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HARPER'S CITIZENS SERIES
Edited by William F. Willoughby
Professor of Government, and Jurisprudence
at Princeton University
A new and most important series defining and applying the
principles of such vital subjects as Labor Legislation, the Ad-
ministration of Justice, Public Service Regulation, Statis-
tics, American Diplomacy, and other themes of immediate
concern to every intelligent student and citizen. These books,
which are being written by leading authorities, are prepared
to meet the increasing needs of colleges, and they will also
meet requirements, not now supplied, of readers interested
in the most immediate subjects of our times.
PRINCIPLES OF LABOR LEGISLATION. By John R.
Commons, Professor of Political Economy, University of
Wisconsin, and John B. Andrews, Secretary of the Ameri-
can Association for Labor Legislation.
PRINCIPLES OF CONSTITUTIONAL GOVERNMENT.
By Frank J. Goodnow, President of the Johns Hopkins
University.
(IN PREPARATION)
PRINCIPLES OF AMERICAN DIPLOMACY. By John
Bassett Moore, Professor of International Law and
Diplomacy at Columbia University. Formerly Counselor
for the Department of State, Assistant Secretary of State,
etc., member of the Permanent Court at the Hague.
Enlarged and revised from Prof. Moore's "American Di-
plomacy."
HARFER & BROTHERS, NEW YORK
Established 1817
PRINCIPLES OF
LABOR LEGISLATION
BY
JOHN R. COMMONS, LL.D.
PROFESSOR OF POLITICAL ECONOMY, UNIVERSITY OF WISCONSIN
FORMER MEMBER INDUSTRIAL COMMISSION OF WISCONSIN AND
TJNrTED STATES COMMISSION ON INDUSTRIAL RELATIONS
AND
JOHN B. ANDREWS, PH.D.
8ecretary of the american association fob
labor legislation, editor of the "Ameri-
can LABOR LEGISLATION REVIEW"
PREPARED IN CO-OPERATION WITH
THE AMERICAN BUREAU OF
INDUSTRIAL RESEARCH
HARPER & BROTHERS PUBLISHERS
NEW YORK AND LONDON
PEOPLES OF LABOR LEGISLATION
a k„ Haroer & Brothers
Published February, 1916
L-Q
CONTENTS
PAGB
Chapter I: THE BASIS OF LABOR LAW i
i. The Labor Contract i
(i) Industry 2
(2) Labor Law 3
(3) Politics 4
2. Individual Rights 5
3. Due Process of Law 9
(1) Public Powers 10
a. Power to Preserve Peace and Execute the
Laws 10
b. The Taxing Power n
c. Guardianship 1 1
d. Eminent Domain 12
e. Proprietorship 13
f. The Police Power 13
g. Commerce Power and Federal Powers . . 15
h. Police Power and the Constitution ... 15
(2) Public Authorities 18
a. The Executive 20
b. The Legislature 21
c. The Judiciary 22
d. The Administration 23
(3) Principles 24
a. Public Benefit 24
b. Equal Protection of the Laws 28
Chapter II: INDIVIDUAL BARGAINING 35
1. The Laborer as Debtor 35
(1) Servile Labor 36
a. Slavery 36
b. Serfdom 37
c. Peonage 37
(2) From Master and Servant to Employer and Employee 40
a. Indentured Service 41
b. Apprenticeship 41
c. Contract Labor 42
d. Padrone System 46
CONTENTS
PAGE
e. Imprisonment for Debt 47
f. Wage Exemption 47
g. Homestead Exemption 48
h. Assignment of Wages 49
2. The Laborer as Creditor 50
(1) Time of Payment 5°
(2) Place of Payment 5 2
(3) Basis of Payment 53
(4) Medium of Payment 53
a. "Living In" 53
b. Company Houses and Labor Camps ... 54
c. Company Stores 55
(5) Deductions 5 6
(6) Mechanics' Liens and Wage Preference .... 60
3. The Laborer as Tenant 61
(1) Classes of Agricultural Workers 61
a. Hired Laborers 62
b. Tenants 63
c. "Croppers" 63
(2) Agricultural Labor Legislation 65
4. The Laborer as Competitor 68
(1) Protection against Immigrants 69
a. Induced Immigration 70
b. Exclusion of Orientals 74
c. The Literacy Test 76
(2) Protection against Convict Labor 77
5. Legal Aid and Industrial Courts 80
(1) Private and Public Legal Aid 81
(2) Industrial Courts 86
Chapter III: COLLECTIVE BARGAINING 91
1. The Law of Conspiracy 91
(1) Origins of Collective Bargaining 9 2
(2) Doctrine of Conspiracy 95
(3) Court Decisions IGI
a. Strikes IOX
b. Boycotts Io6
c. Picketing Io8
(4) Restrictions on Employers and Employees . . . 112
(5) Justification of True Collective Bargaining . . . 115
(6) Damage Suits I2 °
(7) English Law of Labor Disputes 122
2. Mediation by Government I2 4
(1) Definition of Terms I2 5
(2) Foreign Countries I2 7
(3) United States J 3 X
a. State Legislation l i l
b. Federal Legislation *33
CONTENTS
PACE
3. Coercion by Government 139
(1) Restrictions on Strikes and Lockouts 139
(2) Development of Coercive Intervention 141
a. England 141
b. Australasia 142
c. Canada and the United States 156
4. Unions of Government Employees 160
(1) Recognition of Unions 161
(2) Cooperative Employment 166
Chapter IV: THE MINIMUM WAGE 167
1. Economic Basis 168
(1) Low Wage Scale 168
(2) Economic Weakness of Low-Paid Workers . . . 169
2. Historical Development 171
(1) Australasia 171
(2) Great Britain 174
(3) The United States 176
3. Standards 179
(1) Australia 179
(2) Great Britain 180
(3) The United States 180
a. Definition of the Living Wage 180
b. Wage Losses from Unemployment . . . . 182
c. Profits of the Business 182
d. Subr-tandard Workers 184
4. Methods of Operation 185
(1) Flat Rate Laws 185
(2) Wage Board Laws 186
5. Results 190
(1) Changes in Wage Rates 190
(2) Changes in Wages above the Minimum .... 192
(3) Effect on Unemployment 192
(4) Effect on Industry 193
(5) Effect on Trade Unionism 194
(6) Effect on Efficiency 195
6. Constitutionality 196
Chapter V: HOURS OF LABOR 200
1. Maximum Hours 204
(1) Children 204
(2) Women 208
(3) Men 225
a. Public Work 225
b. Private Employments: (a) Transportation;
(b) Mines and Tunnels; (c) Factories and
Workshops 229
c. Constitutionality 237
CONTENTS
PAGE
2. Rest Periods 246
(1) Daily Rest and Meal Times 246
(2) Night Work 248
(3) Saturday and Legal Holidays 251
(4) One Day of Rest in Seven 253
(5) Annual Vacations 258
Chapter VI: UNEMPLOYMENT 261
1. Regulation of Private Employment Offices .... 264
(1) Abuses of Private Agencies 266
(2) Restrictive Legislation 267
2. Public Employment Exchanges 270
(1) State and Municipal Offices 270
(2) Federal Activity 276
(3) European National Systems 278
3. Systematic Distribution of Public Work 283
(1) Emergency Work 284
(2) Adjustment of Regular Work 287
4. Regularization of Industry 290
(1) The Liverpool Dock Scheme 292
(2) Recent Progress 293
Chapter VII: SAFETY AND HEALTH 295
1. Reporting 297
(1) Accidents 298
(2) Occupational Diseases 3°2
2. Prohibition 3°4
(1) Exclusion of Persons 305
a. Children: (a) Age Requirements; (b) Physi-
cal Requirements; (c) Educational Re-
quirements; (d) Special Problems in En-
forcing Restrictions on Child Labor . . 305
b. Women: (a) Prohibited Employments;
(b) Childbirth Protection 317
c. Men: (a) Physical Qualifications; (b) Tech-
nical Qualifications 320
(2) Prohibition of Substances or Instruments .... 325
3. Regulation 3 2 7
(1) Factories and Workshops 3 2 7
a. Machine Guards 328
b. Protection against Fire 330
c. Lighting, Heating, and Ventilation .... 33 r
d. Seats, Toilets, and Dressing-Rooms . . . 334
e. Protection from Infectious Disease . . . 335
f. Tenement House Manufacture 33^
(2) Mines and Tunnels 33^
a. Mining 339
b. Work in Compressed Air :...,,, 341
CONTENTS
PAGE
(3) Transportation 342
a. Navigation 342
b. Railroads and Streetcars 344
(4) Development of Standards 349
(1) Defects of Early Legislation 349
(2) The Method of Administrative Orders . . 352
Chapter VIII: SOCIAL INSURANCE 354
1. Industrial Accident Insurance 356
(1) Rules of Employers' Liability 358
a. Duties of the Employer 358
b. Burden of Occupational Risks 358
c. Fellow Servant Rule 359
d. Contributory Negligence 360
e. Assumption of Risk 361
(2) Beginnings of Industrial Accident Insurance . . . 362
a. German System 363
b. Methods in Other Countries 366
c. Inclusion of Occupational Diseases . . . 367
(3) Compensation Legislation in the United States . 368
a. Scale of Compensation: (a) Medical Attend-
ance; (b) Waiting Period; (c) Compensa-
tion for Total Disability; (d) Compensa-
tion for Partial Disability; (e) Compensa-
tion for Death 372
b. Scope of Laws: (a) Employments Included;
(b) Injuries Included; (c) Occupational
Diseases 378
c. Method of Administration 381
d. Security of Payment 382
2. Health Insurance 385
(1) Early Steps in Health Insurance 386
(2) Compulsory Health Insurance 387
(3) Maternity Insurance 393
(4) Need in the United States 394
3. Old Age and Invalidity Insurance 397
(1) Unassisted Old Age Insurance 398
(2) Assisted State Plans 399
(3) Compulsory Systems 400
(4) Straight Pensions 402
(5) The Problem in the United States 404
4. Widows' and Orphans' Insurance 406
(1) Voluntary Life Insurance 406
(2) Compulsory Insurance 407
(3) Mothers' Pensions 408
5. Unemployment Insurance 409
(1) Voluntary Out-of-Work Benefits 409
CONTENTS
PAGE
(2) The Ghent System 410
(3) Compulsory Unemployment Insurance 410
Chapter IX: ADMINISTRATION 415
1. The Executive 416
2. The Legislature 419
3. The Judiciary 422
4. The Industrial Commission 430
(1) Administrative Investigations 430
(2) Representation of Interests 443
(3) Civil Service 450
(4) Bill Drafting 452
5. Penalties and Prosecutions 454
6. Cooperation by Pressure 462
Select Critical Bibliography 465
Table of Cases Cited 489
Index . 497
PREFATORY NOTE FOR SECOND EDITION
The dynamic character of labor legislation is brought forcefully to
mind in considering the developments of the eight short months which
have elapsed since the first edition of the "Principles" was published.
Three laws of the first importance have been passed by the Federal
Government. The workmen's compensation act replaces "the worst
compensation law in the world" by a model measure, under which, for
the first time, all civil employees of the United States receive suitable
compensation for work injuries. The law embodies the best provisions
of European experience and of the improved legislation found in such
American states as California, Kentucky, Massachusetts, New York,
Ohio, and Wisconsin.
Federal power over interstate commerce has been utilized for the reduc-
tion of child labor. Manufacturing establishments and canneries em-
ploying children under fourteen, or children under sixteen at night, or
more than eight hours daily, together with mines and quarries employing
children under sixteen, may not make interstate shipment of their
products.
A noteworthy addition has been made to hour legislation and a prece-
dent set for the minimum wage for men in private employments by the
federal law fixing eight hours as the standard work day for railroad em-
ployees and providing that no less pay shall be given for the shorter
unit than for the former ten-hour day.
Eleven state legislatures have contributed their quota of new legislation
and amendments by the passage of nearly a hundred statutes. Ken-
tucky has joined the ranks of states having workmen's compensation
laws with an act having many points of resemblance to the Massa-
chusetts law.
That further new lines of action are close at hand is indicated by the
fact that in California and Massachusetts commissions on social in-
surance will report to their state legislatures in 191 7.
A few minor corrections have been made in the text of this edition. For
additional details of the statutes enacted since 1915, the annual "Review
of Labor Legislation" published by the American Association for Labor
Legislation will be found serviceable. This "Review," it may be added,
has been completely reorganized so as to conform to the arrangement of
topics in "Principles of Labor Legislation." Readers and students,
therefore, will be able year by year to supplement the principles discussed
in this book by the detailed exemplifications in the yearly "Review of
Labor Legislation."
October, igi6.
EDITOR'S INTRODUCTION
The aim of the Harper's Citizen's Series is to supply a series
of volumes which will serve both as text-books for college
and university class-room use, and as interesting and instruc-
tive treatises for the general reader. The criteria of a good
text-book are, indeed, not different from those of a satis-
factory treatise for the general reader. In both the aim is
to present in clear and logical form the essential principles
which furnish the basis for, and give scientific consistency
and unity to, the subject which is treated.
In this series the publishers, editors, and authors will co-
operate in the preparation of a number of volumes which,
while not fixed in number, will constitute a unity by reason
of their harmony of purpose and their similarity in mode
of treatment.
The general purpose of the volumes is indicated by the title
"Citizen's Series." They will each discuss a subject, an ade-
quate knowledge of which is indispensable to good citizenship ;
— a topic, therefore, which needs to be taught in our schools
and universities, and which should be interesting to all per-
sons who seek to understand the social, economic, and politi-
cal phenomena by which they are surrounded and the prin-
ciples which explain the conditions that so largely determine
the welfare of every member of an organized community.
The mode of treatment which these topics will receive is
indicated by the employment of the word "Principles" in
the title of each volume. That is, the aim of each volume will
be to reveal the fundamental principles which lie at the basis
of the topic which is treated, and thus to provide the student
or general reader with the instruction and information which
will enable him not only to understand the facts which the
volumes themselves furnish, but to appreciate the further
EDITOR'S INTRODUCTION
facts which his other reading and e very-day experiences will
necessarily present to him. It is further intended that the
topics will be so treated that the student or reader will be
stimulated to continue his quest for knowledge and under-
standing beyond the class-room and outside the covers of
books. In order that this orientation of each field may be
satisfactorily secured, and this indispensable stimulus to fur-
ther study supplied, care will be taken that the discussion of
each subject will be by a scholar eminent in the field within
which his subject lies.
W. F. WlLLOUGHBY.
PREFACE
The growing importance of labor legislation as a subject
for careful study is perhaps best illustrated by the revolution-
ary adoption within five years of workmen's compensation for
industrial accidents in two-thirds of the United States. Dur-
ing the same brief period eleven of these states enacted mini-
mum wage laws. There appeared also, for the first time in
this country, protective regulations as far-reaching in possi-
bilities as the prohibition of the use of an industrial poison
by the federal taxing power; the regulation in several states
of seven-day labor; the beginnings of effective prohibition of
night work following closely the well-nigh universal spread
of laws placing maximum limits upon the length of the work-
ing day of women; and, even more significant, the adoption
by several states of the industrial commission form of adminis-
tration.
With its rapid development, the mere extent and multi-
plicity of labor legislation present to the citizen who would
keep informed a task that is truly formidable. At the be-
ginning of 1 9 14 the federal Department of Labor assembled
and published the labor laws of the United States in two
bulky volumes totaling more than twenty -four hundred
closely printed pages. The legislatures of the following two
years added to this list no fewer than five hundred new labor
laws. The laws, moreover, are growing in complexity as well
as in length and number, and to the maze of statutes is added
a lengthening list of administrative orders and of judicial de-
cisions. Obviously, only a few specialists can hope to keep pace
with all the details of this growth. As in all other sciences, it
is necessary, finally, in the science of legislation to formulate
fundamental principles which may be generally applied.
This book, therefore, is written from the standpoint of the
citizen and the student rather than from that of the lawyer.
With regard to each of the main phases of the modern labor
PREFACE
problem — individual and collective bargaining, wages, hours,
unemployment, safety and health, social insurance, and ad-
ministration — it endeavors not so much to expound technical
questions of legality as to sketch the historical background of
the various labor problems, indicate the nature and extent of
each, and describe the legislative remedies which have been
applied. Throughout it is the principles of labor law, not the
details which may change from legislature to legislature, which
are emphasized. And this procedure has been followed be-
cause in a democracy it is the people themselves whose col-
lective opinion finally determines what the laws shall be and
how effectively they shall be enforced.
The work is intended to be both critical and constructive —
critical in that it points out the good and bad features of the
statutes, constructive in that it shows how, in the light of
experience, the good is being strengthened and the bad
remedied. Finally, it is in full recognition that a law is
really a law only to the extent to which it is enforced that
each chapter emphasizes efficient administration and that the
closing chapter is entirely devoted to this complex and all-
important problem.
In assembling facts and preparing chapters, assistance has
been given by many valued co-workers, including E. E. Witte,
Olin Ingraham, David J. Saposs, Anna Kalet, Margarett A.
Hobbs, and the following students: W. H. Burhop, Mark
Greene, Ora Harnish, A. P. Haake, Harry Jerome, Gladys
Owen, and Stewart Schrimshaw. For painstaking reading of
manuscript and proof, acknowledgment is due to Jean M.
Douglas and Solon De Leon. Our further thanks are extended
to the following persons, to whom various chapters were sub-
mitted and who have given valuable criticisms and suggestions
for improvement: Richard T. Ely and H. W. Ballantine of
the University of Wisconsin, Ernst Freund of Chicago Uni-
versity, Edwin V. O'Hara of the Oregon Industrial Welfare
Commission, Thomas I. Parkinson and Joseph P. Chamber-
lain of Columbia University, Louis D. Brandeis of Boston,
and Arthur N. Holcombe and Frank W. Taussig of Harvard
University. JoHN R Commons
John B. Andrews
January, igi6
PRINCIPLES OF
LABOR LEGISLATION
CHAPTER I
THE BASIS OF LABOR LAW
Modern industry is mainly a matter of buying and selling.
Scarcely any person lives on the things which he alone pro-
duces with his own property. Formerly the protection of his
person and his physical property was the principal part of the
law. Now the protection of that intangible property which
arises through buying and selling and is defined in the law of
contract, occupies the attention of lawmakers, courts, and
the administrative authorities.
i. The Labor Contract
The labor contract is one of several kinds of contract, which
until recently has differed from the others but little in the
eyes of the law. Like the others it originates in an agreement,
implies a promise, creates rights and duties, and is enforced,
if need be, by the power of the state.
But the labor contract, in course of time, has come to be
recognized as something peculiar. When a bushel of wheat
is bought and sold, when a factory or farm is transferred,
when a banker receives deposits or lends his credit, when a
corporation issues stocks or bonds, the rights and duties created
thereby can be fulfilled by delivering something external and
PRINCIPLES OF LABOR LEGLSLATION
unhuman. But when a laborer agrees to work he must deliver
himself Eor a time into the control of another. lie earns his
living, not by working upon his own property, but by working
upon the property of another, and by accepting all the con-
ditions he finds there. And, if he has no property of his own
sufficient to fall back upon, he is under an imperious necessity
of immediately agreeing with somebody who has. This pe-
culiar relation between a propertylcss seller of himself, on the
one hand, and a propertied buyer on the other, coupled as it
is with equal suffrage of both in the politics of the country,
has gradually acquired recognition as something sufficiently
important for the government to take notice of. While the
courts and law books have dealt with the labor contract as
similar to other contracts, legislation goes behind the legal
face of things and looks at the bargaining power which pre-
cedes the contract. It distinguishes the price bargain, the
investment bargain, the real-estate bargain, and others, from
the wage bargain. The former are dealings between property-
owners. The latter is a bargain which involves not only
wages, but also hours of labor, speed and fatigue, safety and
health, accident and disease, even life itself. Unemployment
is failure to make such a bargain; immigration, child labor,
education, prison labor, collective bargaining, and so on, are
conditions which determine the bargaining power of the
laborer. Every topic in labor legislation is a phase of the
wage bargain, and it is because a large class of people have
come to depend permanently, not on their property or re-
sources, but on these bargains with property-owners, that
labor legislation has significance.
This spectacle of the free laborer, without property but with
the ballot, bargaining for his livelihood but electing his rulers,
is something new and unaccustomed, measured by the life of
nations. It has come about through what may be called in-
dustrial, legal, and political changes.
(i) Industry
Scarcely a generation has passed since the natural resources
of the country were sufficiently free to permit people without
THE BASIS OF LABOR LAW 3
property to acquire ownership merely by labor. The home-
stead laws, culminating in 1S62, may be looked upon as early
labor legislation, for they were intended to provide "free
land" by preventing the public domain from falling into the
hands of capitalists and slave-owners and so to furnish an out-
let to laborers from the East. Workmen who could not be-
come farmers or miners could become tradesmen and inde-
pendent mechanics in the new towns. But since the lands
have been closed by occupation, and their values have in-
creased, money or credit is required to purchase them. This
means that laborers without capital must seek capitalists to
employ them.
In 1869 the first Pacific railway was completed, and im-
mediately Chinese coolies made their appearance in Massa-
chusetts as strike-breakers, and the manufactured products of
Massachusetts contributed to unemployment in California.
The railway and steamship have made labor almost as mov-
able as capital, and any bargaining advantage which wage-
earners have in one section of the country is quickly levelled
by migration.
Huge factories and corporations were almost unknown a
generation ago, but now the United States Steel Corporation
has some 200,000 employees, and single establishments have
thousands and ten thousands. The special bargaining power
of skilled mechanics is levelled down to that of the lesser
skilled.
Thus the three industrial factors of closed land, labor
mobility, and large scale production have produced a class
permanently dependent on wages.
(2) Labor Law
When land and natural resources were free, labor was not
always free. Slave labor in the South, indentured labor and
apprenticeship in the North and South, contract labor from
abroad, were based on legal devices by which the laborer
could be kept from running away. Not until the enactment
of the thirteenth amendment, following the Civil War, did
slavery and involuntary servitude, except as a punishment
4 PRINCIPLES OF LABOR LEGISLATION
for crime, become everywhere illegal. 1 The labor contract
henceforth has its peculiar significance. Although in theory
it is like other contracts, yet it cannot in fact be enforced.
The laborer cannot sell himself into slavery or into involun-
tary servitude. He retains the right to change his mind, to
quit work, to run away. Certain other contracts can, in the
absence of any other sufficient remedy, be enforced by the
courts by compelling "specific performance." 2 But specific
performance of the labor contract is involuntary servitude.
Business contracts, if violated, are ground for damages which
the court orders paid even to the extent of talcing all of the
business property of the debtor. The labor contract also, if
violated, is ground for damages, but for the court to order
damages paid out of labor property would be to order the
laborer to work out the debt. This is involuntary servitude.
Hence the employer is left with the empty remedy of bringing
suit against a propertyless man. He can protect himself by
making contracts which he also can terminate at any time
by discharging the workman without notice.
Thus the labor contract becomes, in effect, a new contract
every day and hour. It is a continuous process of wage bar-
gaining. It carries no effective rights and duties for the
future and is as insecure as it is free. After land has ceased
to be free the laborer becomes free. Closed resources and
freedom with insecurity produce in time a permanent class
of wage-earners.
(j) Politics
In the northern states the suffrage was granted to all male
wage-earners during the - years preceding 1845, by removing
the property qualifications. 3 This was as much as forty to
Constitution of the United States, Amendments, Art. XIII:
"Sec. 1. Neither slavery nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly con-
victed, shall exist within the United States, or any place subject to
their jurisdiction.
"Sec. 2. Congress shall have power to enforce this article by ap-
propriate legislation."
The exception in the case of the seaman's contract will be noted later.
2 See Andrews, American Law, 1908, Vol. I, pp. 582, 1586.
3 Rhode Island was the only northern state that retained the property
qualification,
THE BASIS OF LABOR LAW 5
sixty years in advance of other nations, and was, in fact, the
first experiment in the world's history of universal admission
of the propertyless laborer to an equal share in government
with the propertied capitalist or employer. A similar experi-
ment was made in the South after the slaves were freed by
war. Henceforth the laborer not only shares in electing the
legislature that makes the law, but he shares in selecting the
judges who interpret it and the governors, factory inspectors,
sheriffs, marshals and constables who enforce it. The labor
contract and the wage bargain become as much a question of
the control of politics as they are of large-scale industry and
the mobility of labor. Wherever property-owners or em-
ployers can deprive the laborer of his suffrage or can control
his vote, there they can more effectively control his bargaining
power. He may be disfranchised, as in the South, or intimi-
dated, as in some towns controlled directly by corporations, or
manipulated and bought, as in towns controlled indirectly
through the political "machine." So the struggle for the suf-
frage, begun ninety years ago in the North, renewed in the
struggle of twenty years ago for the secret ballot, and kept up
in the struggle against political corruption, is both a cause
and a consequence of the appearance of wage-earners as a
class in modern industry.
2. Individual Rights
Federal and state constitutions contain the fundamental
laws and create the authorities of government with the power
to interpret, amend, and enforce them. The Declaration of
Independence and most of the state constitutions declare that
all men are created equal. Prior to the Civil War certain of
the southern states declared only that all freemen are equal.
Those constitutions were afterward changed to read all men
are equal. Some constitutions say that they are "equally free
and independent." If they are equal, they have equal rights.
Some of these rights are declared to be natural, essential, in-
defeasible, inalienable. Among the inalienable rights men-
tioned in different constitutions are life, liberty, the pursuit
of happiness, acquiring, possessing and protecting property,
6 PRINCIPLES OF LABOR LEGISLATION
reputation, and enjoyment of the gains or proceeds of a man's
own labor. 1
The federal constitution guarantees certain means for pro-
tecting these rights, and prohibits certain measures that vio-
late or impair them. Among the protective measures are the
writ of habeas corpus, trial by jury, a republican form of gov-
ernment, freedom of speech or of the press, the right peaceably
to assemble and to petition the government for a redress of
grievances, the right to keep and bear arms, security against
unreasonable search and seizure of persons, of houses, papers
or effects, indictment by a grand jury, speedy and public
trial, compensation for property taken for public use, due
process of law, equal protection of the laws. Among the pro-
hibited measures are bills of attainder, ex post facto laws and
laws impairing the obligation of contracts. Finally, the
enunciation of certain rights cannot be construed to deny or
disparage others retained by the people. These restrictions,
however, with the exception of those insuring equal protection
of the laws and the obligation of contracts, are binding on
Congress and not on the states. The fourteenth amendment
prohibits any state from denying due process of law and equal
protection of the laws, but under the decisions of the courts
this protection does not extend to other rights guaranteed in
the early amendments to the constitution, which, as has just
been said, are protected only against infringement by Congress. 2
'The Declaration of Independence is "read into" the constitutions,
where it says: "We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain
inalienable rights, that among these are life, liberty, and the pursuit of
happiness." Twenty-eight state constitutions declare that men are
naturally equal. Five restricted this to "freemen" before the Civil
War and afterward changed the phrase (Kansas, 1858). ^ Three states
assert the equality of all men framing a "social compact." Thirty-five
states have clauses embodying the doctrine of natural rights. The
right of acquiring property, by which contract is understood, is claimed
as an inalienable natural right by twenty-six states. Three states in-
clude the right to reputation, which may be considered as a kind of
property. The enjoyment of the gains of a man's own industry, or
of the proceeds of his labor, is an inalienable right in two states. Kansas
specifies the right to control over one's own person. Montana, when
mentioning the right to seek and obtain safety and happiness, adds the
proviso "in all lawful things."
2 Willoughby, Constitutional Law of the United States, 19 10, Vol. I,
pp. 175 ff.
THE BASIS OF LABOR LAW 7
If certain rights, such as life, liberty, and property, are strict-
ly and literally "inalienable," then they cannot either be
given away by any person or taken away by any other person
or by government, either by coercion or by persuasion, either
by violence or by voluntary sale and compensation. If the
owner sells them, they are worthless to the buyer, because he
gets no title. Of course, it follows that these rights were
never considered strictly "inalienable." Only an impossible
anarchist could believe this. The fourteenth amendment
partly clears the atmosphere. "Privileges and immunities"
are substituted for inalienable rights. Life, liberty and prop-
erty can be taken provided it be done according to "due proc-
ess of law." "Equality" becomes "equal protection of the
laws." In other words, rights become "relative," not "abso-
lute," alienable but protected.
But, if rights are relative, then their meanings and defini-
tions are liable to change when the relationships to which
they refer happen to change. The rights of property are de-
fined in several constitutions as the right of acquiring, possess-
ing and protecting property. These were the significant points
in the definition when people were isolated, as they were in
colonial and pioneer times. At that stage, their main con-
cern was in getting and holding physical property, like lands,
crops or even human beings, if the definition of property in-
cluded slaves. But in modern society, based, as it is, mainly
on buying and selling, the right to withhold property from
others becomes significant. It is this that protects the in-
dividual in his power of bargaining — his power, protected by
law, to hold back and wait until an agreement can be reached
upon the exchange value of the property before permitting
others to take it or use it.
This right to withhold property is like the laborer's right
to withhold his labor, by refusing to work or by quitting
work. But in the case of the laborer this is also "liberty" —
a "personal" right rather than a "property" right. It is his
right to withhold his services from the use of others until
their value can be agreed upon. This is the legal basis of his
wage bargain.
Hence property and liberty change places and merge their
meanings when industry changes from the agricultural stage
8 PRINCIPLES OF LABOR LEGISLATION
of production for self to the modern stage of bargaining with
others. The wage-earner's "property" becomes his right to
seek an employer and to acquire property in the form of
wages; his property in the sense of liberty is his right to
refuse work or to quit work if the conditions are not satis-
factory. The employer's "property" is, in part, his right to
seek laborers and acquire their services; his property, in the
sense of "liberty," is his right to run his business in his own
way, that is, in part, to withhold employment or to dis-
charge the laborer if the bargain is unsatisfactory.
These definitions of property rights are evidently quite dif-
ferent from the older ideas of property in physical things, such
as lands, buildings, machinery or slaves. They signify rights
of buying and selling, of access to a market. They are "in-
tangible" property, and not "tangible." They are like the
"good will" of a business. They are defined as "property"
because they are necessary to give to things and sendees that
value in exchange which in modern industry depends as much
on selling them as it does on "producing" them.
Only within the past half-century have courts and legis-
latures distinguished and protected such intangible property
as good will, trade marks and trade names, based on the
right of access to a commodity market, and still more re-
cently has "access to a labor market" been treated in effect
as a property right of both the laborer and the employer, in
addition to a personal right. 1 Not merely the contract after
it is made is property, but the right to be unhindered by
others in order to make a labor contract is a property right.
It is "intangible" property both of the laborer who seeks em-
ployers and of the employer who seeks laborers. It is in-
tangible because it is merely the act of offering and yet with-
holding services or commodities. It is property and becomes
capital in the sense that it is the power of getting value in
exchange. Just as the employer's property is both his phys-
ical factory and his intangible business, so the laborer's
property is both his physical body and his intangible labor.
This "intangible" property has come to mean a part of what
1 See also Willoughby, Constitutional Law, Vol. II, p. 872; Hall,
Constitutional Law, 1914, pp. 134. !35; "Doctrine of Conspiracy,"
p. 96.
THE BASIS OF LABOR LAW 9
was formerly known as personal liberty. It is that kind of
liberty that has money value. It gives value alike to the
laborer's labor and the employer's business.
If meanings of property and liberty change with changes
in industry, so does the meaning of equality. Equality for
the colonist and the pioneer signified mainly equal right to
acquire property through labor — now it signifies equal right
to acquire it through bargaining. But where bargaining power
on the one side is power to withhold access to physical prop-
erty and the necessaries of life, and on the other side is only
power to withhold labor by doing without those necessaries,
then equality of rights may signify inequality of bargaining
power. The gradual recognition of inequalities of waiting
power has required changes to be made in the legal means of
protecting equality, and these changes underlie the history
of labor legislation. They occur within limits prescribed by
"due process of law."
3. Due Process of Law
The constitutions, which declare private rights inalienable,
yet provide methods and standards both to abridge them and
to protect them. A right has two sides. It is a right of one
and a duty of another, or of all others. One person signs a
note agreeing to pay $20 to another person. The second per-
son has a right to receive $20 — the first is under a duty to pay
it. One person owns a piece of land. He has a right to use
it as he pleases — all other persons are under the duty to keep
off and let him alone. To protect the rights of one is to en-
force the duties of others. If a right of one is abridged or
reduced, the corresponding duty of another or of all others
is reduced. If a debt is reduced from $20 to $10, both the
right to receive and the duty to pay are reduced. If a
person's right to use his land as he pleases is restricted, then
the corresponding duties of others are reduced. On the other
hand, a person's duties are just so much subtracted from
the total of his rights, and so to reduce the amount of his
duties is to enlarge the total amount of his rights. To reduce
the rights of one is to enlarge the corresponding rights of others.
Here must be noted the distinction already made between
io PRINCIPLES OF LABOR LEGISLATION
the labor contract and the wage bargain. The two may be
diametrically opposed. From the standpoint of the wage
bargain, if an employer's right to require a woman to work
unlimited hours is reduced, then the woman's duty is conse-
quently reduced and her rights enlarged. But, from the
standpoint of the labor contract, she loses the right to con-
tract for unlimited hours. This may be a mere fictitious
right for her, existing only in the eyes of the law, whereas it
is in reality the right of the employer to compel her to work.
