optional with the depart- 
 ment, or officer to which it is addressed, to obey it or not 
 as he shall see fit. Li respect to statutes, it has long been 
 settled that particular provisions may be regarded as directory 
 merely, by which it is meant that they are to be considered 
 as giving directions which ought to be followed, but not as 
 so limiting the power in respect to which the directions are 
 given that it cannot effectually be exercised without ob- 
 serving them." 
 
 This, as will be seen, fits the case before us exactly; as 
 the only question as to the statute in this instance being 
 considered mandatory or directory, arises on that particular 
 j)ro vision relating to the mode or manner of doing the work 
 or furnishing the material, and not to the real object of the 
 Act at all. 
 
 Under this head, and in support of this proposition, Judge 
 Cooley quotes an opinion of the Supreme Court of New York, 
 afterwards approved by the New York Court of Appeals, and 
 which lays down the rule as one settled by authority, that 
 " statutes directing the mode of proceeding by public offi- 
 cers are directory, and are not regarded as essential to the 
 validity of the proceedings themselves, unless it be so de- 
 clared in the statute." 
 
 And in a late case in Illinois, the Supreme Court of that 
 State, in the matter of ascertaining and assessing damages 
 upon real estate benefited for local improvement, by Com- 
 missioners, who were required by the statute to sign and 
 return their award within a specified time, but who failed to 
 comply with the law in that resjDect, and made return after-
 
 19 
 
 wards, after deciding that the case would turn upon the ques- 
 tion as to whether any advantage would be lost, or right 
 destroyed, or benefit sacrificed, either to the public or parties 
 affected, goes on to hold in these express words, that "There 
 are no negative words used declaring that the functions of 
 the Commissioners shall cease after the expiration of the 
 forty days, or that they shall not make their return after that 
 time; nor have we been able to discover the least right, 
 benefit, or advantage which the property owner could derive 
 from having the return made within that time, and not after, 
 * * "^ as the property owner has the same time and op- 
 portunity to prepare himself to object to the assessment and 
 have it corrected." And likewise it would seem difficult, if 
 not impossible, to see what advantage would be lost, or right 
 destroyed, or benefit sacrificed, either to the city or the public 
 at large, in further pursuing the mode here proposed for doing 
 the work we have to do, and which has been, and is being, 
 followed to a considerable extent. 
 
 Chief Justice Shaw, of Massachusetts, in the celebrated 
 tax case of Torrey vs. MiUbury, says: 
 
 " In considering the various statutes regulating the assess- 
 ment of taxes and the measures preliminary thereto, it is 
 not always easy to distinguish which are conditions prece- 
 dent to the legality and validity of the tax, and which are 
 directory merely, and do not constitute conditions. One 
 rule is very plain and well settled that all those measures 
 that are intended for the security of the citizen, for insuring 
 equality of taxation, and to enable everyone to know with 
 reasonable certainty for what polls and tor what real estate 
 he is taxed, and for what all those who are liable with him 
 are taxed, are conditions precedent; and if they are not ob- 
 served, he is not legally taxed, and he may resist it in any 
 of the modes authorized by law for contesting the validity 
 of the tax. But many regulations are made by statutes de- 
 signed for the information of assessors and officers, and in- 
 tended to promote method, system, and uniformity in the 
 modes of proceeding, a compliance or non-compliance with 
 which does in no respect affect the rights of tax-paying 
 citizens. These may be considered directory." 
 
 And if in such a vital matter as taxation itself the mode 
 of proceeding does not seriously affect the rights of tax- 
 payers, so in this far less important matter will it be hard to 
 find wherein, more fully following the mode of proceeding 
 proposed, which has been partially followed from the start, 
 will injuriously affect the rights of this community. 
 
