the jury that they could not reject any of the testimony of a witness who had committed deliberate perjury during the trial, if upon any point, however unimportant, he was corroborated by other credible evidence in the case, but that in such case they must accept and give it credit.

In Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 648, it was said: "It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard his entire testimony, except in so far as it has been corroborated by other credible evidence." Here the power of the jury to reject such evidence absolutely and without consideration is limited to that portion of it which is not corroborated. Such portion of it as is corroborated, the jury may not reject without consideration, but must weigh it in the light of the other evidence and attach to it such value as they think it entitled to under their power to judge of the credibility of witnesses generally. In State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084, the jury were instructed as follows: "If you believe that any witness who has testified in this case has willfully and intentionally testified falsely as to any material matter in this case, the jury have a right to disregard any or all of the testimony of such witness." It was held that the omission of the exception was error, the court following the rule of Cameron v. Wentworth, supra, and approved in Bonnie v. Earll, 12 Mont. 239, 29 Pac. 882. Section 3390 of the Code of Civil Procedure provides: "The jury, subject to the control of the court in the cases specified in this Code, are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, to be instructed by the court on all proper occasions.

3.

That a witness false in one part of his testimony is to be distrusted in others." The court, in Cameron v. Wentworth, supra, considered this provision somewhat and held that its meaning is that a witness whose testimony is willfully false in a material matter is to be distrusted as to the whole of his testimony, thus importing into the statute the meaning which the Legislature evidently intended should be given to it. There is serious doubt whether, in view of this provision, what is stated in Cameron v. Wentworth to be the undoubted rule, is not logically wrong. People v. Sprague, 53 Cal. 491; People v. Righetti, 66 Cal. 184, 4 Pac. 1063, 1185; White v. Disher, supra (Cal.) 7 Pac. 826; 2 Wigmore on Evidence, § 1012. Yet, since this phase of the matter has not been argued in this case, we shall not undertake to decide it, because the conclusion that it is wrong would necessitate the overruling of Cameron v. Wentworth and State v. De Wolfe, which we do not care to do until the question is raised directly and properly argued.

We do not think, however, that the instruction complained of has the import which counsel give to it. In the first place, it was impressed upon the jury that they were the exclusive judges of the credit to be given to the witnesses. They were told that they had a right to reject all the testimony of any witness who had been guilty of willful perjury, unless "on any point" his statement was corroborated. The jury must have understood from this that they were not bound to accept any part of the statement as true, but that they were still at liberty to weigh it and believe it or not as their judgment dictated. In effect the instruction told the jury that they might reject the testimony absolutely without consideration, unless on any point they found it corroborated, but any man of reasonable intelligence, reading it, would not understand that this implied that, if they found it corroborated in any respect, they should for that reason deem it credible and so treat it in making their finding. The only restriction cast upon them by this part of the instruction was that they were compelled to consider the testimony, but they were still left to give it such credit as they thought it entitled to. Manifestly, then, so understood, the instruction, while not technically correct under the cases cited, is not so substantially erroneous as to be deemed prejudicial to the defendant.

The instructions requested and refused were properly refused, because no one of them embodies a correct statement of the law. To illustrate: Instruction No. 6, after defining robbery in the words of the statute. reads as follows: "You are further instructed that one of the essential elements of robbery is the felonious taking of personal property; and in this case if you find that the defendant, Marion Lee, or Kail Yancey, or either of them did not take any property from the possession of the complaining witness, you must find the defendant not guilty." The defendant and Kail Yancey were informed against jointly. Each claimed a separate trial. This instruction would have told the jury that, if they found that either Marion Lee or Kail Yancey did not take any property from the possession of the complaining witness, the defendant, Marion Lee, should be found not guilty. Evidently Marion Lee was not entitled to an acquittal solely on the ground, however conclusively the fact may have been established, that Kail Yancey had not taken any prop erty from the possession of the complaining witness. The other paragraphs requested are open to the same or a similar objection. Let the judgment and order be affirmed. Affirmed.

HALLOWAY, J., concurs.

MILBURN, J. I respectfully dissent. I do not think that the defendant, Lee, had a

NESS OF LANGUAGE.

INDEFINITE

A statute will not be held invalid because of indefiniteness of the language employed, if the intent of the Legislature can be divined and given effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 266, 269.]