From the legal standpoint her rights arc abridged — from the
economic standpoint they are enlarged. Likewise, from the
legal standpoint the employer's duty is reduced when her
hours of service are reduced. From the economic standpoint
his duty may be increased, if her bargaining power is in-
creased. It is this contradiction between the labor contract
and the wage bargain that labor legislation attempts to
reconcile. '
The state exercises the great and sovereign power of en-
larging and abridging rights and duties without consent of
the parties. This power is intended, under our constitutions,
to be safeguarded most minutely and accurately. The safe-
guards are developed with reference to an all-inclusive term,
"due process of law."
Due process of law, along with the provisions of the con-
stitutions, determines both the substance and the procedure
of government in three principal aspects: first, the public
powers, or the powers of government under which authority
is granted to protect, enlarge or abridge rights and duties;
second, the public authorities, or the powers of officials acting
within that authority; and third, the principles, standards or
"maxims" that determine the limits beyond which public
powers and public authorities shall not go. Each of these
aspects affects labor legislation.
(i) Public Powers
a. Power to Preserve Peace and Execute the Laws. Govern-
ment exists, first of all, to enforce the duty to keep the peace.
1 See "Public Benefit," p. 24; "Equal Protection of the Laws," p. 28;
"Maximum Hours, Women," p. 22 1-22 \
THE BASIS OF LABOR LAW n
To do this it may use force. It is the custodian of physi-
cal coercion and the authority that may threaten violence.
Only in actual self-defense or in extreme urgency has an in-
dividual the right to resort to violence. He must confine
himself to persuasion in every other case. Groups of individ-
uals may go on strike, may get together for free discussion,
or for agitation and joint action, but they must assemble and
act peaceably. Even though they suffer the greatest in-
justice they must not go beyond the duty of obedience to
law and order. The authorization, or "power," of the state
to use violence in order to execute the laws, to protect person
and property, to punish for crime, is its first and highest justi-
fication, without which no other power could exist, and all
government would be impossible. This is its exclusive au-
thority, and it cannot compromise the question or permit
private violence, except at the peril of its own existence.
Under the justification of preserving the peace and executing
the laws, the state may deprive individuals of life, liberty, or
property without consent or compensation.
b. The Taxing Power. The taxing power is an authoriza-
tion under which government takes private property for pub-
lic purposes without compensation. By this authority the
state provides for the most fundamental legislation for or
against labor. It provides free schools, compulsory education
for future workers, and pays the salaries and expenses of all
officials who enforce the labor laws. A labor law is defeated
as surely by voting against taxes to enforce it as by voting
outright against the law itself. But the taxing power is used,
not only for revenue, but also for purposes which otherwise
are justified under the police power. A tariff on the products
of foreign pauper labor is designed to strengthen the bargain-
ing power of American labor. A tax on poisonous phosphor-
us matches is placed so high that it brings in no revenue at
all, and serves only to protect the health of employees. Under
our form of government the police power belongs to the states
and not to the federal government. But the federal govern-
ment docs, under the justification of the taxing power, what
the states might do under the police power.
c. Guardianship. The state is the universal trustee or
guardian, and exercises the remnants of the authority which
ta PRINCIPLES OF LABOR LEGISLATION
the monarch had as parens patrice, the "father of his country."
I n mediaeval times the property of a chief tenant reverted at
death to the king, and the children became the wards of the
king, for the king's benefit. Now the state is trustee for the
benefit of the children and the people. This power justifies
child labor legislation. In the early law of patria potestas, or
"power of the father," the natural father was the owner of
his child, as he was owner of his wife, lands, slaves and
chattels. It was the child's duty to obey. Now, the child
has many rights against its parent, and, since it is unable to
enforce these rights itself when the parent violates them, the
state intervenes as its guardian on behalf of the people of the
future. 1 It takes the child away if necessary; it deprives the
parent of his right to the child's earnings by prohibiting its
employment or by reducing its hours of labor; it enforces the
parent's duty of education by compulsory school attendance.
Patria potestas yields to the authority of parens patrice.
This authority of the state is nowadays treated as a branch
of the police power. 2 As such, it is a justification for an ex-
treme use of the police power not permitted in other cases.
It deals with children, unable to make bargains for themselves.
The police power primarily interferes with the bargains of
adults. Restrictions which the courts would not permit
under other classifications within the police power are un-
questionably approved when the justification of guardianship
is merged with that of police.
d. Eminent Domain. The state may be an owner of prop-
erty and business, like a private person. It may acquire
ownership by various methods, all of which rest ultimately
on its sovereign power of coercion. Some of its properties
are acquired by conquest. Others are purchased by voluntary
bargain; others, by compulsory bargain, under the power of
eminent domain. In either case the power of taxation may
furnish the funds.
Eminent domain is a justification of the state in taking
property from its own citizens without their consent. It dif-
fers from the other powers in that it applies to an individual
rather than to a class, and therefore our constitutions require
^ee Andrews, American Law, pp. 652-654, and cases there cited.
2 Freund, Police Power, 1904, pp. 246-253.
THE BASIS OF LABOR LAW 13
that compensation be made when property is taken. The
individual has no inalienable right to withhold his property
from the state, if the state desires it for a public purpose.
But the constitutions protect the individual against the state
by requiring just compensation.
e. Proprietorship. Whether it acquires physical property
or not, the state, in its various divisions of town, city, county,
state, and nation, becomes an employer of thousands of wage-
earners. It fixes their wages, hours and conditions of labor
according to its own ideas as determined by its legislatures,
executives, or courts. It is not restricted, as it is when exer-
cising the police power, because it is not taking away private
property (except perhaps as it falls back on the taxing power
to pay the wages). Consequently, the American state, under
universal suffrage and the power of proprietorship, or public
ownership and operation of public business, supported by the
taxing power, has gone far ahead of private owners in raising
wages, shortening hours and improving the conditions of its
employees. Even contractors, or private employers who work
for the state, are required, under laws that provide for "fair
wages," as in England, or for the "prevailing rate of wages,"
as in America, to pay higher wages or observe shorter hours
than they might in their work for private capitalists. 1
/. The Police Power. The police power is an indefinite
authorization for the American state to abridge liberty or
property without consent or compensation in addition to its
other more definite powers. An individual is sick with diph-
theria. The state draws the line of quarantine beyond which
his family and friends are deprived of their liberty of move-
ment. Valuable animals have the foot and mouth disease.
The state may order them to be shot and buried without con-
sent or compensation. A public utility corporation has the
valuable bargaining power of fixing its prices for gas, elec-
tricity, water, or transportation, and withholding service if the
price is not paid. The state reduces the price and compels
the company to continue or increase the service. The em-
ployer has valuable rights in his defenses of assumption of
risk, fellow servant, and contributory negligence in suits
1 See " Historical Development of the Minimum Wage, United States,"
p. 176; "Maximum Hours, Men," p. 228.
i 4 PRINCIPLES OF LABOR LEGISLATION
brought against him for damages caused by incident. The
state takes away his defenses and increases by so much the
value of the rights belonging to his employees. 1 Other
examples might be given. The bulk of labor legislation by
the states looks for authorization to the police power.
The police power in the United States differs from other
powers in the miscellaneous and indefinite range of subjects
that it may cover. It is defined rather by what it docs not
cover than by what it docs. It differs from the taxing power
in that it reduces the owner's liberty to use, acquire, or own
property, rather than the revenues derived from it. It dif-
fers from eminent domain in that it applies to a class rather
than to an individual and does not require compensation to
be made. While it includes guardianship, it differs from it
in that it abridges or enlarges the rights of adults and full
citizens instead of those of children. It differs from public
ownership and operation, or proprietary power, in that it
abridges or enlarges the powers of private persons over their
own persons or property instead of the power of the state
over its own property or business. It differs from the power
to use violence in order to keep the peace and execute the
laws, in that it is one of the justifications or reasons advanced
according to which the state is authorized to enact the laws
themselves, rather than the physical power to enforce them
after enactment. It is the police power, not the police
man.
The other powers of the state, previously mentioned, are
in theory definitely limited. Either they accomplish only
a specific object of government, such as conquest, peace, the
execution of laws, the acquisition of revenues, or the purchase
of property, or they extend only to a limited class of people,
such as children or public employees. But, in addition to
these objects and persons, there are those large and indefinite
purposes of public safety, health, morals, welfare, and pros-
perity, and those many but indefinite classes of producers and
consumers, buyers and sellers, employers and employees,
who often are restrained by government under the police power.
Moreover, these purposes and classes are continually changing
1 See "Industrial Accident Insurance," p. 372.
THE BASIS OF LABOR LAW 15
as industry changes from agriculture to commerce, or as prop-
erty changes from physical things to bargaining and con-
tracts, or as population becomes more congested and people
interfere with one another, or as public opinion regarding
rights and duties, morals and welfare, advances from igno-
rance to intelligence, from servitude to liberty. It is the police
power, for the most part, that affords, in the case of the state
governments, that elastic justification by which the state
abridges or enlarges liberty or property without compensation,
in order to achieve a newly recognized public purpose through
a newly recognized class of persons or things.
g. Commerce Power and Federal Powers. The police power
is not isolated from the other powers. All of them are but
different ways of looking at the single power of sovereignty.
But, under our system of government, sovereignty is divided
between the federal government and the state governments.
The federal government has specific delegated powers of taxa-
tion, of regulation of foreign and interstate commerce, while
the states have the taxing power, and, in addition, the "police
power. ' ' But the federal government uses its delegated powers
to accomplish the same purposes that the states accomplish
with their reserved police power. The taxing power is used
by the federal government, not merely to secure revenue, but
to protect industry and labor against foreign competition, or
to suppress state bank-notes, colored oleomargarine, or poison-
ous phosphorus matches. The "commerce" power is used to
regulate railroad rates and services, to restrict hours of labor
and to require the adoption of safety devices by railroad or
steamship companies. New lines of legislation protecting
labor, such as child labor and workmen's compensation, if
adopted by state governments, are justified by the police power
— if adopted by the federal government, they are justified by
the taxing power or the commerce power. Yet all powers are
but the single power of sovereignty split up to fit the constitu-
tional divisions of government. 1
h. Police Power and the Constitution. From the foregoing,
1 For detailed history of the conflict between the commerce and police
powers, Hastings, "The Development of Law as Illustrated by
the Decisions Relating to the Police Power of the State," in Proceedings
of the American Philosophical Society, 1900, Vol. XXXIX, p. 349.
16 PRINCIPLES OF LABOR LEGISLATION
it will be seen how impossible it is accurately to define the
police power, the taxing power, or the commerce power. Com-
paring the police power with the principles of the common
law Freund says 1 the state "exercises its compulsory powers
for the prevention and anticipation of wrong by narrow-
ing common-law rights through conventional restraints and
positive regulations which are not confined to the prohibi-
tion of wrongful acts. It is the latter kind of state con-
trol which constitutes the essence of the police power. The
maxim of this power is that every individual must submit to
such restraints in the exercise of his liberty or of his rights
of property as may be required to remove or reduce the dan-
ger of the abuse of these rights on the part of those who are
unskilful, careless, or unscrupulous."
Describing this power as developed under American institu-
tions, Ely says: 2 "It is that power of the courts committed
to them by American constitutions whereby they must shape
property and contract to existing social conditions by settling
the question of how far social regulations may, without com-
pensation, impose burdens on property."
Comparing it with other powers of government, Hastings
says: 3 "It is not necessary to adopt Treitschke's oft-repeated
declaration, that the state is force, in order to conclude that
the 'police power' is a fiction. Every judge whom we have
seen attempt to analyze it finds in it Madison's 'indefinite
supremacy' of the state. The doctrine of faculties and
separate powers of the state may not be as essentially absurd
as Treitschke thinks, but in our case the term is certainly a
mere abstract and collective one for the state, where regarded
as employed in certain functions." Hastings also says that
the police power is "a branch of constitutional law peculiar
to countries having legislatures with limited power. It is an
outgrowth of the American conception of protecting the in-
dividual from the state." 4
We may not say that the police power is a fiction, for it is
a necessary part of the reasoning by which, under our federal
1 Police Power, p. 8.
2 Property and Contract in Their Relations to the Distribution of Wealth,
1914, Vol. I, p. 220.
3 Hastings, op.cit.,p. 349. i Ibid., p. 360.
THE BASIS OF LABOR LAW 17
constitution, the distinction is made by the courts between
those powers that belong to the states and those that belong to
the federal government. Yet, from another point of view, it
is a fallacious distinction if it pretends to assign to the states
a different kind of power from that exercised by the federal
government. We have just said that the federal government
accomplishes, under the name of "taxing power" or "com-
merce power," what the states accomplish under the name of
police power. While the refinements of legal logic may seem
to make these powers different, they are identical from the
standpoint of the kind of legislation and the public purpose
which they justify. The police power has sometimes narrowly
been held to be limited to matters of health and morals. But
legislatures and Congress refuse to be limited in this way.
They regulate the bargaining power of individuals and cor-
porations where no justification can be found in the protec-
tion of health and morals. From this standpoint the theory
of the police power is used by the courts to determine how far
the state legislature may be permitted to go. But they use
similar standards or principles to determine how far Con-
gress may go in using the taxing power and the commerce
power.
Hereafter, for our purposes, in speaking of the police power,
we shall use the term in this broad sense, to imply all the
powers of government, whether state or federal, whether of
police, taxation, or interstate commerce, in so far as they are
used to justify that indefinite extension of power to abridge
liberty or property without compensation for some newly
recognized public purpose. The practical problem with which
we are concerned is not so much the technical legal distinc-
tions between different powers, as the extent to which these
powers are increasingly used to determine the bargaining re-
lations between employers and employees. In this way, with-
out formal amendment, the American constitutions are un-
consciously amended by the police power through the change
of public opinion regarding the rights and duties of labor.
This change works its way into the constitutions, partly
through the discretion of public authorities, and partly
through the application of old principles of justice to new con-
ditions.
2
iS PRINCIPLES OF LABOR LEGISLATION
(2) Public Authorities
Here the issue is between the amount of discretion, or
power to enforce one's own opinion, allotted to the execu-
tive, legislative, and judicial branches of government. Shall
the legislature or Congress use its sovereign power to the
extreme limit of equalizing fortunes and giving labor a high
preference over capital, or shall it be restricted to narrower
limits? In other words, can the legislature, under whatever
power of taxation, commerce, or police, put into force its own
notions of "general welfare" and "social expediency," or
must it be limited to the notions held by the courts?
In monarchical countries, or countries whose executives in-
herit monarchical powers, executive discretion still remains to
the monarch, or president, or the executive council, 1 after legis-
lative powers have been taken away by Parliament. This
power of discretion is the executive's power to decide when and
where a law applies, and to issue rules, regulations, ordinances,
or orders which have the effect of law, which are needed to en-
force the law, or even are thought by the executive necessary
to fill any gaps which Parliament has left in the scheme of
laws. Indeed, in enforcing a law, every executive officer must
exercise some discretion, which he does as his own opinion
directs. Discretion is the power to act without interference
according to one's own opinions, or policy, or theory of things.
It is not supposed to be capricious or changeable. It is power
to adopt and follow a policy, not power to be arbitrary and
unreasonable. Even a policeman must make up his mind
whether a man is drunk or not, before applying the law against
public intoxication. Policemen may differ in their opinions
on this matter, even though the facts do not differ, and their
differences are the little germs of what, in the case of a mayor,
governor, president, or king, would be called executive policy,
or executive discretion.
Under the theory of our constitution, however, the execu-
tive officers have no discretion to follow a policy of their own.
The legislature is the policy-making branch of government.
It has discretion; it can put its opinions into effect; it can
1 Switzerland.
THE BASIS OF LABOR LAW 19
adopt a policy, because it is supposed to represent all inter-
ests in society and to know all the facts. The effort is there-
fore made in our country to limit the executive discretion as
narrowly as possible, in order that it may be said that the
executive merely enforces the law as he finds it. To do other-
wise would be to delegate legislative power to an authority
that is not legislative under the constitution.
But with us, not even the legislature is the supreme legis-
lative power. The written constitutions are the fundamental
laws, enacted directly by the people themselves. Being laws,
they also express a policy, based on the opinion of the people
who adopted them. And their policy must prevail against
the legislative discretion. The policy of the constitutions is
extremely individualistic. It asserts inalienable and natural
rights of individuals against all others and against the state
itself. When a policy of the legislature set forth in a statute
comes into conflict with this individualistic policy of the
constitutions, some one must be called upon to decide which
shall prevail. The supreme courts, at first with hesitation,
but afterward with assurance, have made these decisions. If
a statute of the legislature fixing the hours of labor conflicts
with the constitution, the courts merely refuse to enforce it —
they enforce the constitution itself. They declare the law
1 ' unconstitutional. ' ' l
But there is a principle of our courts to the effect that a
law is not unconstitutional if a way can be found to sustain
it. Hence, if there is an apparent conflict between the con-
stitution and the attempt of the legislature to abridge private
rights, and if the court cannot support the legislature under
the other limited justifications of taxation, guardianship,
proprietorship, eminent domain, or protection of person and
property, it may see its way to support it under the elastic
justification of the police power. Thus the police power in
America may be looked upon as the courts' justification for
gradually amending the constitution by interpretation so that it
may conform to the new objects and new restrictions on prop-
J For history of laws declared unconstitutional see Moore, "The
Supreme Court and Unconstitutional Legislation," Columbia Uni-
versity Studies in History, Economics, and Public Law, Vol. LIV, 1913,
No. 2.
20 PRINCIPLES OF LABOR LEGISLATION
erty which the legislature deems important. A similar justi-
fication and gradual amending of the constitution takes place
when the court permits Congress to extend the taxing power
or the commerce power to the regulation of rates, services,
wages, hours of labor, safety, health, and compensation for
accidents.
This distinction between discretion on the part of the legis-
lature and interpretation on the part of the courts is a dis-
tinction not so much between the several powers of govern-
ment as between the functions peculiar to the several branches
of government. It leads us to distinguish the public authori-
ties who share in the exercise of the public powers.
Government can interpret and exercise its powers only
through individuals. Each of these individuals takes an oath
appropriate to his office, agreeing to support the constitution,
to execute the law, to maintain order. For the time being
his acts are the acts of the state, provided he keeps within the
authority granted to him. To the legislature is granted the
authority of deciding on public policy for the future, and, in
doing so, it exercises discretion. To the courts belongs the
power of deciding particular cases as they arise, and in doing
so they interpret the laws. The executive enforces the law.
But, to a fourth and new branch of government, unrecognized
in the original constitutions, which may be called the adminis-
tration, 1 is coming to be assigned the function of investigation
of those economic and social conditions upon which the several
branches of government base their decisions. While these
functions cannot be separated in practice, yet they stand out
as characteristic of each branch of government. Execution,
discretion, interpretation, and investigation are the four great
divisions in the functions of officials, and the executive, the
legislature, the judiciary and the administration are the four
branches that are specialized for these functions.
a. The Executive. The executive authorities are entitled to
use violence if necessary, and to deprive individuals of life,
liberty, and property without their consent. Private individ-
uals may not even resist an officer of the law. The army,
1 Die Verwaltung. The term "administration" has been used by the
Supreme Court in this sense, 224 U. S. 474 (191 1)\ 230 U. S. 196, 274
(1912).
THE BASIS OF LABOR LAW 21
navy, and militia may be called upon by the governor or pres-
ident in time of strike or riot. Sheriffs, marshals, their
deputies and policemen, may arrest and imprison individuals
in order to prevent violence and to execute the orders of the
court in the administration of civil and criminal justice. They
belong to the military or "police" force of the state, which,
under our theory, is subordinate to the civil authorities. The
police force, as already stated, differs from the police power,
in that the police power is the authorization, or justification,
under which civil authorities are entitled to exercise discre-
tion in enacting laws and issuing orders, while the police force
is the agency which exercises coercion as directed by these
laws and orders.
While in law the military and police forces have no dis-
cretion, but must follow orders, yet, in the urgency of im-
mediate action, they must exercise discretion before their acts
can be passed upon by the civil authorities. Only in case of
war can executives legally set aside the superior authority of
the courts, but war can be declared only by the legislature, a
civil authority. 1 The arbitrary discretion of the executive is
sought to be held in check by that greatest instrument of
freedom, the writ of habeas corpus. By means of this writ the
court, a civil authority, orders the executive, or military power,
to bring out a prisoner for hearing and for release if wrongly
imprisoned. If the executive refuses, then the civil authority
ipso facto becomes subordinate to military force. In so far
as the executives and the military and police authorities exer-
cise discretion, their opinion of the rights and duties of em-
ployer and employee is sometimes the deciding factor one
way or the other in determining the relative power of the
two in the wage bargain as affected by strikes, lockouts, pub-
lic assembly, public speaking, agitation, arrest of leaders,
protection of strike-breakers, picketing, the use of the streets,
and otherwise.
b. The Legislature. The legislature is the authority which,
acting within limits, is entitled to exercise discretion in de-
•This has apparently been denied by the Supreme Court of West
Virginia, which sustained the acts of a "military commission" in sen-
tencing strikers to prison, State ex rcl. Mays v. Brown, 71 W. Va. 519,
77 S. E. 243 (1912) ; ex parte Jones, 71 W. Va. 567, 77 S. E. 1029 (1913).
9 2
PRINCIPLES OF LABOR LEGISLATION
tiding upon public policy and enacting laws to carry the
policy into effect. It is the one branch of government where
the representatives of conflicting opinions are entitled to ex-
press their joint opinion in the form of law that shall be en-
forced on all persons with or without their consent. _ Other
branches of government are considered to be impartial and
limited to the execution of the law as the legislature prescribes.
But the legislature may be partisan in politics and partial
between employers and employees. It is considered that, if
partisans meet and discuss in an orderly way their points of
antagonism, the outcome will be a compromise in which the
arbitrary power of no individual or class will dominate others.
Yet, in fear that the legislature may not act justly, and may
override minorities or those not represented, the_ people have
enacted the higher law known as the constitution, with its
bill of rights and its limitations on the legislature. This leads
to the judiciary.
c. The Judiciary. Under our constitutional system the
judicial branch holds a high and unique position. In order
that it may be removed from the heat of partisanship and
partiality it is made independent of the executive and legis-
lative branches. In order that the federal system of a cen-
tral government and forty-eight state governments, each su-
preme in its own field, may operate in harmony, the federal
court is made the final authority to determine how far the
field of each extends. By the fourteenth amendment to the
constitution, all persons born or naturalized in this country
enjoy a double citizenship— that of the United States and of
the state wherein they reside. By this amendment the federal
courts have authority to prevent any state from abridging
the rights which the federal constitution and laws grant to
them as citizens of the United States, and to prevent any
state from depriving any person of life, liberty, or property
without due process of law. The federal courts interpret and
apply treaties with foreign nations and protect the rights of
aliens. Finally, since the acts of the federal Congress or ex-
ecutive may conflict with the constitution, the federal court
may declare them unconstitutional and hence refuse to apply
them, in order to protect the constitution.
In this many-sided jurisdiction over states, over Congress,
THE BASIS OF LABOR LAW 23
over the executive, over inferior courts, and over private
citizens, and in the interpretation of these many laws, the
Supreme Court of the United States exercises authority not
only judicial, but also, in fact, legislative and executive. So
with the supreme courts of the states within their proper
jurisdictions. When deciding between a law of the legisla-
ture and the law of the constitution, they necessarily decide
between the policy of the legislature and their own opinion,
based on previous decisions, of the policy contained in the
constitution. When nullifying an act of the executive they
interpose their opinion of the law and the constitution against
the executive's opinion. Yet they are but performing the
judicial function of interpreting the laws and making their
application to the facts of each particular case, as it arises.
Their legislative and executive functions arise because they
have authority to apply their interpretation to cases in which
the acts of legislatures and executives are called in question,
as well as cases where only private citizens arc the litigants.
In this way is established, as the court has said, "a govern-
ment of laws and not of men." 1
But the courts, just as legislatures and executives, are com-
posed of men. They, too, are guided by opinions, and their
opinions change with change in experience and change in
judges. The difference consists in the procedure, the stand-
ards, and the safeguards by which the judges arrive at their
opinions, compared with those which restrain the more hasty
opinions of lawmakers and executives. It is merely "opin-
ions," after all, rather than written constitutions, that pro-
tect, enlarge, and abridge rights and duties.
d. Tlie Administration. But opinions of individuals are so
capricious, fluctuating, and uncertain, so liable to be bent by
bias, passion, and interest, that our constitutional system of
government imposes methods and principles designed to re-
duce them to an orderly system based on reason. These
methods are investigation or the accurate discovery of facts
and conditions, and in more recent times the administrative
branch of government has been devised with investigation as
its main purpose. Investigation is so involved in all the
'Marbury v. Madison, 1 Cranch 137, at p. 163 C1803).
a 4 PRINCIPLES OF LABOR LEGISLATION
topics of labor legislation that the treatment of administra-
tion is reserved for the concluding chapter.
(3) Principles
The other essential to an orderly system of reason in place
of capricious opinion is the principles, standards, or "maxims"
that underlie due process of law. Under the theory of our
courts, the principles of law and justice are immutable and
unchanging. Facts and conditions change, and these are re-
vealed by investigation, but the principles remain the same,
though their application changes when the facts change. The
leading principles that concern us are "public benefit" and
"equal protection of the laws."
a. Public Benefit. The effect and purpose of the police
power is to impose a duty on some individual which redounds
to the benefit of other individuals. 1 In despotic or oligarchic
governments these benefited individuals are likely to be the
favorites and courtiers of the monarch or the privileged and
aristocratic classes. In a democratic or republican govern-
ment they are likely to be political partisans, monied interests,
employers' organizations, trade unions, or other classes who
get control of the legislature and enact laws merely for the
benefit of their private interest at the expense of other private
interests. But if a thing of this kind happens, then the legis-
lature is doing the very thing which revolutions and written
constitutions were designed to prevent when despots and
aristocrats were the offenders. Hence it is that every act
of the legislature must be tested by a standard which shall
determine whether the persons or classes of persons to be
benefited are so benefited merely because they have power in
the legislature to impose burdens on others, or because the
benefit to them is also a benefit to that body of the whole
people which we call "the public." If the benefit goes only to
private persons for their private benefit, then the legislation
is unconstitutional, because it employs the sovereign power of
government for private purposes. But if those persons who
1 See "The Police Power," p. 13.
THE BASIS OF LABOR LAW 25
are benefited are either the entire population or such a sig-
nificant part of the population that their benefit is also a
public benefit, then the powers of government are put to
their proper use of performing a public purpose. 1
Thus we have a series of terms closely related or synony-
mous, all of them implying public benefit, such as public utility,
public interest, public use, public value, public service, pub-
lic welfare, public purpose. These indicate the most funda-
mental principle, standard, or maxim, which measures or limits
the extent to which the legislature my go in exercising its
police power.
But public benefit is not something fixed and unchangeable.
The police power particularly is that justification by which
the definition of public benefit may be changed or enlarged
as time goes on. In the final analysis this enlargement of the
definition of public benefit is merely an enlargement of the
court's opinion as to what constitutes a public purpose. But,
behind the change in the court's opinion is the change in
conditions and the change in public opinion. Among the
changes in conditions which lead to changes in opinion are
those industrial changes already mentioned, such as the change
from free land to closed land, the changes in transportation
and mobility of labor, the development of large-scale indus-
try, all of them throwing large masses of labor together into
active competition. The increasing congestion of population,
whether in towns or factories, has brought a change of opinion
as to the need of extending the police power in matters of
health, safety, and morals.
Accompanying these changes in outward conditions may be
noted significant changes in public opinion and court opinion
regarding labor. In the colonial or agricultural stage of in-
dustry the man without property was looked upon as partly
shiftless, partly vagabond, partly criminal, and the opinion of
the time supported many kinds of coercive laws by which
both adults and children might be captured or enslaved or
otherwise compelled to work. In this way it was considered
that propertyless laborers would be trained in the habits of
'The term "public purpose" is usually limited to taxation and
eminent domain, but in this book it is also applied to other powers,
especially the police power.
26 PRINCIPLES OF LABOR LEGISLATION
industry and thrift by which they could rise to the position
of proprietor and could share in the rights and civilization of
their superiors.
A citizenship stage followed, beginning in the decade of
1820, when the propertyless man was granted the suffrage.
This produced at once a revolutionary change in the atti-
tude of labor toward itself, shown in the first series of strikes
on a large scale for reduction of hours of labor with the demand
for more leisure for the duties of citizenship as well as the
demand for free schools, for the abolition of imprisonment
for debt, of indentured service, and other remnants of the
servile stage.
Immediately following this period and the failure of ag-
gressive methods, after the panic of 1837, came what may be
called the humanitarian period. Labor, for the time being,
lost its power of attack and became incapable of self-help.
So the long period of unemployment, until the gold discoveries
of 1849, produced a class of eminent men in sympathy with
labor, and brought about the beginning of legislation abolish- v
ing imprisonment for debt, providing wage and homestead
exemptions, free schools, protective tariffs against foreign
pauper competition, and generally removing the opinions of
servility, dissoluteness, and criminality theretofore held re-
garding propertyless labor. This remarkable period cul-
minated in the Civil War, which freed the slaves. It was
accompanied by similar movements in Europe, and altogether
was nothing less than a revolution in public opinion regard-
ing labor. 1
With the decade of the 'sixties began again an aggressive
movement of labor, headed in Europe by the International
Workingmen's Association, which later split into socialism,
anarchism, and trade-unionism, and in the United States by
the National Labor Union, which finally split into green-
backism, socialism, and trade-unionism. This period, ex-
tending into the twentieth century, may properly be char-
acterized as a period of class struggle, in which new and
enormous fortunes derived from industry were pitted against
unprecedented organizations of labor in many deadly strug-
L See Chapters II, "Individual Bargaining," and III, "Collective Bar-
gaining."
THE BASIS OF LABOR LAV\ r 27
gles, and in which legislatures responded to the demands of
labor for legislation, and the courts responded to the demands
of capital by declaring such laws " class legislation" and there-
fore unconstitutional.
This period, to a considerable extent, continues to the pres-
ent time, but the beginning of another, which may be called
the public benefit period of labor legislation, dates from 1898,
when the Supreme Court decided the case of Holden v. Hardy.'
Hitherto the police power was recognized mainly as an au-
thority to enforce protective restrictions against producers
in behalf of consumers. This decision affirmed the power to
enforce such restrictions on employers and consumers in
behalf of producers. In other words, whereas formerly, for
the most part, the health of consumers, but not the health of
producers, was a public benefit, now the health of the laborer
as a producer is considered to be as much a public benefit as
the health of the consumer of his product. If this be so, then
the liberty of both the employer and the employee to make a
labor contract may be restricted and regulated, if it is found
that the contract is injurious to the laborer. The protection
of labor becomes a public purpose. 2
In the Holden v. Hardy case the court also stated the prin-
ciples on which the powers of government are enlarged as
conditions change and new facts are brought to the attention
of the court through investigation: "This court has not failed
to recognize the fact that the law is, to a certain extent, a
progressive science; that in some of the states methods of
procedure which, at the time the constitution was adopted,
were deemed essential to the protection and safety of the
people, or to the liberty of the citizen, have been found
to be no longer necessary; that restrictions which had for-
merly been laid upon the conduct of individuals, or of classes
of individuals, have proved detrimental to their interests,
while, upon the other hand, certain other classes of persons
r i69 U. S. 366 (1898). The decision affirmed the constitutionality
of legislation reducing the hours of labor of men who work in smelters
and underground.
2 This was, of course, not the first time that this doctrine was as-
serted. Indeed, it was implied whenever a court sustained a law pro-
tecting labor. But it was the first broad statement by the highest
court in such a way as to make it "the law of the land."
28 PRINCIPLES OF LABOR LEGISLATION
(particularly those engaged in dangerous or unhealthful em-
ployments) have been found to be in need of additional pro-
tection. ... It is impossible to forecast the character or ex-
tent of these changes; but in view of the fact that, from
the day Magna Charta was signed to the present moment,
amendments to the structure of the law have been made with
increasing frequency, it is impossible to suppose that they will
not continue, and the law be forced to adapt itself to new
conditions of society, and particularly to the new relations
between employers and employees, as they arise." 1 Two
state courts have said, "While the principles of justice are
immutable, changing conditions of society and the evolution
of employment make a change in the application of principles
absolutely necessary to an intelligent administration of
government." 2
Finally a justice of the Supreme Court, in 191 1, is able to
identify a public benefit with public opinion regarding not
only the health of a class of producers, but also regarding the
welfare of any class of people, and to declare that the police
power is shaped "by the prevailing morality or the strong and
preponderant opinion" as to what is "greatly and immedi-
ately necessary to the public welfare." 3
b. Equal Protection of the Laws. Another respect in which
the case of Holden v. Hardy is the headlight of a new period
is found in its opinion regarding the inequality of bargaining
power of employer and employee. The opinion declared that
a law, such as the one then before the court, limiting the work-
ing hours of men, was not class legislation and therefore did
not conflict with the constitution which guarantees to each
individual the equal protection of the laws. The reason is,
1 Holden v. Hardy, 169 U. S. 366, at pp. 385-387 (1898).
2 Ritchie v. Wayman, 244 111. 509, 91 N. E. 695 (1910); quoted with
approval from Washington v. Buchanan, 59 L. R. A. 342 (1902).