 The Supreme Court of Wisconsin, in a noted case involv-
 
 20 
 
 ing the construction of statutes upon the point of being 
 mandatory or directory, held: 
 
 ' ' We understand the doctrine concerning directory stat- 
 utes to be this : That where there is no substantial reason 
 why the thing to be done might not as well be done after 
 the time prescribed as before, there is no presumption that 
 by allowing it to be so done it may work an injury or 
 wrong." 
 
 And as mode of doing and time of doing stand substan- 
 tially in the same relation and on the same footing to the 
 thing itself to be done, by analogy or reasoning, ' 'there is no 
 substantial reason why the thing to be done might not as well 
 be done " in a different manner from that pointed out by the 
 statute. 
 
 Judge Cooley further says, in his admirable work before 
 mentioned, that ' ' Those directions which are not of the es- 
 sence of the thing to be done, but which are given with a 
 view merely to the proper, orderly and prompt conduct of the 
 business, and by a failure to obey which the rights of those 
 interested will not be prejudiced, are not commonly to be 
 regarded as mandatory; and if the act is performed, but not 
 in the time or in the precise mode indicated, it may still 
 be sufficient, if that which is done accomplishes the sub- 
 stantial purpose of the statute. But this rule presupposes 
 that no negative words are employed in the statute which ex- 
 pressly or by necessary implication forbid the doing of the 
 act at any other time or in any other manner than as 
 directed." 
 
 And in support of this doctrine he cites a large number of 
 the most important cases, bearing directly on this question, 
 from the highest Courts in the States of Massachusetts, Ver- 
 mont, Illinois, Pennsylvania, Maryland, Connecticut, Ohio, 
 Michigan, Nebraska, Indiana, Wisconsin, Louisinna, Mon- 
 tana, Texas, California, Alabama, New York and other States. 
 
 He also refers to the masterly work of Mr. Sedgwick on 
 "Statutory and Constitutional Law," and quotes the renowned 
 Lord Mansfield of England, who long since firmly laid down 
 the doctrine — which has never since been departed from, and 
 will live as long as enlightened law itself — that whether a 
 statute is mandatory or not depends upon whether that 
 which is directed to be done, is or is not of the essence of 
 the thing required. 
 
 Now let us try the matter we have in hand by this plain 
 and easy rule, and see how it works'. Then what is the prin- 
 cipal thing to be done by us under the "New City Hall" 
 Act? You can see at a glance that it is not the letting of
 
 21 
 
 contracts, nor the purchasing of material or the hiring of 
 labor in any particular manner. As yOu can readily perceive, 
 these are merely preliminary measures to securing the main 
 object sought by, and incidental forms and modes of 
 proceeding to accomplish the real purpose of the statute. 
 As you can clearly understand, they are but the sJtadoiv, and 
 not the substance — only the forms, and not the essence. 
 
 The principal thing to be done — the real purpose to be 
 accomplished — the main object to be attained— the actual 
 duty to be performed — the great business to be consummated 
 by us — is the completion of the New City Hall. Nothing 
 short of this, and nothing beyond this. This is our begin- 
 ning and our ending. All else is but incidental and tribu- 
 tary. The completion of the building is the chief business 
 to be carried on and carried out by us, and all other things 
 connected with it are but helps to that purpose and means 
 to that end. And as Judge Cooley wisely and correctly says, 
 all we could be expected and would be compelled to do, even 
 under the directions prescribed by the Act itself, is to carry 
 out the "the subtantial purjDose of the statute, "which is none 
 other than the completion of the New City Hall. 
 
 More especially is this true, since there are no words of a 
 negative character whatever, either in this particular provis- 
 ion or anywhere else in the entire Act, to take the proposition 
 out of the operation of this rule, by either expressl}' or im- 
 pliedly forbidding the doing of work in the manner here 
 proposed. 
 