2. MASTER AND SERVANT-STATUTORY REGULATION-HOURS OF SERVICE.

Laws 1905, p. 105, c. 50, § 1, providing that "eight hours shall constitute a day's work' on municipal work, etc., in ore mills, smelters, and mines, and section 2, providing for the punishment of any one violating "any of the provisions of section 1," prohibits the employment of laborers more than eight hours a day, and does not contemplate punishing those who fail to work that long.

3. SAME-EFFECT OF STATUTE.

Laws 1905, p. 105, c. 50, § 1, fixing eight hours as a day's work on municipal work, etc., and in ore mills, smelters, and mines, and section 2, providing for the punishment of "every person, etc., violating any of the provisions of section 1, apply to both employers and employés.

4. CONSTITUTIONAL LAW-JUDICIAL REVIEW OF LEGISLATIVE POLICY.

It is no valid objection to Laws 1905, p. 105, c. 50, §§ 1, 2, prohibiting the employment of laborers on municipal work, etc., and in ore mills, smelters, and mines, for more than eight hours a day, that no exception is made for emergencies where life or property is in peril; it being a principle that ordinarily courts will not review the policy of legislation.

5. SAME EIGHT-HOUR LAW FREEDOM TO CONTRACT.

Laws 1905, p. 105, c. 50, §§ 1, 2, prohibiting the employment for more than eight hours per day of laborers on municipal work in ore mills, smelters, and mines, constitute a valid dxercise of police power, and do not infringe the freedom to contract, guarantied by Const. U. S. Amend. 14.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 170.] 6. SAME-EQUAL PROTECTION OF THE LAWS.

The equal protection of the laws guarantied by the United States Constitution is not denied by Laws 1905, p. 105, c. 50, §§ 1, 2, prohibiting the employment for more than eight hours a day of laborers on municipal work, etc., and in ore mills, smelters, and mines.

Appeal from District Court, Park County; Frank Henry, Judge.

The Livingston Concrete Building & Manufacturing Company was charged with violating the provisions of the eight-hour law. From a judgment sustaining defendant's demurrer to the information, the state appeals. Reversed and remanded.

Albert J. Galen, Atty. Gen., W. H. Poorman, Asst. Atty. Gen., E. M. Hall, Asst. Atty. Gen., and T. J. Walsh, for the State. Dan Yancey, for respondent.

HOLLOWAY, J. The Livingston Concrete Building & Manufacturing Company, a domestic corporation, was charged, by an information filed in the district court of Park county, with violating the provisions of chapter 50, p. 105, Laws 1905, known as the "Eighthour Law," in this: that the defendant, having a contract with the city of Livingston for the construction of certain cement sidewalks, crosswalks, and curbs, did unlawfully and willfully cause, suffer, and permit its servants and employés engaged in such work to work for a longer period than eight hours in a day. To this information the defendant interposed a general, demurrer, which was sustained. The state appeals from the judgment for the defendant on the demurrer to the information.

The information states facts sufficient to constitute a public offense, if chapter 50 above is a valid legislative enactment capable of being enforced; but on behalf of respondent it is urged (1) that the act is so indefinite as to be incapable of enforcement, and (2) that, even if sufficiently definite, the act is unconstitutional and void.

The provisions of chapter 50, above, are as follows:

"Section 1. A period of eight (8) hours shall constitute a day's work on all works or undertakings carried on or aided by any municipal, county or state government, and on all contracts let by them, and in mills and smelters for the treatment of ores, and in underground mines."

"Sec. 2. Every person, corporation, stock company or association of persons who violate any of the provisions of section one (1) of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by fine of not less than one hundred dollars ($100) nor more than five hundred ($500) dollars or by imprisonment in the county jail for not less than thirty days nor more than six months, or by both such fine and imprisonment."