3 Noble State Bank v. Haskell, 219 U. S. 104 (191 1), at p. ill. Also
contrary opinion in Ives v. South Buffalo R.R. Co., 201 N. Y. 271, 94
N. E. 431 (191 1), at p. 448, where the highest court of New York said
in part: "As to the cases of Noble State Bank v. Haskell and Assaria
State Bank v. Dolly, we have only to say that if they go so far as to
hold that any law, whatever its effect, may be upheld because by the
'prevailing morality' or the 'strong and preponderant opinion' it is
deemed ' to be greatly and immediately necessary to the public welfare,'
we cannot recognize them as controlling of our construction of our own
constitution."
THE BASIS OF LABOR LAW 20
as declared by the court, that the employers and their laborers
do not stand upon an equality; that "the proprietors lay down
the rules and the operatives are practically constrained to
obey them"; that "the latter are often induced by the fear
of discharge to conform to regulations which their judgment,
fairly exercised, would pronounce to be detrimental to their
health and strength," and that, even though "both parties
are of full age and competent to contract," yet the legislature
may interfere "where the parties do not stand upon an
equality, or where the public health demands that one party
to the contract shall be protected against himself." 1
In this opinion the court recognized, what had been dimly
seen or implied from the beginning of labor legislation, that
inequality of bargaining power is a justification under which
the state may come to the protection of the weaker party to
the bargain. In earlier periods the courts had often held that
capital and labor were equal, that laws favoring labor against
capital were class legislation, and, even where certain courts
held otherwise, the law books severely criticized them as
yielding to the pressure of politics instead of bravely stand-
ing by the constitution. 2 But inequality of bargaining power
has long been a ground for legislative and judicial protection
of the weaker party, even though the courts found other
grounds on which to base their opinions. It was early con-
ceded as a justification of usury laws, protecting the weak
debtor against the strong creditor; latterly of public utility
laws, protecting the weak consumer against the powerful cor-
poration; and now it only needs a recognition of facts to
justify labor legislation protecting the weak wage-earner
against the more powerful capitalist. Such legislation could
•A similar opinion had been stated in 1892 by a state court (Peel
Splint Coal Co. v. State, 36 W. Va. 802, 15 S. E. 1000 (1892), at p. 1009:
"When a few persons are engaged in an extensive business and they
have a multitude of customers or dependent employees and it appears
that the business is of such a character that the parties do not deal
upon an equal footing and that the many are at a disadvantage in
their contractual relations with the few, the legislature may regulate
these relations, with a view to prevent fraud, oppression, or undue ad-
vantage." See also State v. Brown & Sharpe Manufacturing Co.,
18 R. I. 16, 25 Atl. 246 (1892); A vent Beattyville Coal Co. v. State, 96
Ky. 2i8, 28 S. W. 502 (1894).
2 Eddy, Law of Cgmbinations, 1901, Vol. I, pp. 245-247, 277; Vol. II,
p. 1023.
3 o PRINCIPLES OF LABOR LEGISLATION
be held to deny equal protection of the laws only where the
facts showed that both parties were actually equal. But
where the parties are unequal (and a public purpose is shown), 1
then the state which refuses to redress the inequality is
actually denying to the weaker party the equal protection
of the laws.
It is by recognizing this inequality of bargaining power,
coupled with a public purpose, that the courts pass over, in
any particular case, from the theory of class legislation to the
theory of reasonable classification. The two are identical in
one respect; all classification is class legislation, but the kind
of class legislation which the courts condemn is that which
they consider to be " unreasonable ' ' classification. Class legis-
lation benefits or burdens one class against others where there
is no real inequality or no public benefit. "Reasonable"
classification benefits or burdens a class where there is real
inequality to be overcome and a public benefit to be attained. 2
That which is class legislation at one time may become rea-
sonable classification at a later time, if the court perceives
that what it once thought was equality is really inequality,
and what it once thought was merely private benefit is also
public benefit.
Thus the history of the constitutionality of labor legislation
in the United States has been a history of the theory of classifi-
cation. The conflicting opinions of various courts on the ex-
tent of the police power over private property are usually
conflicting opinions on the equality or inequality of bargain-
ing classes and on the public or private purpose subserved by
the legislation. In proportion as certain classes of la-
borers, such as women or mine-workers, are recognized by
the courts as suffering an injury, and in proportion as the in-
jured persons are deemed to be of importance to the public
as well as unable to protect themselves, then legislation re-
quiring the employer to remove the injury and prohibiting the
J In the recent case of Coppage v. Kansas, 35 Sup. Ct. 240 (1915), the
Supreme Court denied the application of the doctrine of inequality of
bargaining power, but this was a case where the purpose was to protect
trade unions against disruption by employers. What the court in
effect decided was that a trade union performed a private and not a
public purpose. See "The Law of Conspiracy," p. 113.
2 See also Freund, Police Power, pp. 626-755.
THE BASIS OF LABOR LAW 31
laborer from even voluntarily consenting to the injury ceases
to be overruled as "class legislation" and begins to be sus-
tained as "reasonable classification." Even though the in-
dividual liberty of both employer and employee to make so-
called voluntary contracts is restricted by the law, yet each
continues to have "equal protection of the laws" because
each individual is treated equally with all other individuals
of his own class. The bargaining power of the employee is
increased while that of the employer is reduced, yet all em-
ployers in a given class are treated alike and all employees
in their class are similarly treated alike. 1
This gradual transition from the time when labor v.
treated as equal to capital to the modern time when labor is
given privileges superior to those of capital may be described
as a transition from the law of master and servant to the law
of employer and employee. Prior to the decade of the 'thirties
the laborer could be imprisoned for debt. In other words, his
creditor had rights over his body, which was looked upon as
property justly belonging to the creditor as was the laborer's
other property sufficient to pay the debt. This reduced the
laborer to a servile state while pretending that he was equal
and free. No distinction was made between the fraudulent
debtor and the unfortunate debtor. Now the laborer is not
treated as a criminal unless proved to be so, and his creditor
consequently has no remedy which reduces the laborer to the
servile state.
Next, in the decade of the 'forties, the law went further and
the wage exemption laws prevented the creditor from taking
even the minimum wages of the laborer in payment of a debt.
1 This principle may be seen in the workmen's compensation laws.
Under the former law of employers' liability the laborer carried all the
expense incurred by reason of the risk of accident. The employer had
certain defenses by which he could throw the cost of accidents on the
employee. (See ""Rules of Employers' Liability," p. 358.) These de-
fenses were held to be property rights, because they were valuable to
the employer. But the legislature abolished these defenses and requires
the employer to compensate all laborers for all disabling accidents. The
employers are thus compelled to pay the cost of insurance against all 1 >£
these risks, where formerly the laborer carried the insurance as best he
could. In this way the employer's increased cost of insurance may be
said, so far as the law is concerned, to have increased the bargaining
power of the employee and reduced the bargaining power of the employer
or of the consumer to the same extent. ,
32 PRINCIPLES OF LABOR LEGISLATION
Finally, the thirteenth amendment to the constitution, by
prohibiting involuntary servitude except for crime, confirmed
the preceding privileges as well as the privilege of a laborer
even to break his contract to labor without being forced to
"specific performance." In these respects labor has been
given a preference over capital, in that while both the em-
ployer and the employee can bring suits for damages on
account of breaking a contract, the employer's suit is against
the laborer whose small property is exempt from attachment,
but the laborer's suit is against an employer whose business
property as such has no exemption. 1
Other laws arc mentioned in the following chapters, showing
the transition from the master-servant notion of law to the
employer-employee notion. The master and servant law,
while pretending to treat employer and employee alike, re-
tained marks of that servile status in which the laborer's body
was the physical property of employer or creditor. But the
law of employer and employee, as it develops, not only grad-
ually removes those vestiges of past servitude, when the
master could compel the servant to work, but also gives the
latter a preference over capital in bargaining and a privilege
to break contracts without effective penalty which the em-
ployer does not possess. In other words, the natural in-
equality of employer and employee reduces the latter to a
servile state, reinforced by the law of master and servant,
but the legislature, by giving preference to the weaker party,
overcomes in part the inequalities of nature and secures a
more real equality protected by the law of employer and
employee. 2
Thus it may be affirmed that the equality of bargaining
power toward which the law of employer and employee is
directed is a principle so important for the public benefit that
1 Of course, the bankrupt employer has the same exemptions as the
laborer.
2 This distinction between the law of master and servant and that of
employer and employee is not technically correct. The law books in-
clude both under "master and servant." But the legislatures have
broken away from these terms. In recent legislation of the more indus-
trial states the terms used are employer and employee. This goes along
with popular usage and serves to bring out, not so much the legal form
of the labor contract, as the underlying purpose of equality in the wage
bargain.
THE BASIS OF LABOR LAW 33
it becomes in itself a public purpose. Many decisions of the
courts base the justification of the police power, not merely
upon the protection of health, safety, and morals, but squarely
upon strengthening the bargaining power of laborers. In sus-
taining a law requiring wages to be paid in cash, the Supreme
Court of Tennessee said: "The legislature evidently deemed
the laborer at some disadvantage under existing laws and
customs, and by this act undertook to ameliorate his condi-
tion in some manner by enabling him, ... at his election and
at a proper time, to demand and receive his unpaid wages in
money rather than in something less valuable. Its tendency,
though slight it may be, is to place the employer and employee
upon equal ground in the matter of wages." 1 The court again
approved the passage in Holden v. Hardy bearing on bargain-
ing equality.
Upon similar grounds was upheld as constitutional an
Arkansas law forbidding coal operators "from using screens
or other devices to reduce the amount of wages that would
be due on the basis of weight of coal actually mined and
accepted by the operator." The court said: " We are unable
to say, in the light of the conditions shown in the public in-
quiry referred to, and in the necessity for such laws, evinced
in the enactments of the legislatures of various states, that
this law had no reasonable relation to the protection of a large
class of laborers in the receipt of their just dues and in the
promotion of the harmonious relations of capital and labor
engaged in a great industry in the state." 2
The court argued in a like tenor in upholding an Iowa
statute denying effect to any contract restricting liability or
the acceptance of any insurance benefits as a defense to per-
sonal injury actions brought against railroads by their em-
ployees. In dealing with the relation of employer and em-
ployed the court held that "the legislature has necessarily a
wide field of discretion in order that there may be suitable
protection of health and safety, and that peace and good order
^noxville Iron Co. v. Harbison, 183 U. S. 13 (1901). For cases
declaring similar laws unconstitutional, see Freund, Police Power, pp.
305. 306. .
2 McLean v. Arkansas, 211 U. S. 539 (1909), at p. 550, reprinted in
Hall, Cases on Constitutional Law, 1913, p. 424.
3
34 PRINCIPLES OF LABOR LEGISLATION
may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression.
What differences as to the extent of this power may exist with
respect to particular employments and how far that which
may be authorized as to one department of activity may ap-
pear to be arbitrary in another must be determined as cases
are presented for decision. But it is well established that,
so far as its regulations are valid, not being arbitrary or un-
related to a proper purpose, the legislature undoubtedly may
prevent them from being nullified by prohibiting contracts
which, by modifications or waiver, would alter or impair the
obligation imposed." 1 The court here also quotes with ap-
proval the passage from Holden v. Hardy relating to inequality
and conflicting interest.
As summarized by Ernst Freund: 2 "Our whole economic
system is based upon a very wide liberty of dealing and con-
tract, and it is deemed perfectly legitimate to use liberty for
the purpose of securing special advantage over others. The
resulting disparity of conditions is not, on the whole, regarded
as inconsistent with the welfare of society. Yet a different
view seems to be taken of this liberty of dealing, where
economic superiority is used to dictate oppressive terms, or
where a degree of economic power is aimed at that is liable
to result in such oppression. The theory of legislative inter-
ference seems to be in some cases that oppression in itself,
like fraud, is immoral and wrong either against the individ-
ual affected thereby or against the public at large; in other
cases, that the excessive dependence of whole classes of the
community threatens, though perhaps only remotely, the
social fabric with grave disturbance or ultimate subversion
and ruin."
1 Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549
(191 1), at p. 570, reprinted in Hall, Cases on Constitutional Law, p. 518.
2 Police Power, p. 285.
CHAPTER II
INDIVIDUAL BARGAINING
In the broadest sense of the term a debt is that which is
due from one person to another, whether money, goods, or
services. 1 The laborer as debtor may, therefore, be looked
upon as owing either labor or money to another. But modern
law does not force a laborer to work out his debt. It con-
verts a labor debt into a money debt, or "damages," and en-
forces payment of the latter. Furthermore, under "exemp-
tion" laws, the law does not always enforce even the total
payment of a money debt.
On the other side, the laborer is a creditor to the extent
that the employer owes him money for his labor. Here, too,
modern legislation gives him certain privileges or protection,
not usually given to other creditors.
It is in this twofold relation of debtor and creditor that
we trace the history of labor law from the servile stage, through
the stage of master and servant, to the modern stage of
employer and employee.
i. The Laborer as Debtor
If we classify the legal relations of the laborer as debtor
we shall begin with the employment of labor in its elementary
form of slavery, where all of the rights were on the side of
the owner and all the obligations on that of the laborer.
This, and a succeeding or contemporary stage of serfdom,
are known as a period of status. The laborer is born to the
1 Kimpton v. Bronson, 45 Barb. 625 (1866).
36 PRINCIPLES OF LABOR LEGISLATION
position and does not enter it by agreement or contract. But
stains often merges into contract, or the fiction of a contract,
and we may therefore speak of a servility stage, or a stage
of servile contracts, preceding that of free contracts. Here
would be classified slavery, serfdom, and peonage. These
conditions of labor, even if based on contract, may be so
evidently the outcome of coercion that they may rightly be
considered as belonging to a pre-contract or servile stage.
A second stage, which we may designate as that of master
and servant, emerges gradually from the more liberal forms of
servile contracts, although retaining vestiges of servile rela-
tions. Some of the contracts of this stage, especially the
seaman's contract, have continued down to the present day,
while others, such as apprenticeship, indentured service, and
contract labor, can with difficulty be distinguished from those
of the servile stage. The ameliorating character of both the
servile and master stage is that of paternalism, and both of
them are closely connected with the institution of the family,
in which the wife and children occupy a position of status,
afterward modified by contract, express or implied.
Modern labor legislation, as understood in this book, be-
gins with a conscious effort on the part of the legislature to
remove both the servile and paternal vestiges of the master
and servant stage and to substitute a stage of real equality,
as far as possible. This we designate as the employer and
employee stage.
(j) Servile Labor
a. Slavery. The worker under primitive slavery is re-
garded as the property of his master. In Roman law a
slave was regarded not as a person, but as a thing. 1 In 1776
Mr. Justice Chase of Maryland said: "Negroes are property,
and no more members of the state than cattle."
In England, in 1772, it was held by the court that slavery
could not exist in the mother country. The slave trade was
abolished by statute there in 1807, and in the colonies in 1833.
1 Sohm, Institutes of Roman Law, tr. Ledlie, 1901, p. 171.
2 Wilson, History of the Rise and Fall of the Slave Power in America,
n. d., Vol. I, p. 15-
INDIVIDUAL BARGAINING 37
The example of Great Britain in regard to her colonies was
gradually followed by other European states, by France in
1848, Portugal in 185S, Holland in 1863. Spanish-American
states abolished slavery after securing independence. In the
United States the slaves were freed in 1865 by the thirteenth
amendment to the federal constitution, as an outcome of the
Civil War, and Brazil, the South American state which re-
tained slavery longest, abolished it by decree of the Chambers
in 1888.
b. Serfdom. Slavery aims at the subjection of the whole
man. Another degree of unfreedom, namely, serfdom or
villeinage, does not attempt to cover the entire range of
human life. It is concerned only with certain relations, gen-
erally economic in character. Compulsory labor — compul-
sion as to the kind of service and the time and place where it
is to be rendered — is the essential note of serfdom or villeinage.
A serf was bound to the land and bought and sold with it,
like cattle. But he might secure freedom by "commuta-
tion," that is, by paying to the lord or master who had the
title to the soil a sum of money or an annual payment pre-
sumably equivalent to the value of the sendee which he
rendered his lord. He substituted a money debt for a labor
debt — in other words, he bought his freedom. Serfdom ap-
pears as a corollary of feudalism. It grew up as a conse-
quence of customary subjection in an agricultural system and
melted away with the advent of the industrial age.
c. Peonage. Peonage has been defined as a "status or
condition of compulsory service based upon the indebtedness
of the peon to the master." l The basic fact is indebtedness.
In Mexico, after the Spanish conquest, slaves were used in
mines and on roads, while serfs or peons were used for agri-
culture. The condition of the latter, though differing little
from slavery, was theoretically more humane and right-
respecting. Together with peonage a system of large estates
grew up. The peons got food and clothing from their mas-
ters. 2 These Mexican peons are descendants of natives en-
slaved by the Spaniards, and are often merely bondsmen. 3
'Clyatt v. U. S., 197 U. S. 207 (1904).
2 United States Bureau of Labor, Bulletin No. 38, 1902, p. 23.
3 W. E. Carson, Mexico, 1914, p. 185.
3 S PRINCIPLES OF LABOR LEGISLATION
Their wages arc so low that they are always without money,
and they arc compelled to deal at the store of the estate.
They are always kept in debt, and, according to Mexican law,
an Indian workman owing his employer becomes the prop-
erty of the latter. 1 Sometimes peons are induced to contract
for work to be done in tropical parts, and here they get into
debt at once and are prevented by armed guards from escap-
mg.-
In the United States, after the abolition of slavery by
the thirteenth amendment in 1865 the proprietors, being de-
prived of their property right in the services of the slave,
sought in some cases to effect the same purpose by indirect
means, such as enforcing indebtedness and compelling the
working out of the debt. These subterfuges gave added im-
petus to the agitation which led to the adoption, two and a
half years later, of the fourteenth amendment, which created
a citizenship of the United States in addition to that of the
state, and prohibited any state from depriving a citizen of
the United States of "life, liberty, or property without due
process of law," or denying "to any person within its juris-
diction the equal protection of the laws." 3
In 1S75 the United States Congress passed statutes which,
have been thought to enforce the meaning of the thirteenth
amendment. That they do not entirely accomplish this is
pointed out by the Immigration Commission of 191 1. 4 One
statute provides heavy fines for those who "conspire to in-
jure, oppress, threaten, or intimidate any citizen in the free
exercise or enjoyment of any right or privilege secured him
by the constitution of the United States"; 5 and another for
"every person who kidnaps or carries away any other person,
with the intent that such person be sold into involuntary
servitude, or held as a slave." 6 But, as the Immigration
Commission shows, " if a person simply places or holds another
in slavery, it is impossible for the federal courts to impose
1 W. E. Carson, Mexico, 1914, pp. 188, 189.
2 Ibid., p. 191. See also Ely, Property and Contract, 1914, Ch. X.
3 Constitution of the United States, Fourteenth Amendment, Sec. 1 ,
in force July 28, 1868.
4 Immigration Commission, Abstracts of Reports, 191 1, Vol. II, p. 446.
6 United States Revised Statutes, 1898, Sec. 5508.
6 Ibid., Sec. 5525.
INDIVIDUAL BARGAINING 39
penalties under statutes at present in vogue (191 1), unless
the placing or holding be for the purpose of forcing the settle-
ment of a debt, no matter how great may be the abuses per-
petrated upon the person held. In the Clyatt case the
Supreme Court decided unmistakably that the peonage
statute (R. S. 5526) referred only to cases where the return
or arrest or holding has been for the purpose of paying a
debt."*
The chief origins of the enforced indebtedness upon which
peonage rests are advances made by the employer to the
laborer, misrepresentations made to laborers by unscrupulous
employment agents, the payment by an employer of fines
and costs in cases of misdemeanor, especially violations of
vagrancy laws, and the operation of contract labor laws.
Advances to laborers might include payments for transporta-
tion, working equipment of various sorts, and any payment
in kind, such as food, clothing, or housing, accomplished
through company stores and land ownership. An example
is found in the state of Maine, where advances are made to
laborers sent out by employment agents who "misrepresent
conditions in the woods, and frequently tell the laborers that
the camps will be but a few miles from some town where they
can go from time to time for recreation and enjoyment.
Arriving at the outskirts of civilization, the laborers are
driven in wagons a short distance into the forests, and then
have to walk sometimes sixty or seventy miles into the in-
terior, the roads being impassable for vehicles. The men will
be kept in the heart of the forest for months throughout the
winter, living in the most rugged fashion and with no recrea-
tion whatever. ' ' 2 Similar practices of deceit were exercised
by the agencies which send labor from New York to the
South.
Abuses of the vagrancy laws were found to occur in the
South, involving both negro and white laborers. 3 In Florida,
for instance, "common pipers and fiddlers, common railcrs
and brawlers" may be arrested under the vagrancy law of
1 Immigration Commission, Abstracts of Reports, Vol. II, p. 446. Sec
also Clyatt v. U. S., 197 U. S. 207 (1904).
2 Immigration Commission, Abstracts of Reports, Vol. II, p. 447.
3 United States Department of Justice, Annual Report of the Attorney-
General, 1907, Exhibit 17, pp. 207-213.
4 o PRINCIPLES OF LABOR LEGISLATION
1905, and fined not more than $250 or imprisoned not more
than six months. Other states of the South make it quite
easy for arrests to be made under these statutes. The victim
is usually a negro who, for a trivial offense, or no offense at
all except being unemployed, will be arrested and charged
with vagrancy. He gets little consideration from the local
justices, and his fines are so high that he is unable to pay them.
An employer appears and advances the fine on the condition
that the laborer will work out his debt. When the debt is
worked out, and the negro is again unemployed, he will, per-
haps, be rearrested on similar charges, and in such manner
becomes virtually a peon. Occasionally a victim is not al-
lowed to pay the fine when he has the money; he will be
imprisoned and word sent to a planter, who comes in and
pays his fine and then takes possession of the unfortunate
criminal, who is obliged to work off his debt. In most cases
this is as hopeful a proceeding as borrowing from a mediaeval
usurer, for at the end of months of toil the laborer may find
himself as deeply in debt as ever. 1
Although the Immigration Commission reported that in
every state except Connecticut and Oklahoma there had
occurred sporadic cases which, if supported by legal evidence,
would constitute peonage as the Supreme Court has defined
it, nevertheless no general system of peonage, and no senti-
ment supporting it, were found. In the South, where such
practices were most frequent, prosecution by United States
district attorneys was vigorous and usually successful. 2
(2) From Master and Servant to Employer and Employee
In the master and servant stage we have the beginnings
of the contract. In some cases the contract is very elementary
in form, while in others it approximates closely the free labor
contract. It is the first expression of the idea of equality
between the laborer and his employer. The master was at
liberty to hire whomsoever he wished, and, on the other
1 M. C. Terrell, "Peonage in the United States," Nineteenth Century
and After, Vol. LXII, 1907, pp. 312, 313.
2 Immigration Commission, Abstracts of Reports, Vol. II, p. 445.
INDIVIDUAL BARGAINING 41
hand, the servant could work for any master he chose. The
master was not free to discharge his servant during the term
of the contract, nor the servant free to quit his master and
to work for another. The laborer was to serve the master
faithfully, keep his secrets, obey his lawful commands, and
guard his interests. On the other hand, the master was to
give his servant a living, to protect him and look after his
welfare.
a. Indentured Service. The slave, the serf, and the peon
perform their labor under a fixed status, and the individual
has little or nothing to say about it. The indentured servant
had in some particulars the right of a servant in making a
contract, and in other respects he was little more than a slave,
except that his chances for ultimate freedom were more real.
Indentured labor is peculiar to new countries where labor is
scarce, and where opportunity for individual enterprise is
great. To the American colonies people were shipped from
the old world to supply the need for young, healthy, energetic
laborers for the development of the new. Children were
sometimes shipped under the Elizabethan statute of appren-
tices. 1 White indentured service is mentioned in laws of all
the thirteen colonies. 2 The dates 16 19 to 18 19 may be taken
as indicating roughly the beginning and end of the system.
Competition with slavery destroyed it in the South before the
end of the eighteenth century, but it continued to exist in
the northern states into the nineteenth century. White ser-
vitude was hampered by too many considerations in favor of
the laborer; above all, the white servant's labor belonged to
his master only for a term of years, after which he was as free
as any one else, while the slave's services were property during
the term of his life.
b. Apprenticeship. Apprenticeship proper differs from in-
dentured service in that the master obligates himself to teach
the apprentice a trade. If this obligation does not appear
in the contract, or is not enforced, the apprentice becomes in
fact an indentured servant. 3 Thus many who came to
America under what purported to be apprenticeship contracts
1 5Eliz., C. 3 and 4 (1563).
2 Hurd, Law of Freedom and Bondage in the United States, 1858, Ch. VI.
'Abbott, Women in Industry, 1910, p. 331.
42 PRINCIPLES OF LABOR LEGISLATION
were in reality indentured servants. The two merged into
each other in another direction, in that an apprentice could be
bound for seven years to learn a trade which could be learned
as well in three. Four years' enforcement of such a contract
would be really indentured service and only three years'
would be true apprenticeship. 1
c. Contract Labor. Midway between indentured service, on
one hand, and the padrone system on the other, is contract
labor. This form of labor, although apparently built on free-
dom of contract, results in compulsory service or in peonage
practices. It is the kind of labor contract whose perform-
ance can be enforced at law, and has been quite common
where large numbers of natives of backward races have been
employed, as in the Hawaiian Islands, the Philippines, the
West Indies, and in South Africa, where Chinese coolies were
employed in the mines.
In many respects contract labor closely resembles peonage,
as we have previously suggested, for it places the laborer in
the position of a debtor owing services, yet there is a differ-
ence between the two. Peonage involves continuous or in-
definite service, as long as a balance of debt continues, which
may be permanent. But contract labor pertains to a term
of years only, after which the laborer cannot be compelled to
work. Furthermore, should the laborer renew his contract
because of economic pressure, still it is only for another term
of years. Contract labor results in servitude for a definite
period only, while it leaves the way open to freedom. It is
possible, however, that abuses of the system may lead very
easily to a state almost as bad as peonage, and it is this pos-
sibility that has made contract labor unpopular in freedom-
loving countries and has led to legislation aiming at its re-
striction and abolition.
In the Hawaiian Islands a condition of contract labor
existed for fifty years. In order to solve the problem raised
by the scarcity of labor combined with the opportunity for
industrial development, the employing class got a law enacted
in 1850 by which laborers over twenty years of age could
!See chapter on governmental regulation of apprentices in J. M.
Motley, Apprenticeship in American Trade Unions, Johns Hopkins Uni-
versity Studies, Vol. XXV, 1907, P- 494-
INDIVIDUAL BARGAINING 43
contract themselves to service for not more than five years.
Refusal to work on the part of such a person was punished
by imprisonment with hard labor. The man who tried to
escape and was caught could be bound to double the original
term of service. A later amendment added to the punish-
ment for a second desertion three months' hard labor for the
state. 1 This condition of contract labor was abolished in
1900 by a clause in the organic act settling the conditions of
annexation to the United States.
While the performance of labor cannot be compelled by
direct means, except where life and property are endangered,
or public necessity and convenience demand it, yet indirect
devices are invented to effect the same thing. Statutes which
deal with "employers' advances" make it a misdemeanor for
the employee to fail in the performance of his contract to
work off a debt. As imprisonment for debt has been pro-
hibited by law, the only means by which these contract labor
laws can be made effective is to couch them in such terms as
to make the laborer breaking his contract appear to be guilty
of getting money or provisions under false pretenses. Intent
to defraud must be shown, since a mere breach of the labor
contract is not a crime. 2
The law of Alabama provides that "the refusal of any per-
son who enters into such contract to perform such act or ser-
vice, or refund such money, or pay for such property without
just cause, shall be prima facie evidence of the intent to injure
his employer, or to defraud him." 3 The statute of Maine,
enacted in 1907, 4 treating of contract labor, does not state that
failure to perform the debt is prima facie evidence of intent to
defraud, but judicial interpretation has had the same result. 5
Prosecutions under such statutes, however, have been in-
validated by a sweeping decision of the United States Supreme
Court in a leading case. 6 Here the court stated: "The fact
1 Katherine Coman, "Contract Labor in the Hawaiian Islands,"
American Economic Association Publications, 3d Series, Vol. IV, 19031
pp. 492-493. 53' ■
2 Ex parte Riley, 94 Ala. 82 (1891).
3 Alabama, Code 1896, Sec. 4730, as amended 1903 and 1907.
4 Maine, Laws 1907, C. 7.
6 Immigration Commission, Abstracts of Reports, Vol. II, p. 448.
8 Bailey v. Alabama, 219 U. S. 219 (1910), at p. 242.
44 PRINCIPLES OF LABOR LEGISLATION
that the debtor contracted to perform the labor which is
sought to be compelled does not withdraw the attempted en-
forcement from the condemnation of the statute (prohibiting
peonage). The full intent of the constitutional provision
could be defeated with obvious facility if, through the guise
of contracts under which advances had been made, debtors
could be held to compulsory sendee. It is the compulsion of
the service that the statute inhibits, for when that occurs the
condition of servitude is created, which would be not less
involuntary because of the original agreement to work out
the indebtedness. The contract exposes the debtor to liability
for the loss due to the breach, but not to enforced labor. . . .
The act of Congress (Act of 1875) deprives of effect all legis-
lative measures of any state through which, directly or in-
directly, the prohibited thing, to wit, compulsory service to
secure the payment of a debt, may be established or main-
tained." This decision delivered in 19 10 invalidated laws of
like nature in other states, 1 for the court observed: "No
question of a sectional character is presented and we may
view the legislation in the same manner as if it had been
enacted in New York or Idaho. Opportunities for coercion
and oppression in varying circumstances exist in all parts of
the union, and the citizens of all these states are interested
in the maintenance of the constitutional guarantees the con-
sideration of which is here involved." 2
Until very recently seamen have generally stood on a dif-
ferent footing from other employees, for with them enforced
contracts were permitted and the law as to involuntary servi-
tude has not been applicable. In the case of Robertson v.
Baldwin 3 the court stated: "Seamen are treated by Congress
as well as by the Parliament of Great Britain as deficient in
that full and intelligent responsibility for their acts which is
accredited to ordinary adults, and as needing the protection of
the law in the same sense in which minors and wards are en-
titled to the protection of their parents and guardians." How-
1 Arkansas, Florida, Georgia, Louisiana, Michigan, Minnesota, New
Mexico, North Dakota, and South Carolina. See United States Bureau
of Labor, Bulletin No. 148, 1914, "Labor Laws of the United States."
2 Bailey v. Alabama, 219 U. S. 219 (1910), at p. 231.
3 Robertson v. Baldwin, 165 U. S. 287, 17 Sup. Ct. 326 (1897).
INDIVIDUAL BARGAINING 45
ever, since the date of that case the law of the United States
affecting seamen has been changed and more freedom has been
granted A law 1 of the 63d Congress abolishes arrest and
imprisonment as a penalty for dasertion. It goes so far as
to stipulate that it shall be unlawful in any case to pay any
seaman wages in advance of the time when he has actually
earned the same, or to pay any person for the shipment of
seamen when payment is deducted or to be deducted from
seamen's wages. This is a clear effort to prevent the obliga-
tion of indebtedness on which involuntary servitude is based.
The law goes further and provides that for quitting the
vessel without leave after her arrival at the port of her de-
livery and before she is placed in security a seaman forfeits
from his wages not more than one month's pay. This ap-
proaches the free contract perhaps as far as the conditions of
seafaring will permit. Congress regulates the nature of the
contract, the term of service, the payment and assignment
of wages, advance payments and credits, the regulation of
sailors' lodging-houses, of shipping-masters, quarters on board
ship, rations, and many other details.
Railroad employees also come within the power of Con-
gress, and it was a federal court which, while reiterating the
general right of employees to quit work, suggested by way of
dicta that "his quitting would not be of right and he would
be liable for any danger resulting from a breach of his agree-
ment and perhaps in some cases subject to criminal prosecu-
tion for loss of life and limb, by passengers or others, directly
resulting from his abandoning his post at a time when care
and watchfulness were required upon his part in the dis-
charge of a duty he had undertaken to perform." 2 Laws on
this subject, excepting that of Connecticut, connect the cessa-
tion of work with combinations and strikes, 3 and forbid en-
gineers and railroad employees to abandon locomotives under
1 United States Laws 1914-1915, C. 153; Revised Statutes, Sees.
4529, 4530, 4596, 4610, 461 1. Title: An act to promote the welfare of
American seamen in the merchant marine of the United States; to abolish
arrest and imprisonment as a penalty for desertion, and to secure the
abrogation of treaty provisions in relation thereto ; and to promote
safety at sea.
2 Arthur v. Oakes, 63 Fed. Rep. 317 (1894).
3 Delaware, Illinois, Kansas, Maine, Minnesota, New Jersey, Penn-
sylvania.
46 PRINCIPLES OF LABOR LEGISLATION
circumstances of this nature, under penalty of fine and im-
prisonment.
d. Padrone System. The padrone system is one step re-
moved from contract labor. Those who work under this
system permit a leader, the padrone, to make their contracts,
yet the agreement is not enforceable at law. It is enforced
only by their own necessities. The system started first with
Italian laborers. The padrone brought over laborers from
Italy, advancing the cost of their transportation, and hired
them out to a contractor. He rented to them the shanties
in which they lived while at work, and sold them supplies of
food.
Italian laborers formerly made contracts with their padrone
to serve him for one to three years, and occasionally for a
longer period. 1 The report of the Immigration Investigating
Commission of 1895 shows that Italians and other foreigners
had been imported "by the cargo" into the Michigan iron-
mines and worked on the padrone system in the early 'nine-
ties. 2 This was probably the time when the padroni were
the most numerous and flourishing.