 Mr. Justice AUen G. Thurman, of Ohio, who is acknowl- 
 edged by all to be one of the very profoundest jurists in the 
 land, in considering the much higher and stronger case of 
 the constitutionality of a statute whose validity was assailed 
 on the ground that it was not passed in the mode prescribed 
 by the Constitution, treats, the question at length, and in this 
 able and conclusive manner: 
 
 "By the term mode, I do not mean to include the authority 
 in which the law-making power resides, or the number of 
 votes a bill must receive to become a law. That the power 
 to make laws is vested in the Assembly alone, and that no 
 Act has any force that was not passed b}^ the number of votes 
 required by the Constitution, are nearly or quite self-evident 
 propositions. These essentials relate to the authority by 
 which, rather than the mode in which, laws are to be made. 
 Now, to seciire the earful exercise of this power, and for 
 other good reasons, the Constitution prescribes or recognizes 
 certain things to be done in the enactment of laws, which 
 things form a course or mode of Legislative procedure. Thus
 
 22 
 
 we fiucl, infer alia, the provision that every bill shall be fully 
 and distinctly read on three different days, unless in case of 
 urgency three-fourths of the House in which it shall be 
 pending shall dispense with the rule. This is an important 
 provision, without doubt; but, nevertheless, there is much 
 reason for saying that it is merely directory in its character, 
 and that its observance by the Assembly is secured by their 
 sense of duty and official oaths, and not by any supervisory 
 power of the Courts. Any other construction, we incline to 
 think, would lead to very absurd and alarming consequences. 
 If it is in the power of every Court (and if one has the 
 power, every one has it) to inquire whether a bill that passed 
 the Assembly was 'fully and distinctly' read three times in each 
 House, and to hold it invalid if, upon any reading, a word was 
 accidentally omitted, or the reading was indistinct, it would 
 obviously be impossible to know what is the statute law of 
 the State. 
 
 "Now, the requisition that bills shall be fully and distinctly 
 read, is just as imperative as that requiring them to be read 
 three times; and as both relate to the mode of procedure 
 merely, it would be difficult to find any sufficient reason why 
 a violation of one of them would be less fatal to an Act, than 
 a violation of the other." 
 
 This opinion was afterwards affirmed and recognized as 
 the law by the Supreme Court of Ohio, in which it is held 
 that : 
 
 ' ' The provision that no bill shall contain more than 
 one subject which shall be clearly expressed in its title, is 
 also made a permanent rule in the" introduction and passage 
 of bills through the Houses. The subject of the bill is re- 
 quired to be clearly expressed in the title for the purpose of 
 advising members of its subject when voting in cases in 
 which the reading has been dispensed with by a two-thirds 
 vote. The provision that a bill shall contain but one subject 
 w^as to prevent combinations by which various and distinct 
 matters ot legislation should gain a support which they 
 could not if presented separately. As a rule of proceeding 
 in the General Assembly, it is manifestly an important one. 
 But if it was intended to effect any practical object for the 
 benefit of the people, in the examination, construction, or 
 operation of Acts passed and published, we are unable to 
 perceive it. The title of an Act may indicate to the reader 
 its subject, and under the rule each Act would contain one 
 subject. To suppose that for such a purpose the Constitu- 
 tional Convention adopted the rule under consideration 
 would impute to them a most minute provision for a \erj
 
 23 
 
 imperfect heading of the Chapters of Laws and their 
 subdivision. This provision being intended to op- 
 erate upon bills in their progress through the Gen- 
 eral Assembly, it must be held to be directory only. 
 It relates to bills, and not to Acts. It would be most mis- 
 chievous in practice to make the validity of every law de- 
 pend upon the judgment of every judicial tribunal of the 
 State as to whether an Act or a bill contained more than 
 one subject, or whether this one subject was clearly ex- 
 pressed in the title of the Act or bill. Such a question 
 would be decided according to the mental precision and 
 mental discipline of each Justice of the Peace and Judge. 
 No practical benefit could arise from such inquiries. We are 
 therefore of opinion that, in general, the only safeguard 
 against the violation of these rules of the Houses is their re- 
 gard for and their oath to support the Constitution of the 
 Btate." 
 