1. It is said that the statute is too indefinite to be enforceable, in that (1) it cannot be determined whether it intends to impose the penalty prescribed upon the man who works less than eight hours in a day, or upon the man who works more than eight hours in a day, or upon both; (2) it cannot be determined whether it is intended to punish the employer, the employé, or both; and (3) it is so indefinite that, in fact, it cannot be said to forbid the employment of a laborer for more than eight hours in a day. While it may be conceded that the intention of the lawmakers might have been expressed in plainer terms, we cannot hold a solemn legislative enactment of no force or effect because of the indefinite language in which it is couched, unless we find ourselves unable to divine the purpose or intent of the Legislature. Hochheimer, Criminal Law (2d Ed.) § 28. For, after all, the function of the court

In

is to determine and make known, if possible, such purpose or intent; for the intention of the Legislature is the essence of the law. In Edwards v. Morton, 92 Tex. 152, 46 S. W. 792, it is said: "The intention of the Legislature in enacting a law is the law itself, and must be enforced when ascertained." Manhattan Co. v. Kaldenberg, 165 N. Y. 1, 58 N. E. 790, it is said: "In construing statutes the proper course is to start out and follow the true intent of the Legislature, and to adopt that sense which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the Legislature." 2 Lewis' Sutherland on Statutory Construction (2d Ed.) § 363. It is an elementary rule that effect must be given to a statute, if possible. If the statute is plain and unambiguous, so that no doubt can arise from the language employed as to its scope and meaning, then there is not any room for interpretation or construction, and the reading of the statute itself is a sufficient declaration of its meaning. "When the meaning of a statute is doubtful, the reason and purpose of its enactment, are to be taken into consideration in construing it and determining the intention of the Legislature. In other words, though a penal statute cannot be extended by construction, it should, if possible, receive such a construction as, when practically applied, will tend to suppress the evil which the Legislature intended to prohibit." Clark & Marshall on the Law of Crimes, p. 97; 2 Lewis' Sutherland on Statutory Construction (2d Ed.) §§ 528, 530.

(1) The history of labor legislation makes clear the evil to suppress which such statutes are enacted. It is the continuous employment of workingmen for such length of time as to imperil their lives or health that is sought to be avoided, and, in the interest of the general welfare of its citizens, the state undertakes to correct the evil as far as it may; or it may have been the purpose of the state to stamp with its approval the view now entertained by many, that, all things considered, the general welfare of workingmen, upon whom rests a portion of the burdens of government, will be best subserved if labor performed for eight hours continuously be taken as the measure of a full day's work; that the restriction of a day's work to that number of hours will so far promote the morality and improve the physical and intellectual condition of workingmen as to enable them the better to discharge the duties of citizenship. With these objects in view, it cannot be supposed that the Legislature intended to impose punishment upon every laborer engaged in any of the designated employments who fails to work for the full period of eight hours in every working day. But, on the other hand, it is apparent that the object and purpose in view were to prevent the employment of a laborer in any of such employments for more than eight hours

in a day; that number of hours of continuous labor being fixed by the statute as the maximum for a day's work.

(2) As it is the purpose of the statute to conserve the health and promote the happiness of the workingman-not to curtail his capacity to earn money or to set bounds upon the greed of his employer-the statute is written in terms broad enough to include within its inhibition both the employer and the employé. The language is: "Every person, corporation, stock company or association of persons who violates any of the provisions of section one of this act shall be guilty of a misdemeanor," etc. In Short v. Bullion-Beck & C. M. Co.. 20 Utah, 20, 57 Pac. 720, 45 L. R. A. 603, a similar statute of the state of Utah was considered, and it was there held that the statute applies both to the employer and employé, and that the protection which the state throws around the citizen by the enactment of such a law cannot be waived even by the employé, the person for whose benefit the statute is primarily enacted. We do not think that in this respect the statute is at all indefinite, but, on the contrary, the meaning of the language employed seems to be plain.

(3) It is said that the statute does not in terms prohibit the workingman from engaging in any of the designated employments for more than eight hours in a day, nor does it specifically prohibit the employer from hiring him to do so, and that, in fact, at most, the statute does not do more than define a working day. But the courts have not had difficulty in reaching an altogether different conclusion. The statute of Utah considered in Short v. Bullion-Beck & C. M. Co., above, provides in section 1 (Sess. Laws 1896, p. 219, c. 72) that the period of employment of workingmen in underground mines shall be eight hours per day. In section 2 the same language is employed with respect to mills and smelters for the treatment of ores. Section 3 provides: "Any person, body corporate, agent, manager or employer who shall violate any of the provisions of sections 1 and 2 of this act, shall be deemed guilty of a misdemeanor," etc. Respecting this statute, the court said: "When the plaintiff [employé] voluntarily performed services at the request of the defendant [employer] in the mill, and worked 12 hours, instead of 8 hours, there was a violation of the statute. * * * When the defendant [employer] requested the plaintiff to work 12 hours each day, and plaintiff complied with that request, the law was violated by the act of each party." In State v. Whitaker, 160 Mo. 59, 60 S. W. 1068, the Supreme Court of Missouri had under consideration a statute which requires that every electric street car, other than trail cars which are attached to motor cars, shall be provided during certain months of each year with a suitable screen which shall fully and completely protect the driver,