Formal agreements among the laborers and the padroni are
being discontinued, and for this there are perhaps three rea-
sons. First, because the alien contract labor laws make their
agreements not only unenforceable at law, but actually punish-
able if discovered by the government. Secondly, spontane-
ous immigration from Italy has now become so great that it
is not worth the padrone's while to risk a conviction under
the contract labor laws, so that he is now merely a middle-
man. Thirdly, there is the condition of dependence on one
side and assistance on the other. The padrone does not es-
tablish his control over a man, strictly speaking, either by
force or fraud. Dr. Rossi calls the padrone system "the forced
tribute which the newly arrived pays to those who are ac-
quainted with the ways and language of the country." The
system is founded on an inequality more deeply rooted than
the usual inequality between the employer and the laborer.
The races which work under this method are ignorant and
1 Industrial Commission, Report, Vol. XV, 1901, pp. 430-432.
2 Immigration Investigating Commission, Report, 1895, p. 26.
3 Industrial Commission, Report, Vol. XV., 1901, p. 432.
INDIVIDUAL BARGAINING 47
accustomed to be commanded, and it is on their dependence
and lack of knowledge that the power of the padrone rests.
Seen from the standpoint of the immigrant, a remedy is to
be found not so much in legal rights, as in better education,
American habits of thought, efficient employment bureaus,
and more adequate administration of existing laws.
e. Imprisonment for Debt. Not only as a debtor-laborer,
but also as a debtor-consumer, the laborer receives considera-
tion. Imprisonment for debt originally had no particular
bearing on the labor contract or its history. The fundamental
idea in the ancient German imprisonment for debt is the in-
direct compulsion to pay. The debtor was to be encouraged
to pay what he owed by being made uncomfortable until he
did so. Compulsion to work had given place to compulsion
to pay. 1
The abolition of imprisonment for debt was one of the
issues raised by the early workingmen's parties in 1827.
Kentucky, the first state to abolish imprisonment for debt,
had already done so in 182 1. New York followed ten years
later, and a series of legislative and constitutional provisions
followed at intervals throughout the country. Inability to
pay one's debts, if not accompanied by embezzlement or other
fraudulent conduct, is now no longer a reason for imprison-
ment in civilized countries. 2
/. Wage Exemption. Following the abolition of imprison-
ment for debt is the wage exemption legislation which took
on large proportions in the United States in the 'forties. At
the present time every state in the union has legislation
exempting wages from attachment and execution for debt.
In other words, the authority given to the sheriff or other
administrative officer to seize from the property of the de-
fendant (debtor) a sufficient amount to satisfy the judgment
in favor of the creditor, is invalid when applied to wages
under the exempt amount. The persons covered by these
laws are differently specified in different states. Several pro-
vide for exemption of "all laborers, mechanics, and day labor-
l Th. Niemeyer, "SchuMhaft," Handworlerbuch der Staatswissen-
schaften, Vol. V, 191 i.P- 593- . . . ,, . _,
2 An important discussion of existing imprisonment for debt in Eng-
land is found in E. A. Parry, The Law and the Poor.
48 PRINCIPLES OF LABOR LEGISLATION
crs," as in Georgia; "residents of the state," as in Idaho;
"resident debtor," as in Iowa; all "householders," as in In-
diana; "judgment debtor," as in New York; and "all who
support themselves and their families by the labor of their
hands," as in Wisconsin.
The amount of wages exempted varies somewhat from state
to state. Some exempt sixty days' wages, others thirty
days', while still others stipulate a certain percentage of wages
due as exempt, or state how large a per cent, may be col-
lected for a given period. The exempted amount runs from
$20, as in Massachusetts, to not more than $100, as in the
District of Columbia. The usual period of exemptions, in
so far as the time is specified at all, is the two months pre-
ceding attachment. In all cases it is clear that the purport
of the laws is to protect the minimum earnings of the work-
ingman who has nothing to depend upon except his wages.
Wage exemption applies not only against execution or at-
tachment, but also against garnishment. 1 This is a proceed-
ing by which the plaintiff in an action seeks to reach the rights
and effects (wages in this case) of the defendant by calling
into court some third party (employer) who has such effects
(wages) in his possession or who is indebted to the defend-
ant. 2 Should the employer unwarrantedly make payments
from his employee's wages, he will still be left liable to the
employee himself for a second payment of the wages. 3
g. Homestead Exemption. All American states have pro-
vided that the means of earning a livelihood, that is, the
tools of one's trade or profession, shall be exempt from execu-
tion. Along with the exemption of personal property goes
homestead exemption. This legislation is designed to keep
intact the family unit in society, to prevent entire destruction,
and to encourage a debtor who has been reduced to the
last term to try again. However, these laws are not for
laborers alone, but for any person. In most states a man
must be a householder or the head of a family in order to get
1 Clark, Law of the Employment of Labor, 191 1, p. 56.
2 Cyclopcedia of Law and Procedure, Vol. XX, 1901-1914, p. 978.
"While a garnishment proceeding accomplishes the same purpose as an
attachment or execution, it is in no sense a levy on property, but a
judicial proceeding by which a new judgment is obtained."
3 See Clark, Ibid., p. 55, and cases cited.
INDIVIDUAL BARGAINING 49
the exemption, but in a few states any person may be entitled
to the exemption. The limitations on the homestead exemp-
tion arc in both acreage and value. Rural homesteads may
vary in acres from forty to ioo, and city homesteads from one
lot to one acre (five acres in one state) . Maximum monetary
limits are $500 to $5,000.
In 1848 English statutes provided only that tools and
actual necessaries of judgment debtors were not to be seized
in execution. In 1883 a statute carried the exemption a little
further, so as to include "the tools (if any) of his trade and
the necessary wearing - apparel and bedding of himself, his
wife and children, to a value, inclusive of tools and apparel
and bedding, not exceeding twenty pounds ($100) in the
whole." 1 These provisions have parallels in most of the
British colonies, and the exempted property amounts to
about the same. Nowhere, however, is the exemption as
liberal as in the United States. Homestead exemptions are
peculiar to the United States, but the tools of a debtor's
trade, at least, are exempted in most English-speaking
countries.
h. Assignment of Wages. Assignment of wages grows out
of the legal act of transferring or making over to another of
the whole or part of any property, real or personal, in pos-
session or in action, or of any estate or right therein. But if
the wage-earner is to have effective exemption of wages from
attachment and garnishment, it is consistent that he be pre-
vented from making an assignment of his future wages.
Assignments of unearned wages are safeguarded in various
ways, as by requirement that they must be recorded, that
copies must be filed with the employer, or even that the
employer's consent must be obtained, or that the wife must
join in the husband's assignment, or vice versa. Missouri
affords a good example of effort to modify this evil. An
act of 191 1 provides that "all amounts of wages, salaries,
or earnings must be in writing with the correct date of the
assignment and the amount assigned, and the name or names
of the party or parties owing the wages, salaries, and earnings
so assigned, and all assignments of wages, salaries, and earnings
'46 and 47 Vict., C. 31, Pt. IV, Sec. 44.
4
So PRINCIPLES OF LABOR LEGISLATION
not earned at the time the assignment is made shall be null
and void." Assignments to secure loans or future advances
arc invalid in Georgia and Massachusetts, and all assignments
of future earnings arc prohibited in Indiana.
2. The Laborer as Creditor
Modern industry is conducted mainly "on credit." The
employer is the middleman, whose creditors are those who
advance the capital he uses, and whose debtors are those who
buy his product. When the laborer starts to work for him,
he also becomes, for a time, a creditor. He contributes his
services in advance of compensation. He is a temporary in-
vestor in the business. While he works he passes over to the
employer the title to his product, and retains a claim for wages.
When his wages are paid his investment is liquidated.
Other investors advance money or "credit." Their con-
tracts are secured by notes, bonds, mortgages, giving to them
a preferred claim on the property and earnings of the busi-
ness. They invest "capital" — the laborer invests "labor."
Laws regulating the time, place, and medium of payment,
laws providing for mechanics' liens, wage preference, and
so on, are intended to guarantee to the laborer as creditor,
regardless of contract, that certainty of payment which the
capitalist as creditor secures in the ordinary enforcement
of contracts.
(i) Time of Payment
Legislation has not until recently 1 ventured to interfere
directly and set the amount of wages, but it makes the amount
of wages greater or less by indirect methods. Whatever the
nominal amount may be, the frequency of the time of pay-
ment is a matter of concern to the laborer. The longer he
must wait for his wages the greater is the extent of his need
for credit, and, accordingly, the higher will be his cost of
living and the lower his real wages. The advantages of fewer
1 See Chapter IV, "The Minimum Wage."
INDIVIDUAL BARGAINING 51
pay days are obvious to the employer. His cost of book-
keeping is less, and his required circulating capital will be less.
Over the entire world in industrial states there are statutes
requiring a regular pay day, which may be once a month,
semi-weekly, or weekly. Many of the European laws are so
phrased that modifications may be introduced according to
local custom. 1 The Swiss government makes it incumbent
upon the master to pay wages at any time according to work
done, so as to enable the servant to meet any special need, and
the interpretation of the law is left to administrative officers. 2
Two-thirds of the states of the United States, and Hawaii,
have laws dealing with time and mode of payment of wages.
Most of these laws provide for semi-monthly payment, and
most of them stand without being contested in the courts
to determine their constitutionality. Some cases have reached
the courts, and different decisions have been rendered.
In favor of the validity of such laws, it has been argued that
semi-monthly payment of wages is required by the actual
necessities of employees, and that regular payment of wages
at short intervals is much more a matter of life and death to
a workingman with a family dependent on him than to the
employing corporation. 3 The purpose of the Rhode Island
weekly payment law was laid down by the court as being pro-
tection of the worker from "the greed of corporate capital."
Poverty and weakness, it was said, "can wage but an unequal
contest with corporate wealth and power"; and the act was
considered to be for the prosperity and comfort of the work-
ingmen, who depend entirely on their weekly wages, and are,
like other people, obliged to pay for credit. 4
The cases in which laws relating to time of wage payment
have been held unconstitutional show, as might be expected,
that less consideration was given to the practical economic
facts of the situation. In these cases appears the usual argu-
ment that the liberty of contract of the workingman is en-
1 For example, the Netherlands, Bulletin of the International Labor
Office, Vol. 11, 1907, P- 4 11 -
2 Federal act to supplement the Swiss federal code, March, 191 1,
Bulletin of the International Labor Office, Vol. VI, 191 1, p. 96.
3 Arkansas Stave Co. v. State, 94 Ark. 27 (1910).
* State v. Brown & Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. 286 (1892), at
p. 252.
5 a PRINCIPLES OF LABOR LEGISLATION
croached upon by legislation. In the case of Johnson v.
Goodyear Mining Co. 1 an indignant protest was raised by
the court against any interference with the liberty of con-
tract. "The workingman of intelligence," it was said, "is
treated as an imbecile. Being over twenty-one years of age,
and not a lunatic or insane, he is deprived of the right to
make a contract as to the time when his wages shall fall due."
There are several states which legislate to the effect that
wages shall be paid during working hours. This accomplishes
two things: it saves the time of the employee and precludes
payment in bar-rooms. In Austria the time for payment of
wages to mine workers is reckoned within the duration of the
shift. 2 In Massachusetts, where there are ioo or more per-
sons employed in any establishment, wages are to be paid
during working hours. In France payment of wages must
not be made on days kept as rest days for employees. 3 The
law of Greece is fairly representative of those of some other
countries: it provides that wages shall be paid not later than
the time when daily work is concluded, and that in under-
takings with more than 200 workers the manner of paying
wages may be regulated by administrative order. 4
Most of the states and countries provide that an employee
shall be paid immediately upon discharge, and for delay
thereafter is entitled to interest charges — in the case of Iowa
$1 a day penalty up to twice the amount of the wages due.
In some cases this penalty is 5 per cent, a year to be added
for the cost of the delay, and the attorney's fee if his services
are necessary to procure wages withheld from an employee.
When an employee quits, the law generally stipulates that
he shall be paid at the next regular pay day.
(2) Place of Payment
The evil attached to the payment of men in saloons needs
no elaboration, and it is to be noticed that this evil is partly
1 Johnson v. Goodyear Mining Co., 127 Cal. 4, 59 Pac. 304 (1899).
2 Bulletin of the International Labor Office, Vol. VII, 1912, p. 246.
3 Lois, Decrets, ArrUes concernant la Reglementation du Travail, Bk. I,
Ch. II, Sec. II, Art. 46.
4 Bulletin of the International Labor Office, Vol. VII, 1912, p. 290.
INDIVIDUAL BARGAINING 53
taken care of in some places by providing that wages shall
be paid upon the premises, as in Servia and Berne. This
coincides with most of the legislation of the American states
on the subject. California and Nevada, however, specifically
provide that payment of wages shall be made to no one in
bar-rooms except it be those employed therein. Austria,
Belgium, France, Germany, 1 and Great Britain 2 have all
legislated against payment of wages in public houses and
taverns.
(j) Basis of Payment
In the United States there are some statutes that prohibit
the screening of coal before it is weighed, the loss of coal
through the screen being regarded as causing an unjust loss
to the miner, whose contract calls for payment by the weight
of coal mined. The validity of such laws has been both up-
held and denied by different state courts, but in the case of
McLean v. State of Arkansas 3 the Supreme Court held the
law to be within the police power of the states.
(4) Medium of Payment
Carlyle declaimed against a modern civilization whose only
bond of union is the cash nexus. Yet, from a different point
of view, it may be said that liberty depends on cash. Indeed,
the transition from slavery to freedom is a transition from
payment in lodging, board, and goods, or "truck," to pay-
ment in legal tender or in a medium convertible into money
on demand at its face value. Cash means freedom. It per-
mits the wage-earner to buy what and where he wants. It
also means earnings, for it exposes and corrects unwarranted
deductions, such as high prices, through bookkeeping ac-
counts.
a. ''Living In." Under systems of slavery, serfdom, in-
1 Great Britain, Departmental Committee on Truck Acts, Report,
1908, pp. 96, 97.
2 46 and 47 Vict., C. 31 (1883).
3 McLean v. Arkansas, 211 U. S. 535 (1906).
54 PRINCIPLES OF LABOR LEGISLATION
(li'nturcd service, and apprenticeship the laborer lived on the
premises of his master. The most complete survival of these
systems in modern industry is known in England as "living
in," where the employee receives part payment in board and
lodging at his place of employment. The system is en-
countered in all countries, and is characteristic of domestic ser-
vice. Very often "living in" is made a condition of employ-
ment, cither express or implied, and the board and lodging
accommodations provided are often inferior and inadequate.
The system may rob the employees of their sense of personal
responsibility and check individuality and independence of
character. There is frequently no freedom of complaint, for,
if the workers venture to remonstrate about food or lodging,
they render themselves liable to dismissal and "spoiling" their
references. In Great Britain the committee on the truck
acts in 1908 recommended regulations as to accommodations
provided in "living in" establishments, but did not seem to
have a clear case for the abolition of the system. However,
a minority report advocated its entire abolition. 1
In Berne the law of 1908 2 requires that food provided for
the employees must be sufficient and wholesome and that
the accommodation must satisfy all sanitary requirements.
In Austria the administrative authority may determine by
order that, in the case of undertakings of a certain kind or
situation in certain districts it shall be unlawful to provide
board or lodging for the employees as a part of their remu-
neration. 3 In South Australia the occupier of an establish-
ment and the members of his family are prohibited from lodg-
ing and boarding adult persons in his service, in the case of
those whose wages are fixed by wage boards, exception being
made in the case of hotels, clubs, restaurants, and the like. 4
In the United States the subject of "living in" has not yet
come into the realm of legislation, but it exists in hotels,
restaurants, bakeries, and clubs.
b. Company Houses and Labor Camps. The employer may
1 Great Britain, Departmental Committee on the Truck Acts, Report,
1908, Vol. I, p. 78; Minority Report, Vol. I, p. 84.
2 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 122.
3 Ibid., Vol. V, 1910, p. 203.
4 Ibid., Vol. VII, 1912, p. 20.
INDIVIDUAL BARGAINING 55
build "company houses" for his workmen which they must
occupy, and the rent is then deducted from wages. Fre-
quently these houses are better than those which the em-
ployees would provide, but they have counteracting dis-
advantages in contractual ties of dependence. In New York,
where factory operatives are given living quarters, these may
be regulated by the industrial commission, which has power
to enter and inspect. 1 Labor camps for certain kinds of work
have received attention in California, 2 New York, 3 and
Hawaii. 4 In the case of California the state board of health
is ordered to condemn any camps which are dangerous to
public health.
c. Company Stores. The "truck" system, or "truck" in
English usage, is the term which denotes payment in kind,
or otherwise than in cash. 5 In the United States this is
generally treated under such terms as "store orders," "pay-
ment in scrip," or "company stores." Payment in alcoholic
drinks would scarcely be tolerated in the United States.
This is not because of laws directly forbidding it, for there
are none, but American industries are united in keeping liquor
from their employees and many of them refuse to hire work-
men who use liquor. However, payment in such a manner is
indirectly prevented by statutes which call for payment in
cash and payment on the premises. Laws regulating or pro-
hibiting company stores, and disallowing coercion as to em-
ployees' trading, have the same effect.
Legislation respecting the truck system falls into three
classes: (1) laws that would eliminate it altogether, at least
in business establishments where it is a real evil, such as
mining, manufacturing, and railroad corporations; (2) laws
which permit the system, but which regulate the prices
charged and the quality offered; (3) laws which allow the
institution to exist, but which endeavor to eliminate coercion
of employees to make use of the system.
Among the first class would come the laws of Colorado,
1 New York, Laws 1913, C. 195.
2 California, Laws 1913, C. 182.
' New York, Laws 1913, C. 195.
4 Hawaii, Laws 191 1, No. 123.
B Great Britain, Departmental Committee on the Truck Acts, Report,
1908, p. 4.
56 PRINCIPLES OF LABOR LEGISLATION
Maryland, Massachusetts, New Jersey, New York, and Penn-
sylvania, and France of the European countries — the latter
having, perhaps, the most complete law aiming at the aboli-
tion of the entire system. 1
The second class includes Connecticut, Indiana, and Vir-
ginia. Here prices must not be unreasonable, or higher to
the employees than to others who are not employees. Of
course, if the town should be owned by the corporation, the
law could not have much effect, and, for that matter, no anti-
truck legislation can accomplish much for the laborer in a
town where the land and buildings are all owned by the
employing corporation.
In the third class would fall the laws of Iowa, Kentucky,
Montana, Nevada, New Mexico, Ohio, Oregon, the Philip-
pines, Porto Rico, Texas, Utah, Washington, West Virginia,
and the laws of practically all the foreign countries, omitting
Holland and Italy, which have no such general laws.
The last two groups have this in common, that both regu-
late prices. Although penalties provided seem to be ample,
yet in the United States the administrative features are weak,
as typified by the case of Colorado, 2 where, if the attorney-
general should fail, neglect, or refuse to act after a demand by
a responsible party, any citizen has a right to institute pro-
ceedings upon giving bonds for cost of suit. Obviously, the
workman is in no position to give bonds or to bring suit, for
he can neither afford the expense nor the loss of the job
which such a procedure would entail. 3
(5) Deductions
The problem of deductions from wages involves (1) de-
ductions in respect to fines, (2) deductions as payment for
1 Bulletin of the International Labor Office, Vol. V, 1910, p. 377; Act
suppressing truck shops and prohibiting employers from selling, directly
or indirectly, to their workmen and employees supplies and goods of
any kind, March 25, 1910.
2 Colorado, Revised Statutes, 1908, Sec. 6995.
3 Respecting the variety of decisions on the constitutionality of this
class of legislation, see Freund, Police Power, 1904, pp. 305-308; Clark,
Law of the Employment of Labor, pp. 65-72; Stimson, Handbook to the
Labor Laws of the United States, 1896, pp. 104-110.
INDIVIDUAL BARGAINING 57
damages, (3) deductions for use of material and tools, (4)
deductions for benefits.
Fines are imposed, presumably, for disciplinary reasons, and
vary in application and amount in different establishments
and with the caprice of the individual employer. They may
not always be a real deterrent, but may on the other hand
lead to carelessness, suggesting to the worker that he has paid
for what he has done. They may be unfairly imposed, creat-
ing a sense of injustice and irritating the workers, and they
may even prove to be a source of petty profits to the unscru-
pulous employer. At all events, they decrease the income of
the wage-earner.
Deductions as payment for damages may be for bad or
negligent work, injury to materials and to other property of
the employer. Abuses are very general, for the employer de-
termines the amount of damage done and puts the price on
materials spoiled. It is humanly impossible to do perfect
work, and no matter how good a worker may be at his trade,
faults will occur at times. Such faults are part of the manu-
facturers' risk and should be dealt with as such. The em-
ployer is himself often to blame for setting an inexperienced
hand to do work for which he is not competent.
The case of charges for materials and tools used by em-
ployees involves the same principle as in the previous case.
This system is intended to secure economy in the use of ma-
terial by making the worker responsible. However, from the
point of view of the worker the system is objectionable be-
cause of the possibility of overcharge, which no regulation,
however strict, can altogether prevent.
Deductions for benefits received, such as medical atten-
tion, hospital care, and sickness insurance, are allowed by all
states and countries, but some provide (as, for instance, New
South Wales and Western Australia) that the deduction must
not exceed the value of the thing supplied, and, when not
stated, this is generally implied by all countries. Usually,
also, these deductions from wages are in pursuance of a
previous contract. Of the United States, Indiana, Iowa,
Maryland, Michigan, New Jersey, Nevada, and Ohio specifi-
cally legislate against forced contributions for certain enu-
merated benefits as a condition of employment. With the
58 PRINCIPLES OF LABOR LEGISLATION
possible exception of Ohio, the administration of these laws
is left to the courts.
A corporation may furnish insurance, lessening many hard-
ships of life for the workingman and his family; but this in-
surance is enjoyed only as a result of continuous employment,
which in turn often involves oppressive dependence. Espe-
cially is this true when after a number of years the working-
man has acquired rights which may be lost by change of
employment. Thus the burden may become great with in-
creasing years, as new employment with insurance becomes
more and more difficult to secure. 1
Provisions are found in some laws, in connection with
employers' liability, and sometimes confined to railroads,
which regulate or prevent the payment of benefits to injured
employees as a means of escaping from such liability. About
half the states, the Philippine Islands, and the federal govern-
ment have enacted that no contract of insurance or relief
benefit shall constitute a bar to action by an employee for
damages in case of injury or death. 2 Florida directly says
that the existence of a relief department, by which the em-
ployer pays benefits to the workers, shall not relieve such
employer from responsibility in case of death. 3 It is some-
times added, however, that the employer may set off against
such a claim any sums he has contributed as benefit. 4 In
Georgia the payment of wages up to $100 on the death of an
employee is a sufficient release on the employer's part. 5
In the act of 1896 6 the first attempt was made in England
to protect the worker from harsh and unreasonable fines.
This act provided that there must be formal agreement for
the fines; that the fine must be for something which causes,
or is likely to cause, damage or loss to the employer or inter-
1 Ely, Property and Contract, 1914, Vol. II, p. 714.
2 Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia,
Indiana, Iowa, Maine, Massachusetts, Michigan, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Mexico, New York, North Carolina,
North Dakota, Ohio, Oklahoma, Philippine Islands, South Carolina,
Texas, Virginia, Wisconsin, Wyoming, United States.
3 Florida, Laws 1914, C. 6520.
4 Alabama, Georgia, Indiana, Michigan, Montana, Nebraska, Nevada,
North Carolina, North Dakota, Ohio, Texas, Wisconsin, United States,
5 Georgia, Code 1910, Sees. 3 I 34~3 I 3 6 -
6 59 and 60 Vict., C. 44.
INDIVIDUAL BARGAINING 50
ruption or hindrance to his business ; that it must be fair and
reasonable, having regard to all the circumstances of the
case; that written particulars must be given to the worker
each time a fine is exacted; and, finally, that there shall be
a register of fines open to inspection. 1
In the United States there is little legislation dealing with
deductions as fines— a dozen states in all. 2 Michigan pro-
hibits fines altogether, while Massachusetts says fines shall
not be levied except for imperfect work, 3 and Louisiana pro-
hibits them except when employees wilfully or negligently
damage goods or property of the employer. Arkansas and
Connecticut regulate discount of wages because of early pay-
ment. The rest of the states permit no deductions unless in
accordance with certain procedure and with full consent of
workers. The Australasian countries have no legislation on
fines. In Austria, Belgium, Germany, and Holland fines are
regulated in pursuance of a previous contract or published
rules. In France fines cannot exceed one-fourth, 4 and in
parts of Switzerland not more than one-half, of the daily
wage. 5 In both these cases as well as in Holland the fines
must go toward a workers' benefit fund.
A clause dealing with deductions, not levied for inferior
work or for destruction of property, appears in Massa-
chusetts, 6 where no deductions are to be made from the wages
of women and minors when there is a stoppage of work owing
1 Great Britain, Departmental Committee on the Truck Acts, Report,
1908, Vol. I, p. 6.
2 Arkansas, Connecticut, Hawaii, Indiana, Louisiana, Maryland,
Massachusetts, Michigan, Mississippi, New Jersey, Nevada, Ohio, and
T*cx<is
: Massachusetts, Laws 1909, C. 514, Sec. 114. Under the terms of
this act fines for imperfect weaving may be levied only after the imper-
fections have been pointed out and the amount agreed upon by both
parties. Apparently these provisions did not sufficiently protect the
weavers, for in 191 1 another act was passed stating that "No employer
shall impose a fine upon an employee engaged a1 weaving for imperfec-
tions that may arise during the process of weaving" (Laws 191 1, C. 584)-
The court, however, rendered the new law nugatory by its limited in-
terpretation of the word "fine." (Commonwealth v. Lancaster Mills,
212 Mass. 315, 98 N. E. 364 [1912].)
4 Great Britain, Departmental Committee on the Truck Acts, Report,
1908, Vol. I, p. 95.
6 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 125.
6 Massachusetts, Laws 1909, C. 514, Sec. 119.
6o PRINCIPLES OF LABOR LEGISLATION
to a breakdown of machinery, and the workers are not allowed
to leave the mill. Foreign countries, while they sometimes
limit the extent of deductions for materials used, still do not
prohibit them. Although the labor codes generally state that
prices shall not be excessive, this is a goal reached only by
effective administration.
(6) Mechanics' Liens and Wage Preference
The idea that wages are to receive special treatment, that
they are to be paid before other claims, that security is to
be given for their payment, and that they shall be. exempt up
to a certain amount from execution, underlies legislation on
mechanics' liens, on wages as preferred claims, and on wage ex-
emption. The last of these subjects is treated elsewhere; x here
we consider the preferential treatment of the laborer as creditor.
Mechanics' lien laws represent a stage in the progress to-
ward wage preference, but they should not be confused with
it. They are founded on the still older practice of giving
contractors and builders a claim for payment on houses they
built and the land that these were built on.
In 1830 the first mechanics' lien law was passed by the New
York legislature 2 and was based on the following considera-
tions, set forth in a committee report:
"The committee are credibly informed that the severe and
heavy losses sustained by the laboring interests have arisen
far more frequently from insufficient, reckless contractors,
having nothing to lose, than from contractees. . . . They
would be distinctly understood, declaring it as their un-
divided opinion that a mortgage given to secure the payment
of money lawfully borrowed, the justice of which no one will
presume to dispute, is not a more equitable claim than that
of the mechanic and laborer on the dwelling-house and other
buildings, and ground on which the same are erected, so far
as their claim and demand can be correctly ascertained." 3
Mechanics' lien legislation seeks to give the laborer a claim
for the payment of what is due to him, backed by the security
1 See "Wage Exemption," p. 47.
2 New York, Laws 1830, C. 330.
3 New York Assembly, Documents, 1830, No. 24.
INDIVIDUAL BARGAINING 61
of the structure or land on which he has been employed. It
exists in all the states, and extends to labor performed on
public works, railroads, in mines, and on the land, as well as
to lumbering, construction and repair of vessels, sawmilling,
and other occupations. Such liens are generally ranked as
coming before other payments; and in many cases where
contractors and subcontractors are entitled to benefit in a
similar way, the wage-earner's claim is put first. 1
The next step was the provision that wages should be con-
sidered as preferred claims. Nearly all the states and the
federal government have laws providing that in cases of
assignments, administrations, and receiverships due to death
or bankruptcy, the wages of servants and employees, up to a
definite sum and for work done within a limited time, shall be
paid next after fees, costs, and taxes. 2 France has a law giving
preference to wage payments. 3 Great Britain and her colo-
nies include in their bankruptcy laws preferential payment
claims, providing usually that salaries of clerks not exceeding
S500 and wages of laborers not exceeding $125 shall have
equal claim to payment with taxes and expenses. The British
bankruptcy law 4 now includes national insurance contribu-
tions and amounts due for workmen's compensation in this
category. New Zealand has a bona fide contractors' and
workmen's lien act resembling the American legislation. 5
3. The Laborer as Tenant
(7) Classes of Agricultural Workers
Of the 30,000,000 males over ten years of age engaged in
gainful occupations in 19 10, 10,700,000, or more than one-
1 California, Colorado, Idaho, Illinois, Louisiana, Nevada, New Jersey,
New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania,
Washington, West Virginia.
2 Alabama, Arizona, Arkansas, California, Colorado, Connecticut,
Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana,
Maryland, Maine, Massachusetts, Michigan, Minnesota, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico,
New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island,
South Dakota, Pennsylvania, Texas, Utah, Washington, Wisconsin, the
Philippine Islands, and the United States.
3 Lois, Decrets, Arretes concernant la Reglementation du Travail, Bk. I,
Ch. II, Sec. II, Art. 46, 47. 4 4 and 5 Geo. 5, C. 59. 19*4-
*New Zealand, Statutes 1892, No. 25.
6a PRINCIPLES OF LABOR LEGISLATION
third, were employed in agriculture. Of this number some-
thing less than 4,000,000 were owners operating their farms.
More than 2,000,000 were tenants, 1 and 4,700,000 were la-
borers working for owners and tenants. But these figures do
not represent the actual proportions of wage-earners and em-
ployers in the sense of the wage bargain as understood in
manufactures and other industries. Of the 4,700,000 laborers,
2,100,000 were members of the family of the owner or tenant,
and, therefore, their labor contracts do not exhibit the strictly
business relation of employer and employee in the modern
wage bargain. Such labor problems as they present, from
the standpoint of legislation, are mainly those of child labor.
a. Hired Laborers. The remaining 2,600,000 are hired la-
borers, and to them would be applicable labor laws similar
I. > those enacted to protect laborers in other industries. How-
ever, as a matter of fact, labor legislation in the United States
has had very little to do with farm labor. Laws like those
regarding workmen's compensation, safety, health, or hours
of labor sometimes either specifically exclude agricultural
labor from their operation or are not applicable. Other laws,
such as laborers' liens, wage exemption, prohibition of in-
voluntary servitude, and the like, are so general or funda-
mental that they apply to farm labor.
Hired laborers are of two classes, considerably different in
their condition. About 200,000 of those enumerated appear
to be "casual" laborers, hired usually by the day, and 2,400,-
000 arc hired by the month or year. The number of casual
laborers is doubtless greatly underestimated, for the Census
enumeration is made in April, whereas the largest number of
this class of laborers is employed during the harvest seasons
from July to November. They are enumerated in April in
other industries, and are the migratory laborers who appear
in the logging-camps and ice harvests, as well as temporary
laborers in other occupations.
The number of 2,400,000 farm hands regularly employed
is also understated, because an uncertain number of tenants
1 Thirteenth Census of the United States, Vol. IV, 1910, p. 302. This
figure is obtained by combining the estimates for agriculture and animal
husbandry. The Census distinguishes the number of farms operated by
owners and tenants, not the number of owners and tenants; hence these
numbers are estimated,
INDIVIDUAL BARGAINING 63
are really hired laborers under a special form of tenant con-
tract and should be classed as employees rather than tenants.
b. Tenants. The Census gives the numbers of two kinds
of tenants, 712.000 "cash" tenants and 1.528,000 "share"
tenants. 1 By cash tenant is meant not one who pays rent
in actual cash, but one whose rent is definitely fixed and cer-
tain and is stipulated in advance in the contract either in
dollars, in labor, or in products. It may be $7, ten bushels of
•wheat, or 100 pounds of cotton per acre. Evidently the
"cash" tenant is a small capitalist, a contractor, or an em-
ployer, since he invests his own money or labor and takes all
of the risks of the business. His gains are profits rather than
wages; his bargain with the landlord is a price bargain, not
a wage bargain.
The share tenants are more difficult to classify. They may
be either small capitalists or simply farm laborers, and the
Census does not distinguish between the two. A share tenant
pays the landlord as rental a certain share of the product, as
one-half, one-third, or one-quarter. In making such a con-
tract the tenant would appear to be a contractor or capitalist,
who takes, not indeed the whole risk of the business, but a
part of the risk. Such is the case if he actually invests his
own capital, such as horses, cattle, implements, and so on, and
runs the risk of losing his capital on the chance of increasing
it. He would figure the outcome as profit or loss.
c. "Croppers." But if, on the other hand, the tenant
"invests" nothing but his own labor, and the landlord fur-
nishes all of the working capital, then the landlord is the
capitalist-employer, the tenant is a laborer, and the bargain
is a wage bargain. His wages, however, are not the stipulated
daily or monthly wages received by a "hired man," but they
are contingent wages, similar to those paid to a piece-worker,
or, rather, to a sailor on a whaling-ship who receives a share
of the product at the end of the voyage. This system of wage
payment is spoken of as "product sharing," to distinguish it
from "profit sharing." 2
1 Thirteenth Census of the United States, Vol. V, 1913, p. 97- This
includes among "share" tenants tho e given in the "leases" as "share-
cash" — an intermediate i I
*D. P. Schluss, Methods of Industrial Remuneration, l8yl, p. 249.