 I read to this extent from the text of these exhaustive and 
 convincing decisions, which constitute the law as to consti- 
 tutional as well as statutory construction upon this impor- 
 tant subject in the great and advanced State of Ohio to-day, 
 and, in fact, throughout the Union, except, as in our own 
 State, where the Constitution itself, by express terms, makes 
 all its provisions either mandatory or prohibitory, in order 
 to show the natural inference, and draw the inevitable con- 
 clusion therefrom, by leading your minds directly to the 
 pertinent inquiry that if such is the broad and liberal rule 
 of grave constitutional construction involving the very pro- 
 ceedings of the law-makers themselves in making the law, 
 what must be the breadth and liberality of the statutory 
 construction of the ordinary proceedings of officials in their 
 proceedings under that law ? And I feel that, in order to 
 convince you how much higher and narrower the rule of 
 construction is when applied to the Constitution instead of 
 a statute, I need only quote the forcible language of Mr. 
 Cooley himself, wherein he says : 
 
 " The Courts tread upon very dangerous ground when they 
 venture to apply the rules which distinguish directory and 
 mandatory statutes to the provisions of a Constitution. 
 ConstitutioDS do not usually undertake to prescribe mere 
 rules of proceeding, except when such rules are looked 
 upon as essential to the thing to be done; and they 
 must then be regarded in the light of limitations 
 upon the power to be exercised. It is the province 
 of an instrument of this solemn and permanent char- 
 acter, to establish those fundamental maxims and fix
 
 24 
 
 those unvarying rules, by which all departments of gov- 
 ernment must at all times shape their conduct; and if it de- 
 scends to prescribing mere rules of order in unessential 
 matters, it is lowering the proper dignity of such an instru- 
 ment and usurping the proper province of ordinary legisla- 
 tion. We are therefore not to expect to find in a Constitu- 
 tion, provisions which the people in adopting it have not 
 regarded as of high importance, and worthy to be embraced 
 in an instrument which, for a time at least, is to control 
 alike the government and the governed, and to form a stand- 
 ard by which is to be measured the power which can be ex- 
 ercised as well by the delegate as by the sovereign people 
 themselves." 
 
 From all which the ditierence between the rule as applied 
 to the Constitution and the statute, and the balance in favor 
 of the statute, are too obvious and striking to require further 
 quotation or discussion. It only remains, therefore, neces- 
 sary to refer to Judge Cooley but once more in regard to the 
 force and effect of the actions of officials exercising discre- 
 tionary power under the statute, wherein he asserts that: 
 
 "Great deference has been paid in all cases to the action 
 of the executive department, where its officers have been 
 called upon, under the responsibilities of their official oaths, 
 to inaugurate a new system, and where it is to be presumed 
 they have carefully and conscientiously weighed all consid- 
 erations and endeavored to keep within the letter and spirit 
 of the Constitution. If the question involved is really one 
 of doubt, the force of their judgment, especially in view of 
 the injurious consequences that may result from disregard- 
 ing it, is fairly entitled to turn the scale in the judicial mind." 
 And in precisely the same category, and in no less a light, 
 would stand the actions of this Commission in the eyes of 
 the Judiciary, in the employment of labor upon the New 
 City Hall, even if there were any doubt of their right to 
 exercise a discretion in the matter, or if they were to inaug- 
 urate and carrj' on an entirely "new system " under a pro- 
 vision of the Constitution itself, instead of a statute merely. 
 Again, Dwarris, a distinguished and reliable writer on 
 the law of statutes, asserts " That it may be stated as the 
 general rule that where a statute directs certain proceedings to 
 be done in a certain way or at a certain time, and the form 
 or period does not appear essential to the judicial mind, the 
 law will be regarded as directory, and the proceedings under 
 it will be held valid, though the command of the statute as 
 to form and time has not been strictly obeyed — the time and 
 manner not being of the essence of the thing required."
 