motorman, gripman, or other person guiding or directing the car from wind and storm. The penalty clause is as follows: "Any person, agent or officer of any association or corporation violating any of the provisions of this act shall be deemed guilty of a misdemeanor," etc. The court held that this statute is not so indefinite or uncertain in its meaning as to be inoperative, but that it imposes upon every company or association of persons operating electric cars the duty of providing the screens on their cars, and makes subject to the penalty prescribed any person who, owning or operating such cars, operates them without screens during the designated months of the year. The declared purpose of our statute is to impose a penalty upon every one who violates the provisions of section 1 of the act. And how may those provisions be violated? Manifestly in no other way than by the employé working more than eight hours in a day in any of the designated employments, or by the employer causing him to do so. The information in this case charges that the defendant company did unlawfully and willfully cause, suffer, and permit its servants to work for a longer period than eight hours in a day, and, if this be true, there was a clear violation of the statute by the defendant company; and it was no less a crime that its servants might also be equally guilty of the same offense.

In this connection it is said that the statute is exceedingly harsh and arbitrary, in that it limits the number of hours of labor, even though the employé is working by the hour and paid according to the number of hours he works. But, when the purpose of the law is kept in mind, we think this criticism cannot be made. The object of the law is to conserve the health and promote the happiness of the workingmen by such reasonable regulations as will save them in the one instance from overwork, and, in the other, afford them ample time for rest, recreation, and their physical and mental improvement; and therefore it is quite immaterial whether the labor is performed by the day or by the hour. Its object is to limit the number of hours of labor in a day so far as the state may do so. The same criticism might be made of many other public statutes. Every law is a restraint upon some one, and the question of its harshness is only a relative one, depending largely upon the disposition of the person restrained, or the character of the business in which he is engaged.

It is further urged that the statute is harsu, in that no provision is made for cases of emergency where life or property is in peril; and it may be conceded that the act would be more consonant with our ideas of a reasonable regulation if provisions had been made for such emergencies. But neither of these criticisms affects the validity of the

act. If it was the legislative will that no exception be made to the rule announced, the courts cannot say that a different policy should have been pursued. In fact, these objections only raise the question of legislative policy, with which the courts have nothing to do, unless it should be made to appear that in its operation the act would be so unreasonable that it could not be sup posed that the Legislature ever intended it to have such effect. 20 Enc. Law (2d Ed.). 599. Whether this statute in its operation will in fact prove to be harsh can only be determined by experience, and a probability that it will do so is not sufficient to condemn the act in advance.

We are not called upon in this connection to decide whether or not, in the event a workingman had practically completed his eight hours of work upon one of the designated employments, and some emergency should suddenly arise whereby life or property was placed in imminent danger, such employé might not prolong his labor beyond the allotted time without violating the spirit of this statute. That question is not presented in this case, and it is therefore not considered nor decided.

2. In prefacing his brief, counsel for respondent insists that the amendment to the Constitution of Montana, prescribing the hours of labor in works or undertakings carried on or aided by any municipal, county, or the state government, and on contracts let by them, and in mills and smelters for the treatment of ores and in underground mines. approved by popular vote at the general election of 1904, was not properly submitted to the people, and therefore was not properly adopted. And, while we do not agree with counsel in this contention, we do say that it is entirely immaterial whether we have such amendment in effect or not; for this question involves the construction of our statute with reference to the fourteenth amendment to the Constitution of the United States, and, if our statute violates such fourteenth amendment, it would not aid it if we had a constitutional provision authorizing it, for in that event our constitutional provision would have to give way to the paramount authority of the Constitution of the United States.