64 PRINCIPLES OF LABOR LEGISLATION
The terms "cropper" and "cropping contract" will be
used herein to designate this kind of labor- tenant under
the system of share tenancy. The terms originated in the
southern states, where share contracts are most prevalent
and where they account for the high percentage of tenancy.
In 1910, 66.8 per cent, of the tenancy in the South was
share tenancy, including both farmers and laborers on shares,
while only 31.6 per cent, of northern and 1.6 per cent, of
western farms were operated on a system of share tenancy. 1
In popular usage, the term "cropper" includes both the share
fanner, or small capitalist, and the share laborer. Both are
croppers. The courts, however, have settled upon the term
"cropper" to indicate the laborer, 2 and, adopting this usage,
we can distinguish the cropper, as a laborer whose wages are
measured by a share of the product under the guise of a
lease, from the share tenant, as a small capitalist paying rent.
No reliable estimate can be made of the number of croppers.
Indeed, the amount of capital owned by the farmer may be
so small that he would be looked upon in other industries as
scarcely more than a mechanic furnishing his tools and taking
out work on a contract. The distinction is made in the laws
of Alabama 3 which define a share tenant as one who owns his
team, and the cropper as one whose landlord owns the team.
The law of Texas, enacted in 1915, 4 is the first American law
designed to regulate the rents of share tenants. It attempts
to prevent the landlord from charging more than one-half
of the value of the product if he furnishes everything except
labor, and more than one-third of the grain and one-fourth of
the cotton if the tenant furnishes all of the operating capital.
Thus it distinguishes and regulates both the rent of the
fanner and the wages of the cropper.
In other states, where the legislature has not attempted to
standardize or regulate the share contracts, the courts have
been compelled to decide in each case as it arises whether the
laborer is a cropper working for wages under a labor contract,
1 Thirteenth Census of the United States, Vol. V, 1913, p. 113.
2 Steel v. Frick, 56 Pa. St. 172 (1867); Harrison v. Ricks, 71 N. C. 7
(1874); Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888); Hammock v.
Creekmore, 48 Ark. 264 (1886).
3 Alabama, Code 1907, Sees. 4742, 4743.
4 Texas, Laws 1915, Article 5475 (3225).
INDIVIDUAL BARGAINING 65
or a tenant-farmer paying rent under a lease. If he is a
cropper, then, in case of dispute, he would be awarded what
similar laborers in the locality receive as wages, regardless of
the value of the crop. If he is a tenant-farmer he is awarded
his share of the crop, regardless of what he might earn as wages.
In order to decide the point, the courts look into the con-
tract to discover which party has the control and direction
of the farming operations and the legal possession of the crop
at the end of the season. In brief, if the landlord gives orders
as to cultivation, and has legal possession and the right to
divide the crop and give the tenant his share, the contract is
a labor contract. 1 But if the tenant is "his own boss" and
has legal possession of the crop, and gives the landlord his
share, the contract is a lease. 2 Generally it turns out that,
in proportion as the tenant advances a larger and larger share
of the working capital, the contract which he is able to make
is a lease and gives him not only a larger share of the product,
but also a chance to make a profit in addition to wages; while
the smaller the proportion of capital which he advances, the
less is his share and the more nearly the contract becomes a
labor contract.
If the contract is a lease, the landlord has a preference lien
on the crop for his rent. 3 If it is a labor contract, the laborer
has a laborers' hen on it for his wages. 4
(2) Agricultural Labor Legislation
The foregoing distinctions indicate differences in the kind
of legislation needed to protect agricultural labor compared
with that protecting industrial labor. The one modifies main-
ly the law of landlord and tenant, the other that of employer
1 Shoemaker v. Crawford, 82 Mo. App. 487 (1900); Kelly v. Rummer-
field, 117 Wis. 620 (1903); Bowman v. Bradley, 151 Pa. St. 351 (1892);
Chaser. McDonnell, 24 111. 237 (i860); Cutting v. Cox, 19 Vt. 5 T 7 (1847).
2 Taylor v. Bradley, 39 N. Y. 129 (1868); Neal v. Brandon, 70 Ark.
79, 66 S. W. 200 (1902); Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888).
3 Randall v. Ditch, 123 la. 582, 99 N. W. 190 (1904); Hooper v. Haines,
71 Md. 64, 18 Atl. 29, 20 Atl. 159 (1889); Keolegr. Phelps, 80 Mich. 466,
45 N. W. 350 (1890); Wilson v. Stewart, 69 Ala. 302 (1881); Noe v.
Lay ton, 69 Ark. 551, 64 S. W. 880 (1910).
* Grisson v. Pickett, 98 N. C. 54, 3 S. E. 921 (1887).
5
66 PRINCIPLES OF LABOR LEGISLATION
and employee. Farming is, for the most part, a small-scale
industry, and there is opportunity for individuals to rise into
the. position of independent owners. Beginning, perhaps, as
a casual laborer, the next step is that of the farm laborer hired
by the month or by the year, and living with the family of the
owner. Next, with a family of his own, the steps upward are
cropper, share tenant, cash tenant, owner with mortgage, and,
finally, ownership unencumbered. Legislation may aid or
obstruct this upward movement.
If the share tenant, whether cropper or farmer, is not per-
mitted to acquire any title to such permanent improvements
as he adds to the land, his condition is practically the same
as that of the wage-earner, who has no title to his own prod-
uct, Like the laborer, he tends to be kept permanently in
that class. This is the condition of croppers and share
tenants in the United States, and the result is seen in their
frequent movement from farm to farm. Such tenants, with-
out title to their "savings" in the form of improvements, can
do but little in the way of accumulating the capital necessary
to rise to the higher steps, and their instability and lack of
incentive are equally serious factors in their own deterioration
and in that of the soil.
This condition received legislative attention first in Eng-
land. There had been a strong agitation favoring the enact-
ment of legislative measures to compensate tenants for im-
provements made on the landlord's estate, but not until 1850
was a bill introduced into Parliament favoring a reasonable
allowance for such improvements. The bill did not pass, but
similar measures were brought before that body several
times, and in 1875 an act was obtained stipulating the con-
ditions under which an outgoing tenant was to be paid for
improvements. However, no provision was made compelling
landlords to contract under the law, and as a consequence the
statute was ineffective.
In 1883, a new bill, known as the agricultural holdings act,
was passed, compelling all landlords to make their leases with
tenants subject to compensation for improvements.
Even with compensation for improvements it requires time
and trials for the tenant or purchaser to find a suitable farm.
Finding the tenant a farm has a direct relationship with the
INDIVIDUAL BARGAINING 67
finding the laborer his job. 1 The importance of this prob-
lem is keenly felt, as is shown in an investigation made by
the United States Department of Agriculture. 2 In accord-
ance with a statute enacted in 1905, New York state 3 estab-
lished a bureau of information regarding farms for rent and
sale and positions for agricultural laborers. It was claimed
that this bureau had secured work for about 15,000 men on
farms during the first three and a half years of its existence. 4
The bureau also issues a bulletin dealing with the farms to
be disposed of throughout the state.
Legislation of various countries also provides credit agencies
to enable the tenant or farmer to acquire advances of capital
necessary to secure permanency in his position. The Schultzc
Dclitsch and Raiffeisen banks in Germany and Austria, the
Credit Foncier in France, the cooperative banks in Italy and
Russia, are private cooperative credit systems operating under
government supervision. 5 New Zealand, Australia, Ireland, and
the provinces of Nova Scotia and New Brunswick in Canada
make loans to farmers, as do also Idaho, Indiana, Iowa, North
Dakota, Oklahoma, Oregon, South Dakota, and Utah.
In New Zealand the "advances to settlers" system is ad-
ministered by the New Zealand State-guaranteed Advances
Office. Loans are repaid to the advances office in semiannual
instalments of principal and interest. Interest is charged at
the rate of 5 per cent, a year, but this rate is reduced to 4^
per cent, if payments of interest and principal are promptly
made. 7
In regulating the contract of landlord and tenant the prob-
lem of administration is similar to that of regulating the
contract of employer and employee. At first the matter is
left to the courts as is the case with the Alabama and Texas
1 See "Public Employment Exchanges," pp. 270-278.
2 United States Bureau of Labor, Bulletin No. 94, 1912, Supply of
Farm Labor," George K. Holmes.
3 New York, Laws 1905, C. 243.
4 New York State Commissioner of Agriculture, Seventeenth Annual
Report, 1910, p. 164. ..
6 American Commission on Agricultural Cooperation and Rural Credit
in Europe, Report, Part I, 1913, pp. 24, 181, 182, 237, 438, 63d Congress,
1st Session, Senate Document No. 214.
6 Wisconsin State Board of Public Affairs, Bulletin on State Loans to
Farmers, 1913, p. 4-
''Ibid., pp. 14 ff.
68 PRINCIPLES OF LABOR LEGISLATION
laws and the British legislation above mentioned. Afterward
it is found that the tenant, like the wage-earner, is unable to
avail himself of the aid of the courts. Then, an administrative
body or commission is created to deal with each contract as
it arises. In the case of the tenant contract, it is the highly
inflated value of land that offers the chief obstacle to the
laborer or cropper in advancing to the position of owner.
This obstacle was attacked in Ireland, in 1881, by the crea-
tion of a land commission to fix rents. The commission
reduced rents 15 to 20 per cent. Later, when the govern-
ment began to make loans at low rates of interest, in order to
encourage farm ownership, and then began to compel the
landlords to sell to their tenants, the land commission fixed
the fair value of the land. Otherwise, the government loans,
at 3 per cent, interest, would have served only to inflate land
values further, and the landlord would have absorbed the
benefit intended for the tenant. Thus the Irish Land Com-
mission does for landlord and tenant what a public utility
commission does for corporation and consumer, or a mini-
mum wage commission for employer and employee. 1
4. The Laborer as Competitor
From one point of view all labor legislation has as its ob-
ject the protection of the laborer as a competitor. The wage-
bargaining power of men is weakened by the competition of
women and children, hence a law restricting the hours of
women and children may also be looked upon as a law to
protect men in their bargaining power. The same is true in
a different way of industrial education and free schools, for
they tend to reduce the competition for the poorly paid jobs
by increasing the efficiency and the wage-earning power of
laborers who otherwise would be serious competitors. But
for these classes of legislation the protection of the laborer as
a competitor is not the main object. There are two classes of
'See Irish land acts of 1881, 1885, 1903, and 1909 in the English
statutes; Cant-Wall, Ireland under the Land Acts; American Com-
mission on Agricultural? Cooperation and Rural Credit, Report, 1913,
p. 865, 63d Congress, 1st Session, Senate Document No. 214.
INDIVIDUAL BARGAINING 69
legislation, however, of which it may be said that the main
purpose has been to protect the American workman from
competition of poorly paid laborers: (1) legislation on immi-
gration, especially the laws against induced immigration and
the Chinese exclusion laws; (2) legislation as to the sale of
goods manufactured by convicts.
(7) Protection against Immigrants
Immigration legislation tends more and more to develop
along protective lines. At first a country encourages people
to come, in order to develop its resources ; later means have to
be found to safeguard the interests of the existing population.
There are four protective purposes which are served by
immigration legislation. The first is the social protection of
the community generally. It is obvious that every state will
regard certain classes as objectionable; hence the prohibitions
that the United States puts on the landing of prostitutes (since
1875), criminals (1875), professional beggars (1903). Polyga-
mists (1891) and anarchists (1903) are excluded, partly on
social and partly on political grounds. The exclusion of
Orientals (1882), again, may be justified on the principle that
they are unlikely to live successfully together with the other
races in America. Since political offenders are on a different
level from ordinary offenders against the law, they have al-
ways been exempt from such exclusion (1875).
A second kind of protection, that of the national health,
is afforded by the laws which attempt to keep out those
immigrants suffering from contagious disease (189 1), es-
pecially from tuberculosis (1907).
A third type of excluded class is made up of those persons
who are looked upon as constituting a danger to the tax-
paying classes. Legislation designed to keep out persons likely
to become a public charge (1882) aims at protecting the tax-
payer from having to support such individuals. The fear that
lunatics, idiots, or epileptics may also become charges on the
community is chiefly accountable for the prohibition (1891)
against their coming into the country. Again, the repeated
efforts which have been made to introduce a literacy test may
7 o PRINCIPLES OF LABOR LEGISLATION
have been inspired partly by a feeling that the illiterate are
more likely to become destitute than others. A head tax,
generally used for revenue alone, may at times become a sort
of property qualification. In the United States it was at
first 50 cents (1S82) and has been gradually raised to $4
(1907), which is not exactly a prohibitive figure; but in
Canada, it is fixed at $500 for Chinese who do not belong to
one of several enumerated professional classes. 1 Finally, per-
sons traveling on assisted passages who cannot prove that
they do not belong to any of the excluded classes are not al-
lowed to land (1891); after being dependent on others such
persons might easily come to be dependent on the state.
The fourth kind of protection put forth by the law over
the people of this country is, from the standpoint of labor
legislation, the most important. The contrast between the
protection afforded to American goods in the commodity
market and the lack of any such effort to lessen the competi-
tion of labor in the labor market was early noticed, and efforts
have been made since 1868 to control immigration after the
example of the tariff. In that year the act of 1864 encourag-
ing immigration was repealed 2 and a start was given to a
new, negative, policy with regard to immigration. This new
policy had particular reference to what is commonly but in-
accurately called "contract labor," or induced immigration.
a. Induced Immigration. The eighteenth century type of
immigration had been very largely due to inducement, some-
times, indeed, to compulsion. After the first quarter of the
nineteenth century indentured labor 3 had practically ceased
to exist; but in 1864 a stimulus was given (owing to the war-
time scarcity of labor) to a similar system of bringing numbers
of Europeans here to work under contract, by a law 4 which
provided that such contracts should be valid and enforce-
able in the United States courts. This, it must be remem-
bered, was before the passage of the thirteenth amendment.
Employers took advantage of the law in order to bring over
foreign laborers. Companies were formed for the same pur-
1 Immigration Commission, Reports, Vol. XL, 191 1, p. 62.
2 United States, Laws 1868, C. 38, Sec. 4.
3 See "Indentured Service," p. 41.
4 United States, Laws 1864, C. 246.
INDIVIDUAL BARGAINING 71
^; and the American labor market was threatened with a
luu . supply of cheap foreign labor. In spite of agitation
in Congress and feeling in the country, it was not until 1868
that this act was repealed, nor until 1885 that the inducement
of immigration was formally forbidden by law.
The contract labor law of 1885 » forbade the assistance or
encouragement of immigrants coming here under contract to
work. The act applied solely to laborers, for those professions
which send representatives abroad were expressly exempted,
as were also domestic servants and skilled workmen in new
industries, provided labor of the same kind could not be ob-
tained otherwise. Individuals were allowed to assist friends
and relatives to come to America. This successful reversal
of policy from the act of 1864 was due in a large measure to
the efforts of the Knights of Labor and the trade unions.
It answered the demand of the working class as a whole, and
especially that part of it which was organized, for effective
protection against the competition of the masses of immi-
grants who were now entering the country. The number of
immigrants, which had decreased during the 'seventies, rose
to 457,257 in 1880, 669,431 in 1881, and 788,992 in 1882. 2
Another immigration act was passed in 189 1, which had as
one of its objects the prevention of induced immigration. 3
The government was beginning to make it more difficult for
a man who had previously obtained work to come into the
United States. Transportation companies were now for-
bidden to solicit or encourage immigration, and the practice
of issuing advertisements in foreign countries promising em-
ployment here was prohibited. At the same time the efforts of
Congress to make the contract labor law a real deterrent were
met by a silent opposition from the courts, which continued
to construe the law strictly and to treat it as of limited applica-
tion until 1907, when the terms of the law itself were changed.
But during the 'eighties and 'nineties the change from the
"old immigration" to the "new immigration" was taking
place; that is, the great bulk of the people no longer came
from Germany, the United Kingdom, and Scandinavia, but
1 United States, Laws 1885, C. 164.
2 Immigration Commission, Reports, Vol. Ill, 1911, p. 4.
3 United States, Laws 1891, C. 551.
72 PRINCIPLES OP LABOR LEGISLATION
from southern Italy, Austria-Hungary, Russia, and latterly
Greece. These people had, in general, a lower standard of
life than the Americans and the earlier immigrants. While
it is true that in many cases where they replaced native labor
this adjustment was favorable to the Americans, in that these
were raised thereby to more responsible and better paid posi-
tions, or else went farther west or southwest, as did the
coal miners, attracted by better wages, still it cannot be
denied that the newer immigrants were as a rule willing to
work for less wages, to endure harder conditions, and to lower
the general plane of living of unskilled laborers. It is on
account of this displacement of American labor by immigrant
labor, a phenomenon which has been at times emphasized to
the point of exaggeration, that the working class has so eagerly
desired the restriction of immigration; 1 and the contract labor
laws were the first attempt to do this. It was not necessary
to enforce the law against farm laborers, because from them
no such competition was feared.
The last revision of the contract labor law was made in
1907, when a general immigration act 2 was passed. This time
the scope of the words "contract laborer" was enlarged to
include any one induced to immigrate by any kind of promise
or agreement, express or implied, to find employment. The
Immigration Commission of 191 1 said that "it is difficult to
conceive how the letter of the law respecting the importation
of contract laborers could be more stringent than at present";
and in consequence of this alteration in the law the courts
have been obliged to give up their attitude of considering
as prohibited by the law only those transactions in which a
contract could be proved.
The cases on the subject bring out the increasing strict-
ness of the law. In United States v. Edgar, 3 decided under
the law of 1885, the prosecution of an employer who had im-
ported labor from abroad failed, because no contract could
be proved. In United States v. Gay 4 it was held that the
1 For a discussion of the economic effects of immigration from opposite
points of view, see J. W. Jenks and W. J. Lauck, The Immigration Prob-
lem, and I. A. Hourwich, Immigration and Labor.
2 United States, Laws 1907, C. 1134.
3 United States v. Edgar, 48 Fed. Rep. 91 (1891).
4 United States v. Gay, 95 Fed. Rep. 226 (1899).
INDIVIDUAL BARGAINING 73
law of 1 89 1 was intended to exclude only unskilled manual
laborers. After the act of 1907, as already pointed out, these
doctrines could no longer be held, and in 19 14 we have a case
in which a fine of $1,000 was exacted for each of forty-five
contract laborers brought across the Mexican border for the
purpose of helping to construct a railway. 1
That laws against induced immigration, although in force
for thirty years, have done very little to protect the American
laboring man from the competition of immigrants is evident
from two facts: the enormous numbprs of unskilled laborers
who have since entered the United States, and the efforts that
are constantly being made to secure other means, notably a
literacy test, for creating a "labor protective tariff." 2 With
regard to the first point, it may be mentioned that during the
fiscal year from June 19 13 to June 19 14 the number of un-
skilled workmen who entered the United States was 226,407,
and the number of skilled workmen was i72,2o8. 3
In Australia a law 4 similar to the American, but less rigid,
excludes persons seeking to enter the country on a contract
of employment. The minister for external affairs may, how-
ever, admit such an immigrant (a) if the contract is not made
in contemplation of affecting an industrial dispute; (b) if
the remuneration and other conditions of employment are as
advantageous as those current for workers of the same class
at the place where the contract is to be performed. A further
clause, which applies only to persons not British subjects or
their descendants, and therefore to very few emigrants to
Australia, provides that there must be difficulty in the em-
ployer's obtaining within the Commonwealth a worker of equal
skill and efficiency. The states belonging to the Common-
wealth offer assisted passages to agricultural workers and to
domestic servants, whose ranks are by no means overcrowded. 5
1 Grant Bros. Construction Co. v. U. S., 232 U. S. 647 (1914).
2 In the effort to secure the desired protection by another method, the
people of Arizona in 1914 enacted by initiative and referendum a law
requiring employers of more than five persons to engage at least 80 per
cent, qualified electors or citizens. This statute was declared uncon-
stitutional by the United States Supreme Court as denying the equal
protection of the laws. (Truax v. Reach, 239 U. S., 33 (1915).)
3 Commissioner General of Immigration, Report, 1914, pp. 40, 41.
* Act No. 19 of 1905.
6 Commonwealth of Australia, Official Yearbook, 1914, p. 1027.
74 PRINCIPLES OF LABOR LEGISLATION
In the Union of South Africa, the government endeavors
to maintain good conditions in the labor market by preventing
unemployment and directly assuring itself that the competi-
tion of every immigrant is "fair." Every immigrant of Euro-
pean descent belonging to the working class is obliged to have
a certificate, stating that he has been engaged to serve, im-
mediately upon his arrival, an employer of repute at adequate
wages, for a period of time to be fixed in said conditions, but
not to be less than one year. 1 The terms of this law are ex-
actly the opposite of the American provisions against induced
labor; yet the idea of protecting the laborer from competition
with an immigrant of lower standards is common to both.
b. Exclusion of Orientals. The danger to the laborer from
the competition of European immigrants may be lessened
and gradually done away with as these become Americanized.
Trade unionism, especially, is a force which is giving the im-
migrant the same standards as the American. In the case
of the Oriental races, however, this "happy ending" to the
story is not to be expected. Individual Chinese, Japanese,
and Hindus may settle down to lead western lives and adopt
western ideas; but the great mass of their countrymen who
emigrate do so without any desire to change their ways of
living. It is a well-known fact that these ways are much more
economical than those of an American or European, and that
therefore an Oriental can accept wages which to a white man
would mean starvation. No doubt race feeling enters to
some extent into the composition of laws excluding Chinese,
Japanese, and Hindus; but more deep-lying is the fear of the
competitive worker. This is shown by the fact that the
employing classes welcome Orientals, whom they find efficient,
polite, and contented. Miss Eaves says of the early Cali-
fornian opposition to the Chinese:
The legislation on Oriental labor sprang from the people. . . .
The laws . . . were the product of the actual experiences — sometimes
of the race prejudices — of those in the humblest ranks of society.
For thirty years the working people persistently made known their
needs, winning at last a practically unanimous support in the state, so
that all classes united to urge the tardy federal legislation for exclusion. 2
1 South Africa, Laws 1913, No. 22 (immigrants' regulation act).
2 Lucile Eaves, History of California Labor Legislation, 1910, p. 115.
INDIVIDUAL BARGAINING 75
The report of the federal Joint Special Committee to In-
vestigate Chinese Immigration, which was published in 1877,
is filled with complaints against the Chinese on the part of
American workingmen who asserted that they could not com-
pete with Chinese. A point very often made was that the
average American workman is a married man with a family,
while Chinamen would come to California alone and expect
to cam only what would keep a single man. Others said that
Chinese labor was less efficient than white labor. 1 One wit-
ness asserted that he used to earn from $20 to $21 a week at
broom making, but that in competition with the Chinese he
could make only $i4.8q. 2
It was this agitation by the people on the Pacific coast, who
had learned to fear the industrial competition of the Chinese,
that led to federal legislation and finally to the exclusion of
the Chinese laborers. The Burlingame Treaty of 1868 had
settled nothing, for it merely proclaimed the right of the
Chinese to settle whore they would, while denying them the
right of naturalization. 3 Another treaty, concluded in 1880,
gave the American government the right "to regulate, limit,
or suspend" Chinese immigration, but not absolutely to pro-
hibit it. Two years later the exclusion of Chinese laborers
went into effect, when an act was passed forbidding them to
enter the country for the next ten years. 4 This policy has
been kept up ever since in laws and treaties which have
gradually grown more strict. On the same principle Jap-
anese laborers who are not coming to the United States
in order "to resume a formerly acquired domicile, to join a
parent, wife, or children residing there, or to assume active
control of an already possessed interest in a farming enter-
prise in this country," arc refused passports by the Japanese
government, in accordance with a treaty agreement of 1907. 5
The British self-governing colonies have had a similar ex-
perience to that of the United States, and have met it by
practically the same means. Canada excludes the Chinese
1 Joint Special Committee to Investigate Chinese Immigration, Report,
pp. 346, 347, 44th Congress, 2d Session, Senate Report No. 689, 1877.
2 Ibid., p. 360.
3 Immigration Commission, Report, Vol. XXXIX, 1911, p. 69.
4 United States, Laws 1882, C. 126.
B United States, Laws 1907, C. 11 34.
5
76 PRINCIPLES OF LABOR LEGISLATION
laborers by making them pay a head tax of $500 ; the Japanese,
by an agreement with the government of that country, that
not more than 400 Japanese are to enter Canada annually;
and the Hindus, by a head tax of $200 and the requirement
that they shall come by a "continuous journey" from India,
which cannot be done by the existing routes. 1 Australia and
New Zealand use a literacy test to keep out Chinese, who
must write fifty words (Australia) or a signed application for
admission (New Zealand) in a European language. 2
c. The Literacy Test. The British self-governing colonies
have found in the literacy test a weapon against Asiatic im-
migration. In this country a long struggle has been made to
apply to all immigrants a test of this kind, but so far without
success. Three times it has come very near to being put on
the statute-book.
First introduced unsuccessfully in Congress in 1892, the
principle of the literacy test was embodied in a bill of 1895
and survived through numerous modifications until two years
later it had passed the House and Senate. Persons physically
capable of reading and over sixteen years of age were excluded
if they could not read and write some language, with the ex-
ception of near relatives of admissible immigrants. 3 The in-
tention of the bill was to keep out not only the criminal and
pauper classes, but also the southern and eastern Europeans,
very many of whom were illiterate. President Cleveland,
however, vetoed it as being un-American and illiberal, and
also as unlikely to have any good effect on the prevailing de-
pression or on violence in labor troubles and racial degenera-
tion. The House passed the bill over the President's veto
by a majority of 193 to 37, but no action was taken in the
Senate and the bill was consequently not enacted into law.
The next attempt to secure a literacy test was made under
the Taft administration. A bill was introduced into the
Senate in 191 1, containing a clause which was practically
copied from the bill mentioned before. 4 It was passed by the
House and Senate but President Taft vetoed it, February 14,
1 Immigration Commission, Reports, Vol. XL, p. 75.
2 Ibid., Abstracts of Reports, Vol. II, pp. 633, 637.
3 Ibid., Report, Vol. XXXIX, p. 47-
4 Congressional Record, Vol. XLVII, 191 1, p. 3669.
INDIVIDUAL BARGAINING 77
1 9 13. The Senate thereupon passed the bill again, but in
the House the vote fell short of the required two-thirds ma-
jority and the bill therefore had to drop. 1
The latest bill including a literacy test of the usual type
was introduced in the House in 1913. 2 The House and
Senate voted favorably on this bill and it went to President
Wilson on January 16, 1915. He returned the bill with his
veto, giving, as his reason, that this bill embodied a radical
departure from the traditional policy of the country, in almost
entirely removing the right of political asylum and in ex-
cluding those who have missed the opportunity of education,
without regard to their character or capacity. Moreover,
he did not believe that the bill represented the will of the
people, and for these reasons he refused to sign it. 3 The
House again could not raise a two-thirds majority in favor
of the bill, and so, like its predecessors, it came to nothing. 4
(2) Protection against Convict Labor
Varying estimates have been made at different times of
the number of convicts engaged in productive industry in the
United States. Perhaps one of the best estimates was that
of 51,000, made by the Commissioner of Labor in 1905. 5 The
value of goods sold within and outside the state in which the
labor was performed amounted to $27,000,000 in the same
year. 6 The industries mainly affected by the competition of
convict labor are the manufacture of boots and shoes, cloth-
ing, especially workmen's shirts and overalls, furniture,
brooms and brushes, stove hollow ware and stoves, harness
and whips, binder twine, cooperage (in Chicago), farm wagons,
and stone work. The wages paid to convicts are, of course,
nothing more than pocket money; the maximum amount
reached is 75 cents a day.
1 Congressional Record, Vol. XLIX, 1913, p. 3429.
* Ibid., Vol. L, 1913, p. 2013.
3 63d Congress, 3d Session, H. R. Document No. 1527.
4 Congressional Record, Vol. LII, 1915, p. 3078.
& United States Commissioner of Labor, Twentieth Annual Report,
1904, p. 14.
8 Ibid., pp. 474. 475-
7S PRINCIPLES OF LABOR LEGISLATION
The problem raised by permitting convicts' work to be sold
in the open market in competition with the product of free
labor has been expressed as follows :
The two investigations (of the Bureau of Labor, 1885 and 1895)
showed that the convict product as a whole was very small when
compared with the entire product of free labor in the United States.
But the employers of free labor and their workmen unite in affirming
that when any convict-made product is placed in competition with
the product of free labor the market becomes demoralized, even a
small sale affecting prices far out of proportion to the amount of
the sale. . . . Every state objects to being made the market for con-
vict-made goods produced in other states. 1
The prisons do not stand in the normal relation of producers
to the commodity market; they go on working, regardless of
the fluctuations of business; they can undersell any com-
petitor, for they do not have to meet the usual costs of pro-
duction and in the last resort they can always fall back on
the taxes. Manufacturers sometimes assert that they do not
feel the competition of convict labor except in times of de-
pression. 2
The employer of "free labor" can meet this competition
in several ways. He may adulterate or otherwise lower the
quality of his goods so as to lower his cost of production, or
he may give up the particular branch of his trade in which
the competition of convict labor is felt. Instances can, how-
ever, be given of whole industries which have been practically
absorbed by convict labor in certain localities, such as the
cooperage industry in Chicago during the 'eighties.
The problem of convict labor competition takes an even
more serious aspect when it is considered in respect to inter-
state commerce. Pressure brought to bear on the govern-
ment of any one particular state is often successful in getting
a law passed forbidding the sale of convict-made goods within
that state; but this only means that convict-made products
from other states are brought in and sold there. In fact,
the publicity given to the system of convict contract labor
when a bill to abolish it is being discussed is apt to attract
1 United States Commissioner of Labor, Twentieth Annual Report,
pp. 11, 23.
2 Ibid., p. 59 (statement of a Minnesota shoe manufacturer).
INDIVIDUAL BARGAINING 79
attention to the fact that a new market will be opened for
the convict-made goods of other states. It has been estimated
that only 34.7 per cent, of convict -made goods are sold within
the state of origin, and 65.3 per cent, in other states. 1
Many of the states have laws designed to put some restraint
on competition between convict and free labor. No law has,
however, yet been enacted approaching in simplicity a pro-
posal made in the last Congress, that the convict should be
put to remunerative work, charged with his upkeep, and have
his labor credited to him; that he should in fact be put on
the same competitive footing as an ordinary laborer. 2 The
laws bearing directly on the subject of competition are for
the most part of recent origin and may be divided into three
main classes: (1) The general statement that convicts are
not to be employed where their work conflicts with free labor
(Illinois, Minnesota, Tennessee, Utah); (2) the prohibition
of convict labor in certain forms of industry — e. g., the manu-
facture of tin cans for fruit-packing (Iowa, Maryland, New
Jersey, Oregon, Wyoming) — Washington has a provision the
reverse of this, by which it refuses to allow its convicts to
manufacture anything save jute fabrics and bricks, while
Arizona provides that convicts shall be set to work on streets
and highways, when they do not compete with free labor;
(3) the distribution of convicts among diversified lines of
industry, sometimes coupled with the limitation of the number
to be employed in a given industry (Indiana, Massachusetts,
Nebraska, Ohio, Pennsylvania). A few other states have
adopted different plans. California has a constitutional pro-
vision forbidding the sale of convict-made goods, unless spe-
cifically sanctioned by law. Massachusetts, in addition to
the provision mentioned above, stipulates that convict-made
goods must be sold at not less than wholesale prices. The
constitution of Michigan forbids the teaching of a trade to
convicts, excepting only the manufacture of such articles as
are mainly imported into the state.
Indirect methods of legislating against the competition of
convict labor are laws providing that convict -made goods shall
1 United States Commissioner of Labor, Twentieth Annual Report,
P- 497-
2 Congressional Record, Vol. LI, 1914, p. 4294.
So PRINCIPLES OF LABOR LEGISLATION
be labeled, as in Pennsylvania, Montana, and other states,
or that dealers in such goods shall have a license, as in New
York. The most effective kind of law is probably the pro-
vision that all goods manufactured in prisons shall be for the
use of the state (the "state use" system). There seems to be
no good reason why the state should make money out of its
convicts, and on the other hand work on the roads, reclaiming
land, or manufacturing for state use provides work that is
both productive and non-competitive.
Federal legislation has been attempted for the last thirty
years, but nothing has as yet been accomplished. In the last
(63d) Congress, the proposal was made to subject to the law
of a state convict-made goods imported into it,' which, it was
hoped, would check interstate commerce in these goods.
The opinion has often been expressed that, if such a law
were enacted, the competition of convict labor with free
labor would cease. Up to the present, however, the attempts
to get such legislation enacted have met with no success.
5. Legal Aid and Industrial Courts
We have seen how modern legislation has attempted to
give to the individual wage-earner increasing privileges and
to place him more nearly on an equality with his employer.