 25 
 
 In 6 and 7 Hill's N. T. Keports it is lield that "The true 
 distinction as to mandatory and directory statutes is this — 
 Where the provision of the statute is the essence of the thing 
 required to be done, and by which jurisdiction to do it is 
 claimed, it is mandatory; otherwise, where it relates to form 
 and manner, and where an act is incident, as after jurisdic- 
 tion has been obtained, it is directory." 
 
 In the case of Pierce vs. Morris, 2 A. and E. 94, the Court 
 says: "I understand the distinction between directory and 
 imperative statutes to be that a clause is directory "when 
 the provisions contain mere matters of direction and nothing 
 more: but not so when they are followed by such words as 
 are used here — viz., that anything done contrary to such pro- 
 visions shall be null and void to all intents," etc. 
 
 In 1 Baldwin's Eeports, it is held that "The provisions of 
 a law which is merely directory are not to be construed into 
 conditions precedent." 
 
 And Dwarris on Statutes says, "When the terms of a 
 statute leave room for any administrative discretion to be 
 exercised, it cannot be interpreted to be mandatory, or to 
 be a condition precedent." 
 
 And thus we might go through and exhaust the entire cat- 
 alogue of reports of States and works of eminent men, but 
 leaving that vast array of authorities behind, and coming on 
 down to the more familiar but well-established jurisprudence 
 of our own fair State of California, we readily find that we 
 need go no further for ample legal warrant and judicial pre- 
 cedent for our action in this matter. 
 
 In the 4 California Eeports, in the case of Vermule vs. 
 Shmv, involving the construction of Section 180 of the Prac- 
 tice Act, which provides that, "upon the trial of an issue of 
 fact by the Court, its decision shall be given in writing, and 
 filed with the Clerk, within ten days after the trial took 
 place. In giving the decision, the facets found, and conclu- 
 sions of law, shall be separately stated. Judgment upon the 
 decision shall be executed accordingly." Our late Justice 
 Heydenfeldt, delivering the opinion of the Court, said: 
 
 */ We therefore decide that, as to the time required for the 
 written decision to be filed, or the relative order in which it 
 should be done, the Act is only directory." 
 
 And again, in the 49 California Eeports, in the late case 
 of Lamont vs. Solano Coimty, involving the construction of 
 Section G32 of the Code of Civil Procedure, which provides 
 that, "upon the trial of fact by the Court, its decision must 
 be given m writing, and filed with the Clerk within twenty 
 days after the cause is submitted for decision; and unless
 
 26 
 
 the decision is filed within that time, the action must be tried 
 again." Our recent and acknowledged Chief Justice Wallace 
 held, speaking for the Court, "we are of opinion that the 
 provision in the statute is directory merely." 
 
 And if to such an extent the directory rule is carried by, a 
 Judge, in the most important litigation of the country, cov- 
 ering the vast domain of civil rights and property interests 
 of the people, to what length may a mere ministerial officer 
 go in exercising a discretion in executing the simple direc- 
 tions of an ordinary statute ? 
 
 The word "shall," in the first case, is precisely the same 
 word used in Section 14th, the "New City Hall Act," without 
 the qualifying and modifying effect of the precedent word 
 "when." And the word "must," in the last case, in its 
 double use and surrounding connection, is certainly as im- 
 perative in its import as the word "shall." And in a still later 
 case of The People vs. The Supervisors of the County of San 
 Luis Obispo, our present very able and much esteemed Jus- 
 tice McKinstry, in construing an Act of the Legislature of 
 this State, empowering and requiring the Board of Super- 
 visors of San Luis Obispo County to issue county bonds for 
 improving the public roads of the county, took occasion to 
 say that, "The word ' required ' in the first section may be 
 rejected in accordance with the principle, that part of a 
 statute may be held unconstitutional, and the rest valid, un- 
 less it appear that the Legislature would not have approved 
 the portion which they have power to enact, disconnected 
 from that which is void. Indeed it may be laid down as a 
 rule, in this class of statutes, that where the word ' shall ' 
 is used, it should ordinarily be construed to be the equivalent 
 of ' may.' Words imperative should be interpreted as per- 
 missive, in order to give all possible effect to the intention of 
 the Legislature." < 
 