But inquiry as to the constitutionality of this statute ought to be deemed foreclosed, for every feature of it has been before the Supreme Court of the United States and passed upon by that tribunal. Treated from a purely technical standpoint, the statute embraces two classes of employés: (1) Those engaged in works and undertakings carried on or aided by any municipal, county, or the state povernment, or on contracts let by them; and (2) those engaged in mills or smelters for the treatment of ores, or in underground mines. A case involving a statute applying to an employé of the first class

arose in Kansas, where they have a statute similar to our own so far as applicable to that class of employés and in so far as it raises the question now under consideration. One Atkin had a contract with Kansas City, Kan., to provide the labor and materials and construct a brick pavement upon Quindaro Boulevard, a public street of that city, and, as such contractor, required one of his employés to work for 10 hours per day in prosecuting such work. Atkin was charged with violating the Kansas eight-hour law, was convicted, the judgment affirmed by the Supreme Court of Kansas (State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343), and by writ of error the case was taken to the Supreme Court of the United States, where every objection to the constitutionality of the Kansas statute was urged which is urged against our statute here. Counsel for plaintiff in error in the Atkin Case argued (1) that the statute of Kansas abridges the privileges of a citizen of the United States, and curtails his liberty with respect to his right to contract with the state or any of its subdivisions; (2) that the construction of the sidewalk in controversy was purely a local affair, with which the state has no concern; (3) that the statute denied to Atkin the equal protection of the laws; and (4) that it was conceded that the work was not dangerous to life, limb, or health, and that daily labor on it for 10 hours would not be injurious to the laborer in any way, and therefore the statute could not be upheld as a police regulation. With respect to the first of these contentions the court said: "If it be contended to be the right of every one to dispose of his labor upon such terms as he deems bestas undoubtedly it is-and that to make it a criminal offense for a contractor for public work to permit or require his employé to perform labor upon that work in excess of eight hours each day, is in derogation of the liberty both of employés and employer, it is sufficient to answer that no employé is entitled, of absolute right and as a part of his liberty, to perform labor for the state; and no contractor for public work can excuse a violation of his agreement with the state by doing that which the statute under which he proceeds distinctly and lawfully forbids him to do."

Counsel for respondent in this case cite Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197, 65 N. E. 885, 59 L. R. A. 775, 93 Am. St. Rep. 670, and People v. Coler. 166 N. Y. 1, 59 N. E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605, in support of the second contention above, which is also urged here. But these cases and several others were cited by counsel for plaintiff in error in the Atkin Case upon the same question, but without avail, and respecting that second contention the court said: "Such corporations are the creatures, mere political subdivisions, of the state for the purpose of exercising a part of its powers. They may exert only such pow

ers as are expressly granted to them, or such as may be necessarily implied from those granted. What they lawfully do of a public character is done under the sanction of the state. state. They are in every essential sense only auxiliaries of the state for the purposes of local government. * The improvement

of the boulevard in question was a work of which the state, if it had deemed it proper to do, could have taken immediate charge by its own agents; for it is one of the functions of government to provide public highways for the convenience and comfort of the people. Instead of undertaking that work directly, the state invested one of its governmental agencies with power to care for it. Whether done by the state directly or by one of its instrumentalities the work was of a public, not private, character." In re O'Brien, 29 Mont. 530, 75 Pac. 196; Wilcox v. Deer Lodge, 2 Mont. 574. The Supreme Court further said: "Equally without any foundation upon which to rest is the proposition that the Kansas statute denied to the defendant or to his employé the equal protection of the laws. The rule of conduct prescribed by it applies alike to all who contract to do work on behalf either of the state or of its municipal subdivisions, and alike to all employed to perform labor on such work."

With respect to the fourth contention the court said: "Some stress is laid on the fact, stipulated by the parties for the purposes of this case, that the work performed by defendant's employé is not dangerous to life, limb, or health, and that daily labor on it for 10 hours would not be injurious to him in any way. In the view we take of this case, such considerations are not controlling. We rest our decision upon the broad ground that the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not by it regulations, infringe the personal right of others; and that has not been done." The court disposed of the controversy by saying that the statute of Kansas is not inconsistent with the Constitution of the United States, and that, "indeed, its constitutionality is beyond all question." Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148. The decision in the Atkin Case is conclusive upon this court and decisive of the question presented here.

So far as the statute affects the other class that is, workingmen employed in mills and smelters for the treatment of ores and in underground mines-its constitutionality is settled beyond controversy. Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Cantwell v. Missouri (U. S.) 26 Sup. Ct. 749, 50 L. Ed. 329.

Finally, counsel for respondent says: "If the Legislature has the power to deprive cities and their contractors of the right to