Yet these privileges are available to him only so far as the
state actually enforces them. We shall see that, in the case
of factory legislation, 2 the early statutes assumed that the
employee would initiate proceedings in court, with the aid
of the ordinary officers of law, to enforce the safety and health
laws. Not until many years had passed did the state provide
special police, the factory inspectors, to relieve the laborer
of this impossible obligation. So in these more fundamental
rights growing out of the labor contract the state leaves to
the laborer the duty of realizing upon them through the
ordinary means of prosecution in court.
But poverty, ignorance, and the technicalities of law often
combine to set the remedies beyond his reach. "From birth
x 63d Congress, 2d Session, H. R. 5601.
2 See Chapter IX, "Administration." .
INDIVIDUAL BARGAINING 81
to death," says a report of the New York Legal Aid Society, 1
"the poor man is the prey of a host of petty swindlers. He
is educated to believe that justice is free, and he finds that,
to get it, he must pay a lawyer a price he cannot afford." To
realize justice he must appeal to charity. Attorneys, in
countless individual cases, have given their aid without price,
but it cannot be expected that they can meet the need with-
out neglecting their regular clients. Yet without their aid the
chance of the laborer's success in the legal battle is negligible.
The reports of legal aid societies are filled with cases of in-
justice that call for an attorney. Wages are withheld. Pawn-
brokers and "loan sharks" command usurious rates of interest
on small loans, and compel their victims to sign papers, such
as chattel mortgages and wage assignments, of whose contents
they are ignorant. Wage exemption laws are nullified by
garnishment proceedings brought against the employer to at-
tach wages not yet paid. The laborer must then have an
attorney to secure the release of his wages, and he may lose
his position, for employers often make it a rule to discharge
employees whose wages are garnisheed. Thus, even the threat
of garnishment may serve, not only to nullify his exemptions,
but to force him to pay unjust claims out of wages not exempt.
Foreigners are a class especially exposed to fraud. The
abuses of peonage, vagrancy laws, and the padrone system
have already been mentioned. 2
Against these invasions of their legal rights wage-earners
are for the most part helpless to defend themselves. The
majority of their grievances involve small amounts which do
not justify the employment of a lawyer. Besides, there are
the initial court costs, such as fees for filing, fees for serving
summonses and subpoenas and for attaching property, and
fees to clerks of court in contested cases. To the man with a
small claim the remedy may cost more than the result.
(j) Private and Public Legal Aid
To remedy these abuses, private charity has found a large
field. Legal aid societies have been organized in some forty
1 Thirty-eighth Annual Report, 1913, p. 23.
2 See "Peonage," p. 37; "Padrone System," p. 46.
6
&a PRINCIPLES OF LABOR LEGISLATION
American cities. Their object is "to render legal aid and
assistance gratuitously to all who may appear worthy thereof,
and who from poverty are unable to procure it." l The first
was started by certain German merchants in New York in
1876 to help poor German immigrants, and was called the
German Law Protection Society, but soon extended its aid
to others. In 1890 Arthur von Bricsen, called the "father of
the legal aid society movement," became president and the
name was changed to the Legal Aid Society of New York.
The society has confined its work to wage-earners, but with-
out regard to nationality, race, or religion. The applicant
must be one whose claim is too small or who is too poor to
hire an attorney, a poor man being defined as one whose in-
come may be just sufficient to maintain him but not sufficient
for extraordinary demands. It is the aim of the society to
cooperate with and not to compete with other lawyers. Its
attorneys are under agreement to have no other legal business
and they are not permitted to recommend any particular
attorney to applicants whom the society may reject. A case
to be accepted must be unquestionably meritorious, and this
is ascertained by investigation and an impartial hearing of
both sides. Finally, the society makes every effort to settle
cases out of court, and, up to the moment of trial, if a reason-
able offer of settlement is made, advises its client to accept.
The policy is to discourage litigation in such a way as to pro-
tect the rights of all. In 19 14, only 2,296 cases were taken
into court, out of a total of 40,430 handled by the society. 2
From New York, legal aid societies have spread throughout
the United States and Europe. In the United States they are
generally unincorporated voluntary associations, conducted,
with one exception, 3 by private individuals. In 191 1 the first
national conference of legal aid societies was held in Pitts-
burgh, thirteen of the forty organizations in the country being
represented. The second was held in New York in 191 2, with
delegates from sixteen societies. At this time the National
Association of Legal Aid Societies was established, the objects
1 Legal Aid Society of Philadelphia, Thirteenth Annual Report, 1906,
Constitution, Art. I, Sec. 2.
2 New York Legal Aid Society, Thirty-ninth Annual Report, 1914, p. 7.
3 Kansas City, Mo.
INDIVIDUAL BARGAINING 83
being to give publicity to the work, to bring about coopera-
tion and increased efficiency, and to encourage the formation
of new societies. 1
The legal aid movement has flourished especially in Ger-
many. In 191 1, there were 1,016 societies 2 which in 19 10
had 1,546,971 cases. In 1913, they held a convention at
Nuremberg, which was attended by delegates from the United
States, Denmark, Holland, Belgium, Austria, and Switzerland.
In London, the "Poor Man's Lawyer's Association," with
"centres" in settlements and missions, gives gratuitous legal
advice to persons who cannot afford a solicitor, but does not
furnish assistance in court. 3 It is sometimes objected that
legal aid will encourage litigation, but the record of cases
settled out of court by legal aid societies does not support
this view.
So far legal aid is almost entirely a private enterprise, and,
excellent as has been the work, it is restricted to a few of the
larger cities. Even there the work has been seriously ham-
pered by lack of funds, a handicap repeatedly mentioned in
the reports. There is, accordingly, an increasing demand that
legal aid be made a function of government and thus put
within the reach of all. Several attempts in this direction
have been made in the United States. Kansas City, Mo., has
the distinction of possessing the only municipal free legal aid
bureau in the United States. It was organized as a depart-
ment under the board of public welfare, in August, 1910. 4
Los Angeles County, Calif., has established the office of
public defender, 5 the duties in civil cases being the prosecution
of actions for the collection of wages and other demands
of persons who cannot afford counsel, in cases where the
sum involved does not exceed $100. This officer also de-
fends such persons in civil litigation, when they are being
unjustly harassed. Costs are paid from the county treasury.
While the office is efficacious in obtaining justice and reducing
1 Chicago Legal Aid Society, Bulletin No. 2, 1912-1913, p. 3.
2 W. E. Walz, "Legal Aid Societies, Their Nature, History, Scope,
Methods, and Results," The Green Bag, Vol. XXVI, 1914, p. 101.
3 Arthur Blott, "Legal Dispensaries in London," Legal Aid Review,
Vol. IV, 1906, No. 3.
4 See Board of Public Welfare, Kansas City, Mo., Reports.
6 Los Angeles County Charter, Sec. 23. Became effective July 1, 1913.
84 PRINCIPLES OF LABOR LEGISLATION
its expense for the poor man, the question of the law's delay
has not been solved. The public defender does not have
power to hear and determine questions involving the payment
of wages. His findings might be made final on all questions
of fact, and, when the findings are filed in court, judgment
might be entered accordingly. 1 The public defender would
thus have the functions of an industrial court as later de-
scribed.
A provision for the collection of wages in California is the
payment of wages act of 191 1. It provides for immediate
payment of wages due to a discharged employee and for pay-
ment in five days to an employee not having a definite con-
tract who quits or resigns. 2 All other wages fall due at least
once a month, and must not be withheld more than fifteen
days after that time. As the legislature made no provision
for the administration of the act, the bureau of labor statistics
undertook to enforce it. During the fiscal year 191 2, no fewer
than 1,899 claims for wages were filed and investigated, and
1,292 claims were collected, amounting to $24, 445. 59. 3 The
majority of cases are settled within three days of filing the
claim. A special agent is sent to the employer to investigate.
If the latter refuses to pay the wages and cannot give a satis-
factory explanation, he is cited to appear before the labor
commissioner, who hears both sides. This is necessary in
80 per cent, of the cases. If no settlement can be reached,
the employer is cited to appear before the district attorney
and show cause why a warrant should not be issued for viola-
tion of the payment of wages law. Both parties and a repre-
sentative of the bureau are present. If the employer still
refuses to pay, a warrant is issued, as a last resort, for his
arrest. Twelve arrests were the total for the year.
In November, 191 4, the act was declared unconstitutional
by a district court on the ground that in effect it permitted
imprisonment for debt, which the state constitution prohibits
except in case of fraud. 4 Although the statute did not pro-
1 Recommended by the public defender in a letter to the Milwaukee
Bar Association, March, 1914.
2 California, Laws 191 1, C. 92.
"California Bureau of Labor Statistics, Fifth Biennial Report, 1911-
J912.
*£x parte Crane, On Habeas Corpus, Qvm. 560, November 23, 1914,
INDIVIDUAL BARGAINING 85
vide imprisonment as a penalty and was silent as to the
process by which the court might obtain jurisdiction of the
person of the offender, in the test case arrest and detention
pending a hearing were the means used. Accordingly, in 1915,
an amendment to the payment of wages law was passed. 1
Instead of the earlier $500 fine for violation if an employer
fails to pay in full within five days after the same are due,
the wages of an employee who leaves or is discharged are to
continue at the same rate until paid, or until action is com-
menced, but in no case after thirty days. No employee who
refuses or avoids payment is entitled to benefit under the act
for such time as he avoids payment. Wilful refusal to pay
for labor, with intent to secure a discount, or to harass or
defraud, constitutes a misdemeanor. The constitutionality of
this new act is believed to depend largely on this last clause.
It has not as yet (October, 19 15) been tested in the courts;
but the attorney-general, when drafting the bill, had a study
made of similar laws and their constitutionality, hoping thus
to secure a more fortunate career for this act than its pre-
decessor had.
In 19 10, following the recommendation of a state immigra-
tion commission appointed to investigate the condition of
aliens in the state, the legislature of New York created a
bureau of industries and immigration subordinate to the de-
partment of labor, whose object was to give newly arrived im-
migrants a fair start. This was to be done by securing to
aliens a hearing for complaints in their own language, the
bureau to act as mediator in securing the enforcement of
existing laws to prevent exploitation. The chief investigator
brings the parties together at a hearing and tries to adjust
the differences. If he fails, a civil case is turned over to the
Legal Aid Society.
This system of state legal aid for immigrants was extended
to all wage-earners by a section of the New York industrial
commission law of March, 191 5: "The commission shall ren-
der all aid and assistance necessary for the enforcement of
any claim by an employee against his employer, which the
commission finds reasonable and just and for the protection
•California, Laws 1915, C. 142.
86 PRINCIPLES OF LABOR LEGISLATION
of employees from frauds, extortions, exploitation, or other
improper practices on the part of any person, public or private;
and shall investigate such cases for the purpose of presenting
the facts to the proper authorities and of inducing action
thereon by the various agencies of the state possessing the
requisite jurisdiction." 1 Under this act, the state industrial
commission is made an agency for providing the services of a
lawyer to wage-earners unable to pay for them. It lacks, how-
ever, a provision making the findings conclusive in court
proceedings.
(2) Industrial Courts
In Europe, a different type of legal aid has been evolved,
taking the place, not of the lawyer, but of the judge. This is
the industrial court, or conseil de prud'hommes. Industrial
courts are special courts for the settlement of disputes arising
out of labor contracts between employers and employees, and
their purpose is "to settle by conciliation whenever possible
and by legal judgment when conciliation fails, but in any
event cheaply, quickly, and by means of a court composed
in part or in whole of elected representatives of the two
classes, all individual legal cases which arise from the re-
lations of employer and employed." 2 The first industrial
court was founded at Lyons, France, in 1806, for the silk
industry. The law creating the Lyons court provided that
similar courts might be established in all the factory cities
of France, and accordingly their number has increased steadily.
When the left bank of the Rhine in 181 5, and Alsace-Lorraine
in 187 1, became German territory, the industrial courts were
retained, and in 1890 a general law provided for their estab-
lishment throughout the empire. Industrial courts similar to
the French were introduced into Belgium in 1859, while
Austria followed in 1869, Italy in 1893, an ^ Spain in 1908.
In Switzerland, Geneva was the first canton to take up the
idea, creating an industrial court on the French model in
1 New York, Laws 1915, C. 674, Sec. 52e.
2 United States Bureau of Labor, Bulletin No. 98, January, 1912;
"Industrial Courts in France, Germany, and Switzerland," Helen L.
Sumner, p. 273.
INDIVIDUAL BARGAINING 87
18S2. In 19 10, only seven of the Swiss cantons lacked legis-
lation of this character.
There are, in general, three types of industrial courts:
(1) The French, in which only employers and workers are rep-
resented, and the number of members is even; (2) the Ger-
man, in which the president is neither an employer nor a
worker, and the number of members is odd; (3) the Swiss,
which is an adaptation of the ordinary court, with the
addition of special "assessors," or advisers, to the judge. 1
In all three types the employers and workmen are equally
represented.
With respect to jurisdiction, a labor contract of some kind
is essential, but the idea is interpreted to cover any relation-
ship between wage-givers and wage-receivers. The great ma-
jority of cases are for wages due, 2 but discharge without notice
is also a frequent cause of complaint. By far the greater
number of complaints are made by workers. In 1908, in
Germany as a whole, 5,672 cases were brought by employers
and 106,269 by workers. Most of the complaints are for
small sums.
Conciliation being the chief object of industrial courts,
the procedure is a radical departure from that of the ordi-
nary court. Personal appearance of the parties is required,
except for a good excuse, as illness or absence from the city.
In Germany, parties may be represented only by persons in
the industry, but in France lawyers are allowed to be present,
either to represent or assist the parties. 3 Lawyers are per-
mitted in Spain also, but not in Basel, Zurich, or Geneva.
The proceedings are much less formal than in an ordinary
court, and the president takes an active part. Preliminary
hearing for the purpose of conciliation before a section of the
court is provided for in France and Germany. More than
half the cases are settled by conciliation, and, as a large num-
1 Two cantons have courts based on the French model (Geneva and
Vaud), and four have the German type (Lucerne, Berne, St. Gall, Neu-
chatel).
2 In Berlin in 1908 more than one-half the complaints were for wages
and a third about illegal discharge. ,
3 In practice lawyers appear before the board of judgment in Pans
in only 10 per cent, of cases, and before the board of conciliation in only
5 per cent.
88 PRINCIPLES OF LABOR LEGISLATION
ber are not contested, or are settled by default, only a small
percentage call for formal judgment. 1
The salient advantages of the industrial courts are rapidity
and cheapness. Cases are set for as early hearing as possible
after complaint, and only necessary delays are permitted.
In France, cases must be settled in four months, and in Ger-
many in 1908 only 1.5 per cent, of cases brought to final judg-
ment lasted over three months. Expenses exceeding the fees
collected are met by the municipalities over which the court
has jurisdiction, or, in the case of courts with wider jurisdic-
tion, by the state. In such cases there are no fees; in others
the fees are low. Members of the courts are compensated by
fees or salaries, the method varying within the country. In
Germany the president receives a salary, and the representa-
tives of employers and employees receive fees for time in
court.
Wherever established, industrial courts are held indispen-
sable, the fact that no dispute is too insignificant for them being
regarded as a special advantage. They are, however, much
more successful with small-scale production than with the
factory system, the reasons being that in the latter case
standardization of conditions obviates many disputes, and
also that employees fear blacklisting if they bring suit.
No such institution exists in English-speaking countries. In
Great Britain the arbitration act of 1824 was designed to
cover individual disputes, but the procedure was too intri-
cate and costly ever to be applied. The "councils of con-
ciliation" act of 1867 permitted industrial courts like the
French, but no true judicial tribunal was ever created under
it. 2 In the United States, a Pennsylvania law, enacted in
1883, attempted to establish a sort of industrial court, but
none was ever created and ten years later the law was re-
pealed. The constitutions of New York and a few other
states contain provisions for courts of voluntary arbitration,
but no courts were ever established.
1 In 1908 only 17 per cent, of cases in Paris and 9 per cent, in Berlin
required formal judgment.
2 See also "Mediation by Government," p. 124. The above descrip-
tion applies to industrial courts in their relation to the individual bargain.
In some cases they also deal with the collective bargain.
INDIVIDUAL BARGAINING 89
A few attempts have, however, been made, . along quite
different lines. One of these is the Conciliation Court of
Cleveland, Ohio. It grew out of a provision in the municipal
court act, designating a clerk to assist persons unable to hire
a lawyer in preparing and filing papers, and, if possible, to
bring about a settlement. An experienced man was selected
by the chief justice, and he often acted successfully as a
mediator. In 19 12, 1,200 cases were thus settled out of
court. All services were free. Since March, 19 13, a concili-
ation branch of the court has been in operation. The fee is
usually 25 cents, never more than 45 cents, and all writs are
served by registered mail. Lawyers are not allowed to repre-
sent the parties, and no set procedure is required. Each
party is allowed to state his case in his own way. When
both sides have been heard, the judge must seek to effect an
amicable adjustment of the differences between the parties. 1
Ordinarily, he obtains their consent that he shall adjust the
issue himself. The Cleveland court differs from the European
industrial courts in that neither employers nor workmen are
represented on the bench, the judge is not elected by the two
classes, and the court does not confine itself to disputes arising
out of the labor contract. It resembles them in that it is an
authoritative tribunal, instead of being merely a private
society, like the legal aid agencies of the United States.
To what extent it would be possible to apply the European
industrial court system in the United States is as yet an open
question. People have not awakened to the need, and they
are not prepared for such a system by habits of organization
and joint action of interests. It is improbable that industrial
courts would be created generally by local initiative, as in
France, and even if the system were made mandatory by the
state government, as in Germany, it would require a state
agency to guide local governments in starting them. It is
possible that the California wage payment law and the New
York industrial commission law, above referred to, may lead
to state and local advisory boards of employers and employees
to assist the state authorities in executing the laws, and
1 R. C. Moley, "Justice through Common Sense," The Survey, Oct.
31, 1914, p. 101.
qo PRINCIPLES OF LABOR LEGISLATION
that, eventually, through the enlightenment of public opinion
and through practice in cooperation between employers and
employees, 1 the industrial court may be successfully modified
and adapted to American conditions.
1 See Chapter IX, "Administration."
CHAPTER III
COLLECTIVE BARGAINING
Collective bargaining dates back as far as individual bar-
gaining. Its first examples are town charters and merchant
gilds. The townspeople through a collective contract secured
certain rights from the king in return for a money payment.
Among these rights none was more valuable than that of the
doctrine "City air makes free." If a serf had been in a free
city for a year, he became a free man. Freedom was estab-
lished through collective bargaining. Without freedom there
can be no individual contracts. Historically, individual and
collective bargaining have been interdependent; the one has
been necessary to maintain the other.
i. The Law of Conspiracy
Yet collective bargaining for a long time was viewed with
suspicion. All associations were treated as conspiracies. They
were much more powerful than individuals, and hence were
considered dangerous. Moreover, collective bargaining im-
plies a restriction of the freedom to make individual bargains.
To bargain collectively there must be a contract or an agree-
ment between the members of the association that each shall
give up his right to make an individual contract, and shall
either make his contracts only as the majority decides or shall
permit the agents elected by the majority to make his con-
tracts for him. In order to enforce such bargains the asso-
ciation must have full disciplinary powers and must be al-
lowed to determine who shall be admitted to membership.
Non-members do not share in the benefits of the collective
bargain; in fact, they ace often injured thereby. Collective
— 'tw—I-*J*» -
92 PRINCIPLES OF LABOR LEGISLATION
bargaining seriously restricts the freedom of both members
and non-members to make individual bargains.
(j) Origins of Collective Bargaining
Collective action was permitted in early law only under
grant of a special charter from the king. Thus, the king
granted charters to free citizens, and to merchant and craft
gilds. Armed with a charter, the association might not be
prosecuted as a conspiracy, and was conceded the great privi-
leges of acting as a unit and continuous existence through
the right of succession.
Of these early associations the craft gilds were the nearest
approach to the trade unions of to-day; yet their functions
were very different. They were composed of three classes:
the masters, the journeymen, and the apprentices. The
masters and the journeymen worked side by side, with the
same tools. It was easy for an apprentice to become first a
journeyman, then a master. Hence the relations of the mas-
ters to the journeymen and apprentices received but little
attention in the charters which created gilds. The wage
bargain which the master made with the journeyman and the
apprentice was as yet not a matter of public concern. The
public was interested primarily in the other bargaining func-
tion of the masters; their merchant function, the making of
the price bargain with consumers. The consumers dominated
the government; and it was their concern to prevent extor-
tionate prices and the substitution of "bad ware." 1
With the gradual expansion of markets, the merchants
gained recognition in society. Charters were granted to the
merchant adventurers who risked their capital in foreign
enterprises, and patents of monopoly were granted to mer-
chants in the domestic trade. Later came the special charters
to banks, canal, turnpike, and railway companies and other
corporations. Thus, the right of association was granted to
capital. With freedom from the taint of conspiracy, the cor-
poration charter conferred upon the incorporators the privilege
1 See Commons, Labor and Administration, 1913, "American Shoe-
makers," p. 219 ff.
COLLECTIVE BARGAINING 93
of "limited liability." In a partnership the members are re-
sponsible to the full extent of their resources for the contracts
and torts of the partnership. But the members of corpora-
tions have only "limited liability," usually only to the extent
of their subscription. At first, incorporation could be secured
only through special act of the legislature ; and corruption was
often employed to secure such charters. Finally, in the dec-
ade of the 'fifties, general corporation laws were enacted. It
is now the privilege of all persons to combine their capital
and form corporations, with but few restrictions. So com-
plete is the right of association of capitalists that the law has
introduced the fiction that corporations are persons, entitled
to many of the advantages of natural persons; and the rule
of "limited liability" lessens the responsibility of the mem-
bers for the acts of the corporation.
The modern corporation has taken over both of the bar-
gaining functions of the masters of old : the price bargain and
the wage bargain. In the first the corporation performs the
merchant function, and its object is to get as high prices as
possible from the consumer. In the second it performs the
employer function, and its object is to give as low wages as
possible to the laborers.
Collective action by capital has not stopped with the cor-
poration. The corporations have themselves become mem-
bers of associations. In these associations it has generally
been found advantageous to separate the two bargaining func-
tions. Manufacturers' associations, "pools," and "trusts" are
formed to deal with the price of products to consumers.
Employers' associations deal with the wages paid to labor.
Practically the same individuals may compose these associa-
tions; but their functions are totally different. 1
Labor did not win the right of collective bargaining as
early as capital. When, in the eighteenth century, in England,
the laborers combined to enforce their demands for higher
wages they were prosecuted for "conspiracy." In the jour-
neyman tailors' case, 2 for example, all combinations to raise
wages were held to be conspiracies. This common law doc-
trine was inherited by our fathers from England. In the
'Commons, Labor and Administration, especially p.
l 8 Mod. 11 (1721).
262.
94 PRINCIPLES OF LABOR LEGISLATION
mother country the journeyman tailors' case was followed by
the enactment of statutes to penalize combinations to raise
wages. In 1824 and 1825 these statutes were repealed, and
a considerable degree of freedom to combine was conceded
to labor. In 187 1 trade unions were declared not to be il-
legal combinations in restraint of trade. In 1875 labor was
entirely freed from the conspiracy law in its criminal aspects.
Finally, in 1906 the law of civil conspiracy also was swept
away, and the trade unions were conceded complete exemp-
tion from responsibility for damages growing out of tortious
acts alleged to have been committed in their behalf.
In the United States, also, prosecutions for "conspiracy"
often followed the early strikes for higher wages. In the
indictment or in the charge to the jury in some of these cases
there was presented the doctrine of the common law that all
combinations to raise wages are illegal. 1 But this was never
unchallenged law in the United States; and in only one case
did a court of final jurisdiction hold this view. 2 Yet it was
considered that there was something unlawful about com-
binations of laborers. They were denounced as being in-
jurious to the public, because they were injurious to employers
and made it difficult for them to compete in distant markets.
Naturally the journeymen looked upon all of these cases as
prosecutions brought by the masters to resist increases of
wages. This was undoubtedly the real motive of the prosecu-
tion ; but in most of these cases the restrictive rules and prac-
tices of the unions were emphasized, not the effort to raise
wages.
In the earliest cases the juries always convicted; but there
was a growing public sentiment against these prosecutions.
After the decade of the 'thirties it was generally recognized
that a combination to raise wages is not of itself a conspiracy.
In 1842, in Commonwealth v. Hunt, 3 the Massachusetts
Supreme Court even held that it was lawful for laborers to
go on strike to gain a closed shop. This decision was very
much more favorable to the workingmen than are those of
1 For these early cases see Documentary History of American Industrial
Society, Vols. Ill and IV.
2 People v. Fisher, 14 Wendell 10 (1835).
3 Commonwealth v. Hunt, 4 Metcalf in (1842).
COLLECTIVE BARGAINING 95
the Massachusetts courts of recent years. After Common-
wealth v. Hunt there were still prosecutions of workingmen
for "conspiracy," but in the cases of the 'fifties and 'sixties
acts of violence were usually involved. There was still com-
plaint about the "conspiracy laws," but they had lost their
meaning.
Thus, in a certain sense, the rights which the workingmen
gained in England through legislation in the 'seventies were
secured to them in the United States without legislation at a
much earlier date. But there was the vital difference that,
while in England the entire conspiracy law in its application
to labor was swept away, it was only modified in this country
by common consent and favorable construction. In England
definite statutes replaced the vague conspiracy law; in the
United States the conspiracy law remained, without ever
being really clarified. The few statutes which were enacted
in reference to labor combinations did little more than to re-
state the common law.
(2) Doctrine of Conspiracy
In the 'eighties a new spirit was manifested in the court
decisions in this country involving labor combinations. These
decisions made clear that labor's right to combine was still
seriously restricted. Part of the explanation of the changed
attitude of the courts is the aggressiveness of labor at that
time. The violence and riots which accompanied the strikes
of that period made the unions seem dangerous combinations.
Another factor was the gradual identification of "business"
with "property." "Good will" and "trade names" have
been recognized as property only within the last century.
Not until the last few decades have the courts gone further
and recognized as property the right of a free access to the
commodity market and to the labor market. Not merely are
contracts already made treated as property, but also the right
to be unhindered by others in making contracts.
It is this right "to do business" which is of greatest im-
portance in labor disputes. Strikers may attack the physical
property of employers; but the police, the military, and the
96 PRINCIPLES OP LABOR LEGISLATION
criminal laws are usually adequate to deal with this menace.
But without any destruction of physical property the em-
ployer's business may be ruined. Picketing may prevent his
getting new employees, and boycotting may keep him from
selling his products. While the modern manufacturer can
often survive the destruction of his physical property, ob-
struction of access to the labor market or to the commodity
market brings with it certain ruin.
The recognition of "business" as "property" afforded an
easy transition to the use of injunctions in connection with
labor disputes. But it is to prevent strikes, picketing, and
boycotts that employers chiefly have recourse to injunctions.
None of these, however, of themselves involve injury to
physical property. Hence, in the complaint in injunction
cases business is treated as property, it being alleged that
the employer's profits will be seriously impaired unless
the court comes to his aid. It is the fact that injunc-
tions protect the right "to do business" which gives them
importance.
Due to these factors, the conspiracy doctrine assumed new
meaning in the 'eighties. It became once more a serious
menace to collective action by labor. Within the last two
decades another menace has arisen: the restraint of trade
doctrine, as expressed in the Sherman antitrust act of 1890.
This statute was held applicable to labor early in the 'nine-
ties; but not until the Danbury hatters' case in 1908 1 was
its full import understood. It was then feared that the
Sherman act rendered all strikes unlawful, if not all labor
organizations. This was probably beyond the thought of the
Supreme Court; but the decisions of some district courts
made this a reasonable fear. Organized labor believes that
the Clayton act, passed in 19 14, has placed it entirely out-
side of the scope of the antitrust laws. This act provides that
the antitrust laws shall not be construed to forbid the exist-
ence of labor organizations, nor to restrain their members
from carrying out the "legitimate objects" thereof. During
the debates in Congress upon its passage, this provision was
interpreted as merely removing the menace of the few extreme
1 Loewe v. Lawlor, 28 Sup. Ct. 301 (1908).
COLLECTIVE BARGAINING 97
decisions, not as completely exempting labor from the anti-
trust laws.
However that may be, it is certain that most of the cases
of which labor complains have been premised, not upon the
Sherman act, but upon the common law doctrine of con-
spiracy. This doctrine makes illegal acts done in pursuance
of an agreement which are legal when done by one person.
One manner of explaining this result is that when men
combine their motives become of importance. Their com-
bination is legal when their motive is primarily to benefit
themselves, and illegal when they aim primarily at the
injury of another. One person may sever all business re-
lations with another, if not under contract to continue
them, regardless of the motives which may lead him to
take this step. But when workingmen combine to go on
strike or to boycott an employer, the courts will inquire
whether their primary motive is injury to the employer or
benefit to themselves.
To understand the full import of the conspiracy doctrine,
it is necessary to note two of its corollaries. One is the
proposition that where the purpose of the combination is
illegal every act done in pursuance thereof is rendered illegal,
though the act may be innocent of itself. Acts normally pro-
tected by the constitutional guarantees of free speech, free
press, and public assembly, become unlawful when done in
furtherance of an unlawful purpose. As put by the Supreme
Court of the United States: 1 "No conduct has such absolute
privilege as to justify all possible schemes of which it may be
a part. The most innocent and constitutionally protected of
acts or omissions may be a step in a criminal plot, and if it is
a step in a plot neither its innocence nor the constitution is
sufficient to prevent the punishment of the plot by law."
Again, if an illegal plot has been formed, all of the conspirators
are responsible for the acts of any of the conspirators done
in pursuance of the common object. Once it is established or
taken for granted that the workingmen have conspired, any
and all of them are liable for acts of violence which may be
committed by some of them.
1 Aikens v. Wisconsin, 195 U. S. 194 (1904).
7
9 S PRINCIPLES OF LABOR LEGISLATION
The soundness of the doctrine that the legality of a com-
bination depends upon the motives which actuate it has been
often questioned in recent years. It is most difficult to de-
termine what is the primary motive of the workingmen in
undertaking a strike or a boycott. They aim both to injure
the employer and to benefit themselves. The bias of the
judge necessarily plays a large role in the determination of
which of these is the controlling motive. The doctrine that
it is the immediate object and not the ultimate purpose which
is controlling, helps but little. In most labor disputes many
questions are at issue. A demand for the closed shop may
be coupled with the demand for an increase in wages. The
latter is recognized by all courts to be legal, while the former
is held illegal by many courts. The result has been con-
fusion and arbitrariness in the law. Where one judge sees
only a lawful combination, another discovers an unlawful
conspiracy.
The fundamental premise in the conspiracy doctrine is
that the many have a power for harm which no one person
can exercise. Hence, while in the class of acts which are
involved in labor disputes the motive is considered unimpor-
tant when they are done by one person, it becomes a deter-
mining factor when they are done in pursuance of an agree-
ment among several. But in American law the corporation
has been made a person. This makes the premise of the con-
spiracy doctrine an absurdity. The power of the large cor-
poration, though a single person in the law, is greater than
that of the combination of workingmen.
Considerations such as these have led some courts to
abandon the old form of statement of the conspiracy doctrine.
They start with the proposition that the employer has a right
of free access to the labor market and to the commodity
market. Intentional interference with this right to do busi-
ness is prima facie wrongful. Only when the injury done to
the employer is the result of the exercise of equal or superior
rights by the workingmen is it justified. These courts dis-
tinguish between malice in fact and malice in law. Whether
personal ill-will and spite, malice in fact, actuates the work-
ingmen, they hold to be of no importance. Malice in law
determines the legality of their actions; and malice in law is
COLLECTIVE BARGAINING 99
merely the intentional infliction of injury without justifica-
tion. 1
In actual application, however, malice in fact is an impor-
tant factor in determining whether there is malice in law.
If intentional infliction of injury without justification is un-
lawful, everything turns upon what is considered a sufficient
justification. This involves an evaluation of the respective
rights of capital and labor. The employer has a right to con-
duct his business without interference. The non-unionist
has a right to earn his living. The union workman has a
right to work or not to work, as he chooses. Which of these
rights is to prevail when the union workmen go upon strike
to compel the employer to discharge the non-unionist? Com-
petition is recognized to be a justification for interference with
the rights of others. But when can the workingmen be said
to compete with their employers? It is competition when
the workingmen aim primarily to benefit themselves, when
there is no malice in fact. Thus, the doctrine that intentional
injury done without justification is unlawful makes the motive
the criterion of the legality of the acts of labor combinations.
Though it differs in statement from the older conspiracy doc-
trine, its substance is the same. As Dean Lewis has put it:
"Those who say with Justice Wells that a man is liable for
the harm he does if he does it maliciously, meaning by malice
without legal excuse, naturally turn to the defendant's motive
as at least one of the elements on which the existence of a
'legal excuse' depends." 2 Labor has profited little from
the coming in of the "legal excuse" doctrine. It has re-
phrased the conspiracy doctrine, but has kept its spirit.
In labor cases there is always much discussion of the rights
of the respective parties. Thus, it is said that employers
have a right to conduct their business as they see fit. On
the other hand, the right of the workingmen to quit employ-
ment is often described as absolute. These abstract state-
ments read well; but the trouble is that in labor disputes
1 Doremus v. Hennessy, 176 111. 608 at p. 615 (1898); Berry v. Dona-
van, is.s Mass. 353, 74 N- E. 603 (1905); Barr v. Trades Council, 53
N. f. Eq. 101 (1894). ^
iry, 1905, p. 118. See also Trowbridge,
"Legal Limitations upon Interference with the Contract Rights of a Com-
petitor," in Yale Review, May, 1910, pp. 55~78.
ioo PRINCIPLES OF LABOR LEGISLATION
these rights come into conflict. This clash of rights has led the
courts to inquire into the motives which actuate the working-
men. To justify holding against labor unions recourse has
been had to the theory that the element of combination radi-
cally changes the situation. Where the court holds to the
conspiracy doctrine, no matter how it may be expressed, the
decision is apt to be against the union.