 And I might, with equal confidence and like success, carry 
 you with me into the 42, 44, and 49 California Reports, and 
 in fact through nearly every Report in the State, in further 
 support of the same rule and practice, but I do not care to 
 go any further, and will here rest the law of the matter, with- 
 out either doubt or fear of the consequences. 
 
 It now remains only for me to finally say, that this Com- 
 mission must decide for itself, now and forever, whether it 
 will hire the labor upon this Hall directly from the men who 
 perform it, and pay them the profits there is to be made on 
 it, or whether they will employ others who buy and sell labor 
 second-hand to hire it for them, and let them pocket the pro- 
 ceeds to be derived from it.
 
 27 
 
 There is left to this Commission but one of the two 
 courses. 
 
 There is no half-way ground to be occupied, and no middle 
 direction to be pursued. It is simply one thing or the other. 
 
 The provision of the Act under consideration is either 
 altogether mandatory or only directory. 
 
 If considered to be mandatory, this Commission must ab- 
 solutely obey it. If held to be directory merely, then they 
 may exercise a reasonable discretion. 
 
 If mandatory, they must positively hire all labor, and pur- 
 chase all material by contract, awarded upon sealed bids. 
 
 If directory, then they may employ labor by tlie day or 
 otherwise, as they deem best. 
 
 If mandatory, every man now^ employed by them, not 
 under special contract awarded upon sealed bids, must be 
 discharged, and no more employed. If directory, then those 
 men emjDloyed by the day, week, or month may not only be 
 retained, but as many others as are found to be necessary or 
 profitable may be in like manner employed. For there is 
 no authority whatever in the statute, outside of this con- 
 struction, to warrant or justify the employment of labor of 
 any kind otherwise than under the old contract system. 
 
 The work of discharge cannot be stopped half-way, or 
 anywhere short of the end. It must be as far-reaching and 
 sweeping as the mandate is absolute and imperative. The 
 whole must go, or none need go. If one may stay, all may 
 stay; and if any at all may stay, more may come. Are you 
 prepared — are you ready to begin the work of discharge ? 
 Then discharge these employees, and they will be turned over 
 to the tender mercies of contractors, or be compelled to find 
 work elsewhere, and where I fear it is not to be found. 
 
 Discharge these men, and the thousand one little repairs 
 about this extensive building, needing constant attention, 
 cannot be made, nor the unavoidable extra work be done, 
 and the structure must suffer from the consequences. 
 
 Discharge these men, and its ornamental and costly 
 grounds, needing continual care, must be neglected and go 
 to ruin. 
 
 Discharge these men, and all this vast property must go 
 unwatched in day, and unguarded at night, and left exposed 
 to the ravages of tlie elements and the spoliation of the 
 vicious and destructive. 
 
 Discharge these men, and the Commissioners will have to 
 neglect their more important and vital duties in other official 
 fields, and devote themselves almost exclusively to the minutia
 
 28 
 
 and details of this great work. Are tliey prepared to go into 
 such a complicated and untried business by themselves ? 
 