There are a large number of cases, however, in which the
courts have held that the fact that acts are done in pursuance
of a combination does not affect their legality. 1 Other cases
hold that a bad motive cannot render illegal acts which are
otherwise lawful. 2 Thus, they sweep away the foundations
of the doctrine of conspiracy. The courts of California have
gone furthest in this regard. In California quitting work and
refusing to patronize are held to be absolute rights of the
workingmen, and the fact that these rights are exercised in
pursuance of a combination is treated as immaterial. 3 The
only limitation upon collective action is that labor shall not
resort to coercion or intimidation. The practical conclusion
reached in California is that all strikes and all boycotts are
lawful.
Even if the motive of the workingmen is held to be im-
material, there is wide room for diversity of opinion as to
the means which labor may employ to gain its ends. There
is agreement that coercion and intimidation are unlawful.
But what conduct is coercive and intimidating? In Cali-
fornia, pressure brought to bear upon third parties through
sympathetic strikes and secondary boycotts is treated as
not coercive. On the other hand, picketing is held to be
necessarily intimidating. 4 In other jurisdictions pressure upon
third parties, other than that resulting from persuasion, is
treated as coercion, while picketing is often considered legal.
There is a pronounced tendency in recent cases throughout
the country to say little about the illegal motives of the work-
1 Cooke, The Law of Combinations, Monopolies, and Labor Unions, 1908,
p. 33 and the cases there cited.
2 Ibid., p. 17 and cases cited.
3 Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac. 1027
(1908); Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909).
« Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex
parte Williams, 158 Cal. 550, in Pac. 1035 (1910). _
COLLECTIVE BARGAINING 101
ingmcn and to find the illegality of their conduct in the un-
lawful means they employ. This may seem to be a great
advance for organized labor; but the gain is deceptive. Prac-
tically it makes no difference whether a sympathetic strike
is condemned because the motive of the workingmen is held
to be to injure the employer, or because it amounts to an
effort to coerce a third party. "Coercion" and "intimida-
tion" are so vaguely defined, that almost any conduct can
be considered coercive or intimidating.
Thus, there are three theories which underlie most of the
cases involving collective action by labor. The most funda-
mental of these is the theory that when men combine the
legality of their acts depends upon their motives. Another
holds that intentional interference with the rights of others
is wrongful, unless it results from the exercise of equal or
superior rights. The third theory places emphasis upon the
element of coercion and intimidation involved in the acts of
combination. In their manner of statement these theories
are wide apart; but their practical conclusions have been
much the same. No matter which theory a court may enter-
tain, there is great latitude in its application. Under each
theory much depends upon whether the demands of the work-
ingmen arc justified or unjustified. Hence, the bias of the
judge is likely to be determining.
(j) Court Decisions
a. Strikes. When we pass from the abstract theories of the
courts to their practical conclusions, similar diversity of state-
ment is encountered. In part this is due to real differences
in the conclusions reached. In different states the rights of
organized labor differ widely. Even in the same state it is
often quite impossible to reconcile the several decisions.
Dissenting opinions are very common. The confusion which
exists, however, is due not only to real differences as to the
law, but also to the use of common terms in divergent mean-
ings. Neither the term "strike" nor the term "boycott"
has a standard meaning in law. Some courts speak of the
"strike" as involving only the collective quitting of work.
io2 PRINCIPLES OP LABOR LEGISLATION
Others include within that term not only the collective quit-
ting, but also the agreement which precedes it. Even this
conception is too narrow. To it must be added the idea that
the quitting is but temporary, that the strikers do not consider
that they have permanently quit, but that they expect to
be employed again on different terms, through coercion of
their employers.
As to the term "boycott" it has been truly said that
"scarcely any two courts treating of the subject formulate the
same definition." 1 The essential idea in many of these
definitions is that third parties arc illegally coerced to sever
their business relations with the employer against whom the
union is waging its fight. Thus, it was said in one case that
"the word in itself implies a threat." 2 Similarly Judge Taft
defined a "boycott" as a "combination of many to cause a
loss to one person by coercing others, against their will, to
withdraw from him their beneficial business intercourse,
through threats that, unless those others do so, the many
will cause similar loss to them." 3 Such definitions make no
allowance for the so-called primary boycott, in which no
effort to coerce third parties is involved. In recent years
boycotts against restaurants have been more frequent than
any other boycotts, but they would not fall within the defini-
tion of Judge Taft. On the other hand, sympathetic strikes
and strikes against the use of non-union material are by this
definition treated as "boycotts." Trade unionists at times
use the term in this broad sense, but more commonly only in
reference to the collective refusal to buy the products of an
"unfair" manufacturer or merchant. This is the sense in
which this term will be used in this chapter.
Upon the question of the legality of trade unions per se
there is general agreement among the courts. In only two
cases were unions held to be unlawful organizations. An
inferior Ohio court in 1908 ordered the dissolution of the
Amalgamated Window Glass Workers of America. 4 This
1 Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 96
Pac. 127 (1908).
2 Brace v. Evans, 5 Pa. Co. Ct. 163, at p. 171 (1888).
3 Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730 (1893).
4 Kealy v. Faulkner, 18 (Ohio) Superior and Common Pleas Decision
498 (1908).
COLLECTIVE BARGAINING 103
action was taken upon the theory that the restrictive rules
and practices of this union made it an illegal combination in
restraint of trade at common law. The other case was the
decision of United States Judge Dayton in Hitchman Coal
and Coke Co. v. Mitchell in 1912. 1 Therein it was held that
the United Mine Workers of America is an illegal organization
both at common law and under the Sherman antitrust act,
because it aims at a monopoly of the mine labor of the country
and maintains restrictive rules. The United States Circuit
Court of Appeals, however, reversed this decision. 2 Appeal
has now been taken by the Hitchman Co. to the Supreme
Court of the United States.
With the exception of the two cases noted it has always
been held in the United States that trade unions are lawful
organizations. The theory, entertained in England before
187 1, that trade unions have no standing in court because
they are illegal combinations in restraint of trade, never
gained a foothold in this country.
But while the legality of trade unions is not questioned,
there have been serious restrictions upon their efforts to make
themselves effective. The strike, the most essential of labor's
weapons, has often been condemned as illegal. Much con-
fusion exists as to the legality" of strikes, due principally to the
different meanings in which this term is used. Many courts
hold that "striking," in the sense of collectively quitting work,
is always legal. What is really meant is that quitting work
cannot be directly prevented. The thirteenth amendment has
forbidden slavery and involuntary servitude. The specific
enforcement of labor contracts is slavery. Even when under
a definite time contract, workmen may not be compelled to
labor when they wish to quit. But an action would still lie
against them in damages for the breach of their contract.
In practice but few workmen labor under contracts running
for a definite time. Hence, to all practical intents and pur-
poses, quitting work is always lawful. This is what most
courts mean when they declare that it is lawful to strike for
any or no reason.
But in all strikes something more than quitting work is
1 Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512 (1912).
■ .Mitchell et al. v. Hitchman Coal & Coke Co., 214 Fed. 685 (1914).
io 4 PRINCIPLES OF LABOR LEGISLATION
involved. There is an antecedent agreement to quit, there
are demands upon the employer, and there is a "threat" that
unless he yields a strike will be called. The element of com-
bination enters into the strike. Even after the workmen have
quit they still act in concert. It is the entire combination,
of which the quitting work is but a part, which constitutes
the strike.
The strike in this sense is not always legal. The rule most
generally applied is that when the purpose of the strikers is
primarily to injure the employer or non-union workmen the
strike is illegal. The Massachusetts Supreme Court has best
stated this rule: 1 "To justify interference with the rights of
others the strikers must in good faith strike for a purpose
which the court decides to be a legal justification for such in-
terference. ... A strike is not a strike for a legal purpose be-
cause the strikers struck in good faith for a purpose which
they thought was a sufficient justification for a strike. As
we have said already, to make a strike a legal strike the pur-
pose of the strike must be one which the court as a matter of
law decides is a legal purpose of a strike, and the strikers must
have acted in good faith in striking for such a purpose." In
other cases the fact that the strikers aim to "coerce" the
employer and "threaten" him with loss unless he complies
with their demands is emphasized.
The result of the application of these doctrines has been
that strikes have often been condemned as unlawful. The
Massachusetts cases are the most extreme in this respect.
They hold unlawful all strikes to procure the discharge of
non-union workmen or of the members of a rival union. 2
They condemn also strikes to procure the removal of objec-
tionable foremen, and all sympathetic strikes. 3 The Massa-
chusetts cases even hold that though the strike is one for
higher wages the members of the union may not be coerced
1 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317 (191 1).
2 Plant v. Woods, 176 Mass. 492 (1900); Berry v. Donavan, 188 Mass.
353, 74 N. E. 603 (1905); Alberthaw Construction Co. v. Cameron, 194
Mass. 208, 80 N. E. 478 (1907); Reynolds v. Davis, 198 Mass. 294, 84
N. E. 457 (1908); Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 (1911).
Slightly contrary, Pickett v. Walsh, 192 Mass. 572 (1906).
3 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317; Hanson v. Innis,
211 Mass. 301, 97 N. E. 756 (1912); Reynolds v. Davis, 198 Mass. 294,
84 N. E. 457 (1908).
COLLECTIVE BARGAINING 105
to participate therein through threat of a fine or of expulsion
from the union. 1 In Connecticut and in Vermont strikes
against non-unionists have been condemned. 2 Closed shop
strikes have been held unlawful also in New Jersey, as have
strikes against the use of non-union material. 3 In Penn-
sylvania there is a statute which reads to a layman as though
it legalized all strikes. Yet the courts of that state have
held unlawful strikes growing out of jurisdictional disputes,
closed shop strikes, and strikes against non-union material. 1
In Illinois the question of the legality of a strike for the closed
shop has been several times before the supreme court. In
1905 such a strike was held to be unlawful; in 19 12 the court
split evenly upon this question. 5 New York has a statute
legalizing "peaceable assembling or cooperation" by work-
ingmen "for the purpose of securing an advance in the rate
of wages." Elsewhere such strikes are held lawful, even
without any such statute. Strikes for many purposes have
been condemned by the New York courts. The court of
appeals has held unlawful strikes to collect fines from em-
ployers. 8 Inferior courts have condemned strikes against non-
union material. 7 Some New York cases also hold sympathetic
strikes to be unlawful. 8 The question of the legality of strikes
1 Willicut & Sons Co. v. Bricklayers' Benevolent and Protective Union,
200 Mass. no, 85 N. E. 897 (1908); Casson v. Mcintosh, 199 Mass.
443 (1908).
2 Wyeman v. Deady, 79 Conn. 414 (1906); Conners v. Connolly, 86
Conn. 641, 86 Atl. 600 (1913); State v. Dyer, 67 Vt. 790 (1894).
3 Booth v. Burgess, 72 N. J. Equity 181, 65 Atl. 226 (1906); Brennan
v. United Hatters, 73 N. J. 467, 65 Atl. 165 (1906); Blanchard v. District
Council, 78 N. J. 737, 71 Atl. 1131 (1909); Ruddy v. Plumbers, 79 N. J.
467, 75 Atl. 742 (1910).
4 Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327 (1903); House Painters
v. Feeney, 13 Pa. Dist. 335 (1904); Bausbach v. Rieff, 237 Pa. 482, 85
Atl. 762 (1912); Patterson v. Trades' Council, 11 Pa. Dist. 500 (1902);
Purvis v. Carpenters, 214 Pa. 348, 63 Atl. 585 (1906).
5 O'Brien v. People, 216 111. 354, 75 N. E. 108 (1905); Kemp v. Division
No. 241, Amal. Association of Street and Electric Ry. Employees, 255
111. 213, 99 N. E. 389 (1912).
6 People v. Barondess, 133 N. Y. 649 (1892). See also People v. Wein-
sheimer, 102 N. Y. Supp. 579 (1907).
7 People v. McFarlin, 89 N. Y. Supp. 527 (1904); Newton Co. v. Erick-
son, 126 N. Y. Supp. 949 (191 1).
8 Bcattie v. Callanan, 73 N. Y. Supp. 518, 81 N. Y. Supp. 413 (1901-03);
Schlang v. Ladies' Waist Makers, 124 N. Y. Supp. 289 (1910). Contrary,
Searle Mfg. Co. v. Terry, 106 N. Y. Supp. 438 (1905).
106 PRINCIPLES OF LABOR LEGISLATION
for the closed shop has often come up in New York. The de-
cisions of the court of appeals upon this issue arc very difficult
to reconcile. In the Curran v. Galen case in 1897 1 a non-
union workman who lost his job because his employer entered
into a closed shop agreement was held to have an action
against the union. In the Cumming case in 1902 2 the ma-
jority of the court squarely sustained a strike to establish a
closed shop. In the Jacobs v. Cohen case in 1905, 3 however,
an effort was made to reconcile the two prior decisions and to
consider them both as law. The doctrine evolved seems to be
that the closed shop is lawful as long as it does not give the
union a monopoly in the community in which it operates.
Enough cases have been cited to illustrate the attitude of
the courts toward strikes. Strikes solely and directly involv-
ing the rate of pay or the hours of labor are everywhere con-
sidered legal. But strikes to gain a closed shop, sympathetic
strikes, and strikes against non-union material have been con-
demned in many jurisdictions. Only in California is it settled
law that all strikes are legal.
b. Boycotts. But because strikes are illegal it does not
follow that there is any effective way of preventing them.
Arthur v. Oakes 4 authoritatively established that laborers
may under no circumstance be enjoined from quitting work.
In some injunctions, however, "conspiring to quit" has been
enjoined. In others the union officers have been prohibited
from advising or ordering the workmen to go upon strike, or
from paying strike benefits. In some recent cases such in-
junctions have been condemned as an indirect method of
compelling the workmen to labor. 5 Usually injunctions are
not taken out until after the workmen have quit. Almost
never have the courts acted upon the theory that, inasmuch
as the strike is unlawful, all efforts of the workingmen to
1 Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 (1897).
2 National Protective Association of Steamfitters and Helpers v.
Cumming, 170 N. Y. 315, 63 N. E. 369 (1902).
3 Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5 (1905).
4 Arthur v. Oakes, 63 Fed. 310 (1894).
5 Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 803, 817 (1894); Wabash
R.R. v. Hannahan, 121 Fed. 563 (1903); Barnes v. Berry, 157 Fed. 883
(1908); Delaware, etc., R.R. Co. v. Switchmen, 158 Fed. 541 (1908);
Kemp v. Div. No. 241 Amalgamated Association of Street and Electric
Railway Employees, 255 111. 213, 99 N. E. 389 (1912).
COLLECTIVE BARGAINING 107
make it effective must be prevented. Whether the strike
is considered lawful or unlawful by the courts makes little
difference either in the phraseology of the injunction or in its
enforcement. In reference to damage suits the situation is
different. Most of the cases in which closed shop strikes
have been condemned grew out. of actions for damages brought
by non-union workmen who had lost their jobs because of
such strikes. The suits were premised upon the illegality of
the strikes, not upon the unlawful conduct which may have
accompanied them.
The boycott was condemned as unlawful as early as 1886. 1
Many decisions have since confirmed this view. As the
Supreme Court of the United States has said, the courts are
nearly unanimous in condemning boycotting as wrongful. 2
In a few states it is specifically prohibited by statute. 3 The
reasoning relied upon in condemning the boycott has gen-
erally been that it amounts to an effort to "coerce" third
parties. Hence it falls within the category of conspiracies.
In some cases an effort is made to distinguish the primary
boycott from the secondary boycott, the latter being the
boycott of a third party, usually a merchant who sells the
product of the employer primarily boycotted. Many courts
in fact use the term "boycott" as embracing only secondary
boycotts. But this distinction in practice amounts to little.
Few employers of labor sell directly to the consumers. Hence,
there can be but few primary boycotts. To boycott a manu-
facturer pressure must usually be brought to bear upon the
dealers who handle his products. This introduces the third
party and the element of the secondary boycott. It is sig-
nificant that all of the statements holding primary boycotts
legal are obiter and occur in cases in which the courts found
an illegal secondary boycott.
In California boycotting has been held to be lawful.' 1
1 People v. Wilzig, 4 N. Y. Crim. 403 (1886); People v. Kostka, 4 N. Y.
Crim. 429 (1886).
2 Loewc v. Lawlor, 208 U. S. 274 (1908).
3 See Harry W. Laidlcr, Boycotts and the Labor Struggle, 1913, pp. 174-
177.
4 Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac.
1027 (1908); Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324
(1909).
108 PRINCIPLES OF LABOR LEGISLATION
Though its supreme court has not spoken, this seems to be
the view also in Oklahoma. 1 Some New York cases also have
sustained the boycott. 2 Both in Missouri and in Montana it
has been held that the constitutional guarantees of free speech
and free press give laboring men the right to refer to em-
ployers as unfair. 3 Later decisions in both states, however,
have made clear that this does not mean that boycotting is
legal, but only that the printing and the distribution of boy-
cott circulars may not be directly enjoined. 4
Though boycotting has for a long time been held illegal
in most jurisdictions, it is only in recent years that organized
labor has taken alarm at these decisions. Until 1908 boy-
cotts were conducted openly and fearlessly. Sometimes in-
junctions were taken out against boycotts, but they only
increased their effectiveness, through giving them wider pub-
licity. The Danbury hatters' case in 1908 5 first brought
home to labor that damages might be collected for losses
sustained through boycotts. The American Federation of
Labor at once discontinued its "We Don't Patronize" list.
In general, fewer boycotts were thereafter undertaken and
they were conducted much less openly. There are still
numerous local boycotts and some conducted upon a nation-
wide scale; but there can be no doubt that the attitude of
the courts toward the boycott seriously restricts labor's use
of this collective weapon.
c. Picketing. Strikes cannot be effective when the em-
ployer is able to secure a sufficient number of new employees.
Hence the strikers endeavor to prevent the employer from
getting them. They may do this either through persuasion
1 Laidler, Boycotts and the Labor Struggle, p. 414.
2 Sinsheimer v. Garment Workers, 28 N. Y. Supp. 321 (1894); People v.
Radt, 71 N. Y. Supp. 846 (1900); Cohen v. Garment Workers, 72 N. Y.
Supp. 341 (1901); Foster v. Retail Clerks, 78 N. Y. Supp. 860 (1902);
Butterick Pub. Co. v. Typographical Union, 100 N. Y. Supp. 292 (1906).
To contrary, Matthews v. Shankland, 56 N. Y. Supp. 123 (1898); Sun
Print. & Pub. Co. v. Delaney, 62 N. Y. Supp. 750 (1900); Mills v. U. S.
Print. Co., 91 N. Y. Supp. 185 (1904).
3 Jeans Clothing Co. v. Watson, 168 Mo. 133 (1902); Lindsay & Co- v.
Montana Fed. of Labor, 37 Mont. 264 (1908).
4 Lohse Patent Door Co. v. Fuelle, 215 Mo. 421 (1908); Iverson v.
Dilno, 44 Mont. 270 (191 1).
6 Loewe v. Lawlor, 208 U. S. 274 (1908).
COLLECTIVE BARGAINING 109
or through intimidation. All are agreed that intimidation
is unlawful. Persuasion, on the other hand, is generally law-
ful. An exception must be made when the employees per-
suaded to leave work are under definite unexpired contracts.
It is a rule of the common law that action lies against a third
person who persuades another to break a contract. This rule
has quite often been invoked in labor cases in this country. 1
In some cases this rule has been stretched to apply to the
persuasion to quit employment of workmen not under definite
contracts. 2 The theory is that they would have continued at
work but for the interference of the third parties. The New
Jersey courts have most frequently condemned persuasion,
upon this theory, and this in spite of the fact that in that state
there is a statute declaring it to be legal singly or collectively
to persuade another to work or abstain from working. 3
The more generally accepted view is that if there are no
definite contracts the strikers may persuade the new employees
to join them. They may employ persuasion, but must not
resort to intimidation. But there is no distinct dividing line
between persuasion and intimidation. In strikes, and often
also in boycotts, the union stations pickets near the employer's
premises to observe and speak to prospective employees or
customers. Does the establishment of such a picket line of
itself amount to intimidation? One view was forcibly ex-
pressed by United States Judge McPherson: 4 "There is and
can be no such thing as peaceful picketing, any more than
there can be chaste vulgarity, or peaceful mobbing, or lawful
lynching. When men want to converse or persuade, they do
not organize a picket line. . . . The argument seems to be that
anything short of physical violence is lawful. . . . But the
1 Haskins v. Royster, 70 N. C. 601 (1874); Bixley v. Dunlap, 56 N. H.
456 (1876); Beekman v. Marsters, 195 Mass. 205 (1907); Flaccus v.
Smith, 199 Pa. 128, 48 Atl. 894 (1901); Employing Printers' Club v.
Doctor Blosser Co., 122 Ga. 509, 50 S. E. 353 (1905); Hitchman Coal &
Coke Co. v. Mitchell, 202 Fed. 512 (1912).
2 Walker v. Cronin, 107 Mass. 555 (1871); O'Neil v. Behanna, 182 Pa.
236, 37 Atl. 843 (1897); Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152
(1901); George Jonas Glass Co. v. Glass Bottle Blowers, 77 N. J. Eq.
219, 79 Atl. 262 (191 1); Southern R.R. Co. v. Machinists, ill Fed. 49
(1901); Machine Co. v. Robinson, 84 N. Y. Supp. 837 (1903).
3 New Jersey, act of February 14, 1883.
♦Atchison, T. & S. F. Ry. v. Gee, 139 Fed. 582 (1905).
no PRINCIPLES OF LABOR LEGISLATION
1 K-;uvful, law-abiding man can be and is intimidated by gesticu-
lations, by menaces, by being called harsh names, and by being
followed, or compelled to pass by men known to be unfriendly.
. . . The frail man, or the man who shuns disturbances, or the
timid man, must be protected, and the company has the right
to employ such."
This view, that picketing always amounts to intimidation,
has been adopted also by the courts of California. 1 Though
they recognize the strike and the boycott as legal, they will
not permit picketing in furtherance of either. In a Massa-
chusetts case the presence of two pickets at a factory entrance
was held to be intimidating. 2 Colorado and Washington have
statutes forbidding picketing. 3 All picketing has been con-
demned also by the supreme courts of Illinois, Michigan, and
New Jersey and in several federal cases. 4
There are even more cases which hold that peaceful picket-
ing is lawful. There have been definite expressions to this
effect from the supreme courts of Indiana, Missouri, and Vir-
ginia; and it is well-established law in New York. 5 But this
still leaves open the question, when is picketing peaceful ? In
answer to this question a federal court said: 6 "The defend-
ants claim to have the belief that physical violence alone is
to be condemned. But all persons know that intimidation
by words, by menaces, by numbers, by position, and by many
fierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex
parte Williams, 158 Cal. 550, ill Pac. 1035 (1910).
2 Vegelahn v. Gunther, 167 Mass. 92 (1896).
3 Colorado, Laws 1905, p. 161 ; Washington, Laws, 1915, C. 181.
4 Franklin v. People, 220 111. 355 (1906); Barnes v. Typographical
Union, 232 111. 402, 424 (1908); Beck v. Railway Teamsters, 118 Mich.
497. 77 N. W. 13 (1898); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133, 112
N. W. 723 (1907); George Jonas Glass Co. v. Glass Bottle Blowers, 72
N.J. Eq. 653, 66 Atl. 953 (1907), 77 N. J. Eq. 219, 79 Atl. 262 (1911);
Otis Steel Co. v. Molders, no Fed. 698 (1901); Knudsen v. Benn, 123
Fed. 636 (1903); Kolley v. Robinson, 187 Fed. 415 (1911).
6 Karges Furniture Co. v. Woodworkers, 165 Ind. 421, 75 N. E. 877
(1905); City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908);
Everett Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 272
(1906); Krebsw. Rosenstein, 66 N. Y. Supp. 42 (1900); Rogers v. Evarts,
17 N. Y. Supp. 264 (1891); Foster v. Retail Clerks, 78 N. Y. Supp. 860
(1902); Mills v. U. S. Printing Co., 91 N. Y. Supp. 185 (1904); Searle
Mfg. Co. v. Terry, 106 N. Y. Supp. 438 (1905); Butterick Pub. Co. v.
Typographical Union, 100 N. Y. Supp. 292 (1906).
6 Union Pacific R.R. Co. v. Ruef, 120 Fed. 102 (1903).
COLLECTIVE BARGAINING in
other things is just as effective as by using clubs or brass
knuckles or knives."
It is the manner in which the picketing is conducted which
determines its legality. Veiled threats toward the new em-
ployees are condemned just as strongly as are acts of physical
violence. Many courts have held that if the number of the
pickets is large, the picketing is necessarily intimidating. 1
Others have gone so far as to assert that speaking to the new
employees against their will is intimidation. 2 Often the pay-
ment of union benefits to induce the new employees to join
the strikers has been prohibited in injunctions; and there are
a few decisions sustaining such prohibitions. 3 In most cases
involving picketing which come before the courts the evidence
is contradictory. On behalf of the strikers testimony is pre-
sented that the picketing has been conducted in an orderly
manner, and that there have been no threats or acts of vio-
lence. The employers in their turn allege that force, threats,
and violence have been resorted to, and often they are able
to point to specific acts of this character. Usually, however,
the evidence leaves doubt as to the responsibility of the union
for the acts of violence which have occurred. Such respon-
sibility is assumed in many cases. There are few standards
which the courts may employ to determine whether picketing
has in fact been peaceful or intimidating. Hence, again, their
bias is often determining, and the decisions have more fre-
quently gone against organized labor than in its favor.
Strikes, boycotts, and picketing have often been held il-
legal. These are the weapons through which labor secures
and maintains collective bargains with employers. Collective
1 American Steel & Wire Co. v. Wire Drawers, 90 Fed. 608 (1898);
Union Pacific R.R. Co. v. Ruef, 120 Fed. 102 (1903); Pope Motor Car
Co. v. Keegan, 150 Fed. 148 (1906); Allis-Chalmers Co. v. Iron Mulders,
150 Fed. 155 (1906); Foster v. Retail Clerks, 78 N. Y. Supp. 860 (1902);
Searlc Mfg. Co. v. Terry, 106 N. Y. Supp. 438 (1905); O'Neil v. Behanna,
182 Pa. 236, 37 Atl. 843 (1897); Jones p. Van Winkle, 131 Ga. 336, 62
S. E. 236 (1908).
2 Frank v. Herold, 63 X. J. Eq. 443, 52 Atl. 152 (1901); Jersey Printing
Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 (1902); Goldfield Mines Co.
v. Miners' Union, 159 Fed. 500 (1908).
3 Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 2^0
(1902); TunstaH v. Steans Coal Co., [95 Fed. 808 (1911).' To 1
trary, Levy v. Rosenstein, 66 N. Y. Supp. ioi 1 1900); Everett-"V
Co. v. Typographical Union, 105 Va. 188, 53 S. E. 272 (1901.;.
ii2 PRINCIPLES OF LABOR LEGISLATION
agreements are worthless without a strong union to back them
up. They are not enforceable in courts of law. The unwill-
ing employer is kept from violating them only through fear
of a strike. Real collective bargaining implies equal strength
upon both sides. It results only when each side is aware of
the strength, ability, and willingness of the other. Then a
joint conference is held and a compromise is effected. Neither
will violate the agreement while the other party maintains
its strength. Thus, it will be seen that restrictions upon the
weapons which labor may employ in trade disputes arc in
fact limitations of its right to bargain collectively.
(4) Restrictions on Employers and Employees
The Clayton act of 1914 l many believe has removed the
restrictions which hamper trade unions. The most tangible
gain to labor is the provision for jury trial in contempt cases
where the offense charged is also indictable as a crime. This
act further provides that injunctions issued by the federal,
courts shall not prohibit the quitting of work, the refusal to
patronize, peaceful picketing, or peaceful persuasion. Nor
are these acts to be considered "violations of any law of the
United States." These provisions are to apply whether these
acts are done "singly or in concert." Yet those in charge of
this legislation pointed out that it did not modify the law of
conspiracy. When workingmen combine to injure an em-
ployer or non-unionists, their illegal purpose colors all their
conduct. Quitting work, for instance, though ordinarily
lawful whether done "singly or in concert," becomes unlawful
when undertaken in pursuance of an unlawful conspiracy.
Hence, the Clayton act seems to make no material modifica-
tions in the substantive rights of employers and employees.
Certainly it does not affect cases in the state courts, which
far outnumber those in the federal courts.
Do similar restrictions apply to employers? In theory,
yes, in practice, no. While the workingmen's right to strike
is restricted, the employers' right to discharge is absolute.
United States, Laws 1913-1914, C. 321.
COLLECTIVE BARGAINING 113
In the last decades many states have enacted statutes pro-
hibiting employers from coercing workmen into surrendering
their right to belong to labor unions through threatening
them with discharge unless they comply with this demand.
These statutes have uniformly been held unconstitutional, and
the Supreme Court of the United States is among the courts
holding this view. 1 This means that the employer may es-
tablish a shop closed to all union workmen. Some recent
cases even hold that where workmen have signed an agree-
ment to the effect that they will not belong to any union, all
efforts made thereafter to induce them to join a union are il-
legal. 2 With these decisions must be contrasted those relat-
ing to the establishment of a closed shop through the effort of
the union. It is true that it has often been stated that there
is nothing unlawful about an agreement that only union men
shall be employed, if the employer voluntarily enters into such
an arrangement. The hub of the situation is that such con-
tracts are usually not entered into voluntarily, but are gained
through strikes. As has been noted, such strikes have often
been condemned as an effort to injure non-unionists, or as
amounting to coercion. Yet the Supreme Court has held
that it is not "coercion" to threaten to discharge a workman
unless he will renounce his union membership.''
The theory of the absolute right of the employer to dis-
charge results also in the virtual legalization of the blacklist.
Most of the states of the union have laws prohibiting black-
listing; but they have been dead letters. The explanation
lies in the fact that employers may discharge or refuse to
employ any workman who is an "agitator" or who belongs to
a union. Antiblacklist laws which merely prohibit the circu-
lation of information as to who are union members are prob-
ably constitutional, although one federal decision does not
even grant that much. 4 He who circulates this information
'Adair v. United States, 208 U. S. 161 (1908); Coppage v. Kansas,
35 Sup. Ct. 240 (1915).
2 Flaccus r. Smith, 199 Pa. 128, 48 Atl. 894 (1901); Hitchman Coal
& Coke Co. v. Mitchell, 202 Fed. 512 (1912. Overruled in 214 Fed. 685,
but further appeal taken to the Supreme Court). This is also the basis
of the injunction involved in the case of Bittner v. Coal Co., 214 Fed.
716 (1914).
3 Coppage v. Kansas, 35 Sup. Ct. 240 (1915).
*Boyer v. Western Union, 124 Fed. 246 (1903).
8
ii4 PRINCIPLES OF LABOR LEGISLATION
may be punished; but the employer who acts upon it is entirely
within his rights. His reasons for refusing to employ or for
discharging cannot' be questioned in any court. In this day
of the telephone, the telegraph, water-marked paper, and the
card system, it is well-nigh impossible to prove who furnished
the information upon which a blacklisted workman was dis-
charged. Moreover, the supplying of such information by a
former employer upon the request of the present employer
is regarded as privileged. It is expressly declared legal in
the antiblacklist laws of many states. This is the simplest
and most common manner in which an employer secures in-
formation about the "records" of his employees. A work-
man discharged for "union activity" as a result of informa-
tion secured in this manner has no redress against either his
employer or his former employer. If the information was
supplied by an employers' association or furnished gratuitous-
ly by the former employer, the blacklisted workman cannot
recover unless he proves who furnished the information and
that he was discharged as a result thereof. He cannot es-
tablish either proposition unless the employer who discharged
him is in sympathy with him. 1 This is not the case where
the reason for the discharge was membership in a labor union.
To all intents and purposes blacklisting is legal throughout
the United States.
That the blacklist is a powerful weapon in combating labor
organizations cannot be questioned. To offset its effects
unions have often adopted the policy of giving employment
as organizers to members who have been blacklisted. Nor
is there any doubt that this weapon is extensively used. There
is no industrial center in which there are not scores who claim
to have been blacklisted. The boycott in many respects is
the counterpart of the blacklist; but while blacklisting is prac-
tically unrestricted by the laws and the courts, labor's use
of the boycott is very seriously interfered with.
In theory the same principles are applied in reference to
the activities of employers as to those of labor. The absolute
right of employers to 'discharge is stated to be paralleled by
1 This explains why workmen who were discharged upon the demand
of employers' liability insurance companies have sometimes been able
to recover from these companies.
COLLECTIVE BARGAINING 115
the right of the workmen to quit for any or no reason. In
all the cases in which the right to discharge was at issue no
element of combination was involved. Hence, it may be
said that employers have not been freed from the conspiracy
laws. But the important fact is that in cases involving em-
ployers this question does not arise. Even when employers
act in concert, the number of individuals involved is usually
small, and the proof that there is a combination is difficult
to obtain. Because of their small numbers employers can
effectively act together without giving much publicity to their
combination. In fact, in the case of the blacklist, its success
depends upon secrecy. On the other hand, every collective
action of labor must necessarily be public. A strike cannot
take place without a meeting and a vote. The boycott de-
pends for success upon publicity. The union must resort to
the public rights of free speech, free press, and public assembly;
but the employers' association succeeds through private cor-
respondence. Again, it is evident that the collective activities
of labor are much more likely to interfere with the rights
of the public than are the acts of the employers. Pickets
must use the streets, agitation may lead to violence, but the
procuring of new employees is but an incident in the regular
conduct of business. Another factor operating to give em-
ployers a real advantage is the difficulty of getting the ques-
tion of the legality of their actions before the courts. The
strike and the boycott may be questioned because they in-
vade the rights of the employers to free access to the labor
market and to the commodity market. But no right of the
workingman is violated when he is discharged, or when a new
man is given the job which he quit in order to go on strike.
(5) Justification of True Collective Bargaining
Viewing the situation from the point of view of the practi-
cal results, the conclusion is reached that the law to-day
seriously restricts labor in its collective action, while it does
not interfere with the parallel weapons of the employers. Is
this result socially desirable? Fundamentally the question is
whether collective bargaining by labor should be encouraged
n6 PRINCIPLES OF LABOR LEGISLATION
or discouraged. If collective bargaining is desirable, or-
ganized labor must be conceded the free use of the methods
through which it can secure and maintain trade agreements.
The right of organization is valueless unless it is accompanied
by the right to make the organization effective.
The issue of the desirability of collective bargaining by
labor is much confused by the parallel of the combination to
control prices. Combinations to monopolize commodities are
against public policy ; why then should labor unions be favored
in the law? This parallel overlooks the vital distinction be-
tween commodities and labor. The commodity, labor, can
never be divorced from the human being, the laborer. The
labor contract is a bargain, not only for wages, but also for
hours of labor, physical conditions of safety and health, risks
of accident and disease. Labor cannot be placed upon the
same plane with commodities, which are external and un-
human. It is in the interest of the public that the most favor-
able conditions of labor shall prevail. Since labor constitutes
such a large part of the public, the general welfare depends
intimately upon its advancement. While the public suffers
from high prices, it benefits from high wages.
It is apparent that the individual laborer is at a great dis-
advantage in bargaining with an employer. The employer
is often a great corporation, which is itself a combination of
capital. But the disadvantage of the laborer is even more
fundamental. Being propertyless, he has no opportunity to
make his living but to work upon the property of others.
Having no resources to fall back upon, he cannot wait until
he can drive the most favorable bargain. It is a case of the
necessities of the laborer pitted against the resources of the
employer. It is only when labor bargains collectively that
its bargaining power approximates equality with that of
capital.
To treat labor unions as being in the same category with
combinations to control prices is a misunderstanding of their
functions. Labor unions are not business organizations, like
corporations or partnerships. They have nothing to sell.
When they enter into a trade agreement they do not obligate
themselves to furnish a given number of laborers, or any
laborers, at the terms agreed upon. They cannot do so,
COLLECTIVE BARGAINING 117
since they cannot compel their members to labor if these do
not wish to work. The members of the union do not labor
for the organization, but for themselves and their families.
The difference between a labor union and a business organiza-
tion, and between a trade agreement and an ordinary con-
tract, is well expressed in a recent decision of the Supreme
Court of Kentucky: 1 "A labor union, as such, engages in no
business enterprise. It has not the power, and does not
undertake, to supply employers with workmen. It does not,
and cannot, bind its members to a service for a definite, or
any period of time, or even to accept the wages and regulations
which it might have induced an employer to adopt in the
conduct of his business. Its function is to induce employers
to establish usages in respect to wages and working conditions
which are fair, reasonable, and humane, leaving to its mem-
bers each to determine for himself whether or not and for
what length of time he will contract with reference to such
usages. ... It [the trade agreement] is just what it, on its face,
purports to be, and nothing more. It is merely a memoran-
dum of the rates of pay and regulations governing, for the
period designated, enginemen employed on the Chattanooga
division of the company's railway. Having been signed by
the appellee, it is evidence of its intention, in the conduct of
its business with enginemen on said division, to be governed
by the wages and rules, and for the time therein stipulated.
Enginemen in, or entering, its service during the time limit
contract with reference to it. There is on its face no con-
sideration for its execution. It is therefore not a contract.
It is not an offer, for none of its terms can be construed as a
proposal. It comes squarely within the definition of usage as
defined in Byrd v. Beall, 150 Ala. 122, 43 So. 749. There
the court, in defining usage, said 'usage' refers to 'an estab-
lished method of dealing, adopted in a particular place, or
by those engaged in a particular vocation or trade, which
acquires legal force, because people make contracts with ref-
erence to it.'"
'Hudson v. Cincinnati, etc., R.R. Co., 152 Ky. 711, 154 S. W. 47
(1913). See also Burnetta v. Marcclline Coal Co., 180 Mo. 241 (1906);
Barnes v. Berry, 157 Fed. 883 (1908); Fell v. Berry, 108 N. Y. Supp. 669
(1907). To the contrary, Jacobs v. Cohen, 183 N. Y. 207 (1905).
n8 PRINCIPLES OF LABOR LEGISLATION
The so-called "contract" which a trade union makes with
an employer or an employers' association is merely a "gentle-
men's agreement," a mutual understanding, not enforceable
against anybody. It is an understanding that, when the real
labor contract is made between the individual employer and
the individual employee, it shall be made according to the
terms previously agreed upon. But there is no legal penalty
if the individual contract is made differently. To enforce the
collective contract would be to deny the individual's liberty
to make his own contract.
That capital and labor should be treated equally is a prop-
osition fundamental to American law. But the dual bar-
gaining functions of capital must be distinguished. The price
bargain is something very distinct from the wage bargain.
The corporation deals with both; the laborer only with the
wage bargain. Manufacturers' associations deal with the price
bargain; employers' associations with the wage bargain.
Trade unions do not deal with consumers at all. Their func-
tion is to offset the advantage the employer enjoys in bar-
gaining about wages with the individual laborer. Equal pro-
tection of the law does not consist in treating a trade union
like a manufacturers' association, but in treating it like an em-
ployers' association. This is not class legislation, but sound
classification.
Unions of labor are just as likely to abuse their power as
are unions of manufacturers. No organization can be trusted
with unlimited power. In the case of the price bargain the
public has been compelled to enact railroad commission laws,
in order to keep down the prices charged by corporations. Is
there similar reason for public interference in the case of the
wage bargain? Trade unions have hitherto been treated as
organizations for private purposes. 1 Should they be subjected
to public regulation, as have been the monopolistic combi-
nations?
There is a better safeguard than public regulation against
the abuse of power by trade unions. This is the power of the
employers to resist such demands. Herein lies the raison
d'etre of the employers' association. It is to the interest of
^ee Coppage v. Kansas, 35 Sup. Ct. 240 (1915).
COLLECTIVE BARGAINING 119
the public, not only that labor shall be free to bargain collec-
tively, but that the employers should also be allowed to
combine. Without organization upon both sides there is only
one-sided or pseudo-collective bargaining. When a corpora-
tion deals with individual consumers or individual wage-
earners, all the advantages of combination are on one side.
Similarly, pseudo-collective is the bargaining maintained by the
so-called "open shop" organizations of employers. Each
wage-earner is compelled to accept the bargain which the
association requires its members to demand when hiring a
laborer. Labor unions also practise one-sided collective bar-
gaining when they compel employers as individuals to "sign
up" the agreements they offer. They use the power of their
combination to prevent the employers from acting collec-
tively. The labor union which refuses to recognize the em-
ployers' association is setting up a pretense of collective bar-
gaining, similar to the pretense of the employers' association
when it proclaims, under the name of the "open shop," that
it is entirely willing to employ union men but refuses to con-
fer with the union. It is the usual outcome of such practices
in these one-sided bargains for the union to insist on the
closed shop against non-unionists, and for the employers under
the name of "open shop" to run a non-union shop. Theoreti-
cal principles of freedom are proclaimed to gain popular or
legal support; but in actual practice each side when pos-
sessed of unlimited power rides rough-shod over the rights
of others.
Real collective bargaining is something very different. It
is premised upon organization on both sides. This requires
getting together in a joint conference, and, through represen-
tatives, making a trade agreement binding upon individuals
on both sides. A compromise between the extreme positions
is the result. While it is in force, a trade agreement is the
supreme law of the industry. It may even override the con-
stitutions and the by-laws of the two associations. Dictation
is autocracy; conference is democracy. Trade agreements
are likely to be tolerably satisfactory to both sides, as both
have had a voice in framing them. In real collective bargain-
ing also lies the protection of the pub lic. It means fair condi-
tions for labor, and yet conditions under which industry
120 PRINCIPLES OF LABOR LEGISLATION
can operate. It is an assurance of a minimum of industrial
disturbance.
Restrictions in the law upon collective action upon either
side are inconsistent with collective bargaining. Complete
freedom to combine should be given to both employers and
employees. This policy requires no change in the status in
law of employers' associations and the weapons they use
to combat labor. Some dead-letter statutes are directed
against them ; but these are of no practical importance. It is
otherwise as to the restrictions upon collective action by labor.
Moreover, these restrictions are likely to be even more seri-
ous in the near future. The damage suit looms up as a new
menace to labor. The injunction has lost many of its terrors
on account of the frequency of its use. It is now more of an
annoyance than a real obstacle to labor; but the damage suit
is likely to mean the destruction of unionism in its present
form.
(6) Damage Suits
While there were earlier damage suits, and judgments as
well, this menace to labor escaped notice until the recent
Danbury hatters' case. 1 As a result of the decision of the
Supreme Court in this case, a judgment of nearly $300,000
(including interest) is outstanding against some 175 members
of the hatters' union. It is quite probable that the houses
and bank accounts of these union members which have been
attached will be sold to meet this judgment. The damages
awarded were for losses sustained through a boycott conducted
by the union officers. Only a few of the defendants are
charged with having had any direct connection with this
boycott. They are held liable because they remained mem-
bers of the union after wide publicity was given to the boy-
cott.
The importance of this case cannot be overstated. It
establishes the principle that the members of labor unions
are responsible without limit for the unlawful actions of the
union officers and agents which they have in any manner
^awlor v. Loewe, 235 U. S. 522 (1915).
COLLECTIVE BARGAINING 121
authorized or sanctioned. Such antecedent authorization or
subsequent approval of unlawful acts does not require to be
expressed, but may be inferred from all the facts in the
situation. Membership in the union constitutes approval of
unlawful acts of the officers and agents when they have been
given wide publicity. The Danbury hatters' case arose under
the Sherman antitrust act; but the menace of the damage
suit does not depend upon that statute. Damages may be
recovered not only for restraint of interstate commerce, but
for any wrongful act of a labor union. Under the Sherman
act triple damages may be collected, but without that act
only single damages, yet even single damages are likely to
bankrupt all unions. Nor can damages be secured only for
boycotting. Recovery can be had also for losses sustained
through lawful strikes, or through picketing, or because of
any other wrongful conduct.
Within the next few years there are likely to be many
damage suits against labor unions and their members. Sev-
eral such suits are already pending (191 5). The principles
established in the Danbury hatters' case render probable that
judgments will often be recovered. It may become impos-
sible for a workman with a little property to belong to a
labor union. Union funds are likely to be exhausted in court
fights and to satisfy judgments. It is not unlikely that the
unions will endeavor to offset this menace by greater secrecy.
The Danbury hatters' case turned upon the point that so
much publicity had been given to the boycott that all the
members of the union could reasonably be presumed to have
knowledge thereof. Thus, a premium is put upon secrecy
and encouragement is given to the slugger. But this means
the end of conservative unionism. Collective bargaining
cannot be conducted in secret.
The menace of the damage suit is best brought out in the
contrast between the position of the members of labor unions
and that of stockholders in corporations. It is evident that
labor unions are very much looser organizations than are cor-
porations. Unions must entrust their officers with great
power; the rank and file of the members know little about
what the officers are doing. Even when members disapprove
of the actions of the officers, they can ill afford to get out of
122 PRINCIPLES OF LABOR LEGISLATION
i he union, as they would lose their insurance benefits and
in many industries would find it difficult to get a job. These
are reasons why the members of labor unions should not be
held to the same accountability for acts done in their be-
half as are stockholders in corporations. But in the United
States the members of labor unions have the greater liability.
For a tort committed in behalf of a corporation, the stock-
holders can be held only to the extent of their stock subscrip-
tion, or double the amount, under certain laws regulating
banks. The members of labor unions are responsible without
limit for tortious acts done in their behalf.
(7) English Law of Labor Disputes
Very nearly the same situation which has been created in
the United States by the Danbury hatters' case existed in
England subsequent to the Taff Vale case in iqoi. 1 In that
case a union of railway workers was assessed damages in ex-
cess of $200,000 on account of injury to the company through
acts of violence during a strike. The upshot of this case was
the enactment of the British trade disputes act of 1906.]
This act places labor unions upon a position of equality with
employers' associations, and distinguishes both from com-
binations to control prices. It provides that acts done by
a combination, either of employers or employees, "in con-
templation or furtherance of a trade dispute," shall be lawful
unless they would be unlawful if done by one person. It
provides further that such acts shall not be deemed unlawful
because they interfere with another's free access to the labor
and commodity markets, or because they amount to med-
dling by third parties with contractual rights. Thus, the law
of conspiracy, in all its forms of statement, is declared not to
be applicable to labor disputes. Moreover, in lieu of vague
prohibitions of "violence," "intimidation," and "coercion,"
England has definite statutory declarations as to the con-
duct which is unlawful. The dividing line between lawful
persuasion and unlawful coercion is fairly definite, so that
70 L. J. K. B., 905 (1901).
COLLECTIVE BARGAINING 123
all who read may know. Picketing for the purpose of peace-
fully obtaining or communicating information, or of peace-
fully persuading another to work or abstain from working, is
lawful. On the other hand, it is unlawful to commit acts of
violence or sabotage, or persistently to follow another. Nor
may any one quit work in violation of a contract when he
has reason to know that the consequence of his leaving will
be to endanger human life, or to expose valuable property
to injury, or to deprive a city of gas or water.
In English law there are no doubts as to the legality of
labor unions or of employers' associations. Both the lockout
and the strike are legal, as are the boycott and the blacklist.
Parallel to the right of employers to get new workmen is the
right of the strikers to picket peacefully and to induce them
to abstain from working. England's policy is to allow both
sides a free hand for a fair fight. It ignores the motives
which underlie labor disputes. It does not interfere until the
line of intimidation and violence has been crossed. And this
is a line definitely established by statute, and not left wholly
to the courts. Thus the English law has the merits of cer-
tainty and practicality.
The most radical departure in the British trade disputes
act must still be noted. It is the exemption of trade unions
and employers' associations and their members from all
liability in tort for wrongful acts alleged to have been com-
mitted in their behalf. This was Parliament's answer to the
Taff Vale case. It made it impossible to maintain any dam-
age suit against a trade union or an employers' association.
This is a greater privilege than the limited liability of busi-
ness corporations. The liability is not merely limited, it is
removed in toto. Even though a union may be responsible
for acts of violence, it cannot be sued for the damage it
caused. Our courts hold the members of labor unions to
the unlimited liability of partnerships; in England they are
not liable at all.
The position given in England to trade unions and em-
ployers' associations violates that concept, fundamental in
law, that he who is responsible for a wrong must answer
therefor. But an overwhelming majority of Parliament be-
lieved it sound policy to modify this principle to this extent.
i2 4 PRINCIPLES OF LABOR LEGISLATION
Prior to the Taff Vale case damage suits were never brought
in England against trade unions. Whatever may have been
the law, they enjoyed exemption, to all practical purposes,
from actions in tort. In the United States, also, labor unions
until recently occupied much the same position. And this
practical exemption of unions from responsibility in damages
lias led to no dire consequences. Exemption of trade unions
and employers' associations from actions in tort does not
mean that wrongs they commit are allowed to go un-
punished. The union members who are guilty of acts of
violence can be held therefor, both criminally and in tort;
but the members who have not been direct participants
in the wrongdoing cannot be held civilly liable as principals.
As a curb upon union violence, it is doubtless much more
effective vigorously to prosecute those who commit the
violence than to take away the property of entirely inno-
cent union members.
The exceptional position given in English law to trade
unions and employers' associations rests upon the proposition
that collective bargaining is socially desirable. Trade unions
are such loose organizations that a rigid application of the
principles of agency law is unjust. Such a doctrine operates
to destroy the unions. This is even more true in the United
States than in England, since many of the acts of unions
that are lawful there are unlawful here.
The law conceives of no responsibility other than financial
responsibility, and of no check other than that furnished by
the law. But a more satisfactory check upon -abuse of power
by unions is the like power of employers. The protection of
the public lies in the equal strength of both parties to make
the wage bargain. To this end restrictions upon collective
action upon either side should be removed. Thus can col-
lective bargaining in the voluntary sense be maintained and
extended.
2. Mediation by Government
The development of large scale production and the growing
complexity and interdependence of the social order have vast-
ly increased the number and disastrousness of strikes and
COLLECTIVE BARGAINING 125
lockouts. 1 For settling differences and avoiding these far-
reaching conflicts there have been devised four main meth-
ods: mediation or conciliation, voluntary arbitration, com-
pulsory investigation, and compulsory arbitration.
(1) Definition of Terms
By mediation or conciliation is usually meant the bring-
ing together of employers and employees for a peaceable
settlement of their differences by discussion and negotia-
tion. The mediator may be either a private or an official in-
dividual or board, and may make inquiries without com-
pulsory powers, trying to induce the two parties by mutual
concessions to effect a settlement. The successful mediator
never takes sides and never commits himself as to the merits
of a dispute. He acts purely as a go-between, seeking to
ascertain, in confidence, the most that one party will give
and the least that the other will take without entering on
either a lockout or a strike. If he succeeds in this, he is really
discovering the bargaining power of both sides and bringing
them to the point where they would be if they made an agree-
ment without him. Where the difficulty is due to the parties'
not having thoroughly discussed the situation together, the
mediator is often able to bring them into joint conference,
and, in practice, most of the settlements have been arranged
through compromise. In other cases the parties are unwilling
to admit to each other the utmost concession they will make,
1 In the German Empire there were 10,484 strikes in the years 1899 to
1905, affecting 938,543 men, and 583 lockouts, affecting 207,800 men.
In Austria there were 3,073 strikes affecting 572,746 men from 1894 to
1904, and 69 lockouts involving 43,395 men. In France, from 1890 to
1904, there were 7,741 strikes involving 1,865,620 men. and from 1900
to 1904, 7 lockouts involving 1,031 men. In Belgium there were 961
strikes affecting 274,654 men from 1896 to 1904. Italy had 3,852 strikes
affecting 855,066 men from 1895 to 1903. In Great Britain and Ireland
there were 6,030 strikes and lockouts affecting 1,783,889 men from 1895
to 1905 (Maximilian Meyer, Statistik der Streiks und Aussperrungen,
1907, pp. 43, 45. 7i. 78. 107, 116, 133, 154. 158, 184)- From 1881 to
1905 there were in the United States 36,757 strikes involving approxi-
mately 8,703,824 employees, and 1,546 lockouts affecting 825,610 em-
ployees (Commissioner of Labor, Twenty-first Annual Report, 1906, pp.
476, 477. 736, 737)-
ia6 PRINCIPLES OP LABOR LEGISLATION
fearing to weaken their position. In such cases a mediator
whom both sides can trust can render invaluable service as
an intermediary. Occasionally parties refuse to treat with
each other, but will consent to make each a separate settle-
ment with the mediator. Finally, mediators, through their
familiarity with methods for dealing with analogous difficul-
ties in different trades, arc sometimes able to suggest a so-
lution. In all cases the mediator is merely a confidential
adviser. Even when he is a state authority he does not exer-
cise any of the compulsory powers of the state, and if he even
endeavors, by public investigations and recommendations,
to bring public opinion to bear upon the disputants, he dis-
qualifies himself for further mediation.
Voluntary arbitration occurs when the two parties, unable
to settle the controversy by themselves or with the assistance
of a mediator, agree to submit the points at issue to an um-
pire or arbitrator, by whose decision they promise to abide.
The complete procedure of arbitration consists of a number of
steps: (i) The submission of the dispute to the decision of a
third party; (2) submission to an investigation; (3) re-
fraining from strike or lockout pending investigation; (4)
drawing up an award; (5) enforcement of the award and re-
fraining from strike or lockout during its life. Arbitration
remains strictly voluntary even if at every step except the
first the state uses its compulsory power. The essential thing
is that both parties consent in advance to calling in the powers
of government. Hence it is not inconsistent with the idea
of voluntary arbitration for the state to use its power of com-
pelling testimony, or even of enforcing an award, provided
that both sides have previously agreed that this be done.
Under the system of compulsory investigation a board
created by the state summons witnesses and takes testi-
mony on the initiative of one party to the dispute without
the consent of the other, or upon its own initiative without
the consent of either. The board is one of investigation and
recommendation, without legal power to enforce its awards.
Compulsory investigation is sometimes accompanied by pro-
hibition of strikes or lockouts pending the completion of the
investigation and the publication of the recommendations.
This compulsory postponement is the characteristic feature
COLLECTIVE BARGAINING 127
of the Canadian industrial disputes investigation act of 1907.
copied by Colorado in 1915, designed to prevent sudden
strikes or lockouts. 1 But it is not essential to compulsory
investigation. The alternative is compulsory investigation
without the prohibition of strikes and lockouts, and this is
provided for in the laws of several American states. 2 These
laws are generally thought to establish voluntary systems of
mediation, but they go beyond that point when they take
testimony without the consent of either side.
Compulsory arbitration consists in the government's directly
or indirectly compelling employers and employees to submit
their disputes to an outside agency for decision. In a com-
plete system of compulsory arbitration, government coercion is
exercised at all five of the steps previously mentioned. Differ-
ences must be submitted to arbitration; witnesses must testify
and produce papers; the parties must refrain from strike or lock-
out during the investigation; the board must reach a decision
and announce an award; the parties must observe the award
and refrain from strike or lockout during its life. The penal-
tics for violation are fine and imprisonment, not, however,
imposed on a workman for ordinarily quitting work or on an
employer for the ordinary discharge of a workman, but for
quitting or discharging collectively or with intent to obstruct
any of the steps essential to the arbitration.
(2) Foreign Countries
Voluntary arbitration attained its most characteristic de-
velopment in England. Sir Rupert Kettle, one of the founders
of the English system, wrote : " It is agreed that according to
the spirit of our laws and the freedom of our people, any
procedure, to be popular, must be accepted voluntarily by
both contending parties," 3 and the whole history of con-
1 See "Coercion by Government," p. 160.
2 See " United States," p. 132.
3 Jos. D. Weeks, "Report on the Practical Operation of Arbitration
and Conciliation in the Settlement of Differences between Employers
and Employees in England," Pennsylvania Dor. 1878 1879, Legislative
Documents, Vol. 11, No. 6.
128 PRINCIPLES OF LABOR LEGISLATION
eiliation and arbitration in England verifies his assertion. In
the early years of the nineteenth century the effects of the
industrial revolution, the repeal of the conspiracy laws in
1824 permitting the organization of many new unions, and
the panic of 1828 with the ensuing years of depression, united
to bring about a series of violent strikes and lockouts. These
early collective disputes were envenomed by mistaken legis-
lation to control the workmen, and the memory of the period
embittered the relations of masters and workmen for years.
Gradually, however, both sides began to see the futility of
these destructive methods, and the idea of avoidance or
peaceful settlement of trade disputes by means of joint boards
of employers and employees took root. One of the very
earliest of these boards was established for the Macclesfield
silk trade in 1849, and was suggested by the French industrial
courts (conseils de prudliommes). 1 It proved a failure. In
1856 and i860 committees of the House of Commons found the
men favorable to arbitration, but the employers opposed to
state intervention. The year i860, in which A. J. Mundella
established the first permanent board of conciliation and
arbitration, marks the real beginning of the movement for
conciliation, and between 1867 and 1875 countless boards
were established without legislation.
It was not until 1896 that Parliament enacted legislation
dealing solely with collective disputes. The act of 1824 2
applied only to individual disputes and the act of 1867 3
attempted to introduce the French industrial courts. The
act of 1872 4 provided for conciliation boards, but was a dead
letter. In 1893 occurred the disastrous coal mine strike in
which finally the government intervened and arranged a
conciliation board similar to those which had been so widely
organized without government interference. Following this
came the conciliation act of 1896. It repealed the acts of
1824, 1867, and 1872, and is the present law. It entrusts to
the board of trade 5 certain powers of mediation. The board
may (1) register any private conciliation or arbitration board
on application. This confers no additional powers on these
x See "Industrial Courts," p. 86. 3 30-31 Vict., C. 105.
2 5. Geo. 4, C. 96. 4 35-36 Vict., C. 46.
5 Similar to our Departments of the Interior, Commerce, and Labor.
COLLECTIVE BARGAINING 129
boards. (2) If the means of conciliation in a district are in-
adequate the board of trade may appoint mediators to con-
fer with the parties as to the formation of conciliation boards.
(3) In case of an industrial dispute the board of trade may (a)
make an inquiry, (b) bring the parties together, (c) on the
application of one party appoint one or more conciliators,
(d) on the application of both parties appoint an arbitrator.
All expenses are paid by the government.
Since the passage of the act two additions have been made
to the conciliation machinery of the board of trade, neither
of which necessitated further legislation. In 1908, the presi-
dent of the board sent a memorandum to the chambers of
commerce and employers' and workmen's associations, stat-
ing that the scale of operations of the board under the con-
ciliation act required more formal and permanent machinery
and announcing the creation of a standing court of arbitra-
tion. Three panels were to be appointed by the board, the
first comprising "persons of eminence and impartiality" from
whom the chairman should be chosen, the second employers,
and the third workmen. In case of a request for the services
of the court, it should be nominated by the board of trade
from these panels, either selected by them or jointly selected
by the parties, and should consist of either one or two repre-
sentatives of each side, and a chairman, who should have a
vote. In addition, technical assessors or experts might be
appointed by the board to assist the court. The members of
the court would thus be unconnected with the particular dis-
pute but representative of the respective classes. In 1909
the Forty-second Trades Union Congress adopted a resolution
that the congress should elect the members of the workmen's
panel, to guard against political influence, but the board of
trade denied the request on the ground that "public con-
fidence in the impartiality of the tribunal" was better served
by the existing arrangement.
The court of arbitration proving a failure, an industrial
council, similar to that requested by the Trades Union
Congress in 1909, was created in 191 1. It consists of
"representatives of the two great sides of the industry of
the country." The chairman of the industrial council is
called "chief industrial commissioner." The reasons for
9
i 3 o PRINCIPLES OF LABOR LEGISLATION
the creation of the council were the desirability of a na-
tional representative body, and the fact that the president
of the board of trade is necessarily a politician. The council
deals with cases referred to it for its opinion upon the facts
only; with cases referred to it for inquiry and recommenda-
tions, to be made public, or accepted, if so agreed upon ; with
cases referred by the board of trade or the government; and
with general matters referred by the board for a representa-
tive opinion.
Registration of conciliation boards has been far from com-
plete, but most unregistered boards furnish the board of trade
with annual returns. The first report of the board of trade
recorded one attempt to establish a board where none existed,
but the later reports contain no such information. Evidently
that feature of the act has become a dead letter. In the
settlement of disputes the board of trade has been more suc-
cessful. From 1896 to 1913, 696 cases were dealt with, of
which 345 involved a stoppage of work and 351 involved no
stoppage. About 65 per cent, of the total cases occurred in
the last six years, the highest number recorded being for
1913. 1 Since 1907 conciliation and arbitration of railway dis-
putes have been under an agreement secured through the
board of trade. This agreement broke down in 191 1 with
a strike on every railway except one. It was then revised,
so that a central chairman or arbitrator might be chosen
from a panel prepared by the board of trade.
Present legislation concerning arbitration and conciliation
in Great Britain is thus entirely permissive and voluntary.
Employers as a class favor negotiation through the voluntary
conciliation boards, but many of them condemn the inter-
ference of the state, partly on the ground that it assumes
no responsibility for enforcing its award, and partly on the
ground that the arbitrator is likely to have no practical
knowledge of the trade. They would favor compulsory arbi-
tration, but, regarding this as premature at best, they are
inclined to oppose state intervention altogether.
English trade unions have from the first favored concilia-
tion and voluntary arbitration, but they are opposed to com-
1 From the eleventh Report by the Board of Trade of Proceedings under
Conciliation Act of 1896.
COLLECTIVE BARGAINING 131
pulsory arbitration. Several efforts have been made in the
trades union congress to secure indorsement of compulsory-
arbitration, all of which have been defeated by large and
increasing majorities. In 1908 a resolution was introduced
requesting Parliament to amend the conciliation act of 1896
so as to give the board of trade powers of compulsory in-
vestigation on request of either party, no stoppage of work to
take place pending inquiry and report. It was defeated by
a large majority at that time and again in 1909.
Legislation providing for mediation or conciliation and for
voluntary arbitration is found also in France, Germany,
Austria, Denmark, Italy, Sweden, Belgium, Roumania, Servia,
Spain, the Netherlands, Switzerland, and Argentina. 1 The
French law of 1892 applies to all industries, and makes
justices of the peace mediators. In Germany the law of
1890, revised in 1901, provides that the industrial courts 2 shall
act as boards of arbitration.
(3) United States
a. State Legislation. Thirty-one states, Alaska, and the
Philippine Islands have legislation providing for the settle-
ment of industrial disputes, and Wyoming has a constitutional
provision to the same effect. 3 Many of these states have
permanent boards called boards of conciliation and arbitra-
tion or some similar title, with from two to six members,
although three is the usual number. It is provided in every
state except Alabama that one member shall be a repre-
sentative of the employees, while all but Alabama and Con-
necticut provide for representation of employers. The Okla-
homa board represents farmers in addition. Many states
1 See United States Bureau of Labor, Bulletin No. 60, September, 1905,
"Government Industrial Arbitration," L. W. Hatch; Bulletin of the
International Labor Office, 1 906-1913; United States Bureau of Labor,
Bulletin No. &5, January, 1912, "Industrial Courts," H. L. Sumner (for
Germany).
2 See "Industrial Courts," pp. 86-88.
3 See United States Bureau of Labor Statistics, Bulletins No. 148,
1914, "Labor Laws of the United States," and No. 166, 1915, "Labor
Legislation of 19 14,"
i 3 2 PRINCIPLES OF LABOR LEGISLATION
forbid that more than two members of the board be chosen
from the same political party. In other states the labor com-
missioner acts as mediator, as in Idaho, Indiana, and Mary-
land. In states having industrial commissions, a chief
mediator is appointed along with temporary boards for
arbitration.
In a score or so of states compulsory investigation is pro-
vided for. 1 In the Philippine Islands general powers are given
to the bureau of labor to investigate "strikes, suspensions of
work, and other labor difficulties." The state board of ar-
bitration must proceed to make an investigation (i) on failure
to adjust the dispute by mediation or arbitration, in Idaho,
Indiana, Maryland; (2) if, in the opinion of the governor,
the dispute is likely to affect the public welfare, in Maine ;
(3) when notice of the dispute is given to the board by a
mayor or district judge, in Louisiana; or (4) simply when
the existence of the dispute comes to the knowledge of the
board, as in Massachusetts and Vermont. In other states
such investigation is permissive. The board of arbitration
may investigate (1) when it is deemed necessary by the gov-
ernor, in Alabama and Nebraska, or the commissioner of labor
in New York (the industrial commission since May, 1915).
In Ohio the industrial commission can make an investigation,
if it deems necessary, where a strike exists or is threatened,
but if no settlement is obtained on account of the opposition
of one of the parties investigation is to be made only if re-
quested by the other party. Compulsory investigation may
be employed (2) when both parties refuse arbitration and the
public would suffer inconvenience, in Illinois and Oklahoma,
or simply where the parties do not agree to arbitration, in
New Hampshire; (3) or generally, whenever a strike occurs,
in Connecticut, Minnesota, Missouri, Montana, and Utah.
Provision for enforcement of an arbitration award when
arbitration has been agreed to by representatives of both
sides is made in the laws of eight states. In Illinois, if the
court has ordered compliance with an award, failure to obey
is punishable as contempt, but not by imprisonment. In
1 Alabama, Connecticut, Idaho, Illinois, Indiana, Louisiana, Maine,
Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska,
New Hampshire, New York, Ohio, Oklahoma, Utah, Vermont.
COLLECTIVE BARGAINING 133
Idaho and Indiana the award is filed with the district court
clerk, and the judge can order obedience, violation being pun-
ishable as contempt, but imprisonment may be inflicted only
for wilful disobedience. In Missouri violation of a binding
award is punishable by a fine or jail sentence, and in Ohio
a binding award may be enforced in the county court of
common pleas as if it were a statutory award. In Nevada,
Texas, and Alaska the award is filed with the district court
clerk, and may be specifically enforced in equity. In Nevada
appeal is made to the supreme court, in Texas to the court of
civil appeals, and in Alaska to the United States Circuit Court
of Appeals. Colorado is the only state (191 5) that has copied
the Canadian act forbidding strikes or lockouts pending in-
vestigation and recommendation.
In fourteen states and Alaska the voluntary agreement to
arbitrate must contain a promise to abstain from strike or
lockout pending arbitration proceedings. 1 In Massachusetts