 Discharge these men, and the secretary must hidividucdly 
 undertake and perform the entire work of keeping all the 
 difl'erent books, the papers, and the records of one of the 
 most iinportant branches or departments of the municipal 
 government; must personally attend and look after the 
 business of every meeting, general or special; must, with 
 his OMai hands, write up the full and correct minutes of all 
 proceedings of the Board of Commissioners; must himself 
 keep accurate and complete accounts of all the receipts and 
 disbursements of nearly or quite half a million of dollars 
 during this fiscal year; must keep full and correct accounts 
 with all the officers, all the clerks, all the contractors, and 
 all other employees; and must, by himself alone, perform 
 all the other varied and laborious services necessarily and 
 unavoidably required of him and his office in, upon, and 
 about the New City Hall. Do you think he could do all 
 this without assistance ? 
 
 Discharge these men, and the architect must, by his own 
 hands, prepare all the long and critical plans and specifica- 
 tions, and make all the elaborate and difficult drawings and 
 tracings for the same; must personally examine and judge 
 of the quality and durability of all the countless materials 
 of every kind and nature used in the construction, and must 
 individually examine all the work done of every kind and 
 description, and by himself positively ascertain that every 
 vestige of it is done in a good, in a substantial, and in a 
 worknianlike manner, and in exact accordance with the 
 plans, specifications, and drawings which he has, unaided, 
 first prepared for the whole building, and such other im- 
 portant and multifarious duties as may be imposed upon him 
 and his office by this Commission. Does any one imagine 
 that he can do all this without aid before July 1, 1881 ? 
 
 Discharge these men, and the superintendent of works 
 must, at all times during the performance of any and all 
 work, and the furnishing of any or all materials, be present 
 in person, and himself also see that every part of work is 
 done in a good and substantial and workmanlike manner, 
 and that every portion of the materials used comply in all 
 respects with the description and quality called for in the 
 plans and specifications for the work; and he must individu- 
 ally perform all other and further duties as must inevitably, 
 and from the very nature of his position, be required of him 
 and his office by this Commission connected with the con-
 
 29 
 
 struction and completion of the New Citv Hall. Does any 
 one supposes that he can do all thi without help ? 
 
 Discharge these men, and the three members of this Com- 
 mission, with the aid alone of the three officers specifically 
 provided for in the statute, must undertake to rightfully and 
 successfully superintend, direct, manage, supervise, carry on, 
 and carry out to final completion, in a very brief time, the 
 most important, costly, and valuable of all our internal pub- 
 lic improvements, in either city or State. Does any one 
 think* that we could do either ourselves or the public justice 
 by such a narrow construction and absurd proceeding ? This 
 is just what the strict rule of mandate that has been invoked 
 against us would lead us to in both law and practice. Let 
 us avoid all such maelstroms and quicksands, and steer clear 
 for smooth water and fair sailing. Let us take the politic, 
 wise, and just course, so clearly pointed out to liberal and 
 fair-minded men, and leave the rest to the people whom it is 
 our duty to serve. 
 
 This vast and costly structure is not being built for to-day, 
 but for to-morrow, and for the next day, and for the great here- 
 after as well. It is not erected for the occupancy of us only, but 
 for our children, and our children's children, who are also to 
 come after us. This immense and expensive structure does 
 not belong alone to those who now pay taxes to rear it, but 
 it is also the inheritance of those who must hereafter pay 
 taxes to preserve and maintain it. This monstrous pile is 
 not the exclusive property of the rich, whose money buys 
 its materials and pays for its erection, but it is likewise the 
 possession of the poor, whose skillful hands and strong 
 arms have laid deep its solid foundations and 
 will raise aright its stupendous walls and lofty 
 towers. This gi-and and magnificent hall, with its 
 beautiful and inviting grounds, and its elaborate and taste- 
 ful ornaments, when completed by us, the servants, and de- 
 livered over to our masters, the people, will then stand not 
 only as a proud and living monument of the bounty and mu- 
 nificence of the more fortunate owners of the property, whose 
 thrifty proceeds shall have paid the final farthing of its pur- 
 chase price, but will at the same time rear its monstrous head 
 and lift its piercing pinnacles in bold relief, as an humble 
 but enduring memorial to the genius and enterprise of their 
 less fortunate brothers, whose trained hands and steady 
 nerves spread the uniting mortar and gluing cement, and laid 
 the connecting bricks and binding stones, and attached the 
 fitting joints, and drove home th^ clinching nails; and whose 
 physical endurance and patriotic devotion must ever guard 
 
 297075
 
 30 
 
 and protect it against the ravages of storm and flood and 
 flame, as well as from the incursions of internal enemies and 
 the invasions of foreign foes. Selfish indeed must be the 
 makers of law — arbitrary indeed must be the law itself^ — cruel 
 indeed must be the decree under it — and tyrannical indeed 
 must be the executive who administers it — that will say that 
 these men and their descendants shall have neither voice nor 
 opportunity in the great work of the internal improvements 
 of the country which they love so well, and by whose lives 
 they defend so bravely. 
 
 No, my friends; such cannot be the intent nor the spirit 
 of the law. It cannot mean to disfranchise the great body 
 of our needy and worthy citizens for the benefit of a favored 
 and unneedy few. 
 
 No; it is broad enough, and liberal enough, and just 
 enough to reach the cases and meet the wants of hundreds, 
 and I may say thousands, of your industrious but suffering 
 fellow-citizens, with families and dependencies upon their 
 hands, who are willing to work, but can get nothing to do, 
 and for whom I feel and fear that, if all this labor is suffered 
 to take the other course, it will drift into the same old chan- 
 nels, and follow the same old ruts, and run by or beyond 
 those whom it ought, in all conscience and justice,,to benefit. 
 
 No government can long prosper or endure which makes a 
 practice of putting wp the public labor of its country by 
 public auction to the lowest bidder. 
 
 Neither this nor any other city can afl'ord to make a profit 
 oft* of the labor of its citizens, which it requires on its public 
 works, nor to put in the power of others to do so. 
 
 It will never in the end, nor at any other time, pay this or 
 any other city to engage in the business of constructing its 
 public buildings, carrying on its public works, or making its 
 public improvements at the expense of the labor of its peo- 
 ple, nor to sufter others to do so. 
 
 Neither this nor any other city can hope to build itself up, 
 and become great, upon the margins to be realized from the 
 toil of its citizens, either by its own agency or through the 
 agency of others. No city can ever hope to make a prosper- 
 ous and happy community by robbing its people of their 
 earnings, and stealing from them their living, either directly 
 or indirectly, under the disguise of frugality or the pretense 
 of economy. 
 
 I lay it down as the duty of all government, and of every 
 city, to so employ and reward the labor of its citizens as to 
 leave them a living profit, and afford them a saving margin; 
 and I declare that this duty* ought to address itself to, and
 
 31 
 
 impress itself upon, the good sense and sound judgment of 
 each and every citizen, be he rich or poor, in power or out 
 of power. 
 
 This proposition is the true principle — this proposition is 
 the correct interpretation— this proposition is the right prac- 
 tice — ^this course will set the proper example — it will establish 
 the only just rule — and will open up the road leading to better 
 times, and better places to the industrial classes in our midst, 
 in both public and private enterprises. 
 
 This action will bear courage to many a drooping heart. 
 It will carry bread to many a starving woman and child. It 
 will restore the family to many a broken and scattered home. 
 
 It will inflict no injury upon the city — it will do no wrong 
 to any one — but will give a clear conscience to this Commis- 
 sion, and do untold good to this people.
 
 UNIVERSITY OF CALIFORNIA, LOS ANGELES 
 
 THE UNIVERSITY LIBRARY 
 
 This book is DUE on the last date stamped below 
 
 Form 1,-1' 
 
 UKIVERSrrY OF 
 AT 
 LOS ANGELES 
 LIBRARY
 
 liD 
 
 4928 Murphy - 
 
 D3M9 - Argument of" 
 
 John Lubtrell 
 
 Murphy 
 
 HD 
 
 4928 
 
 D3M9
 
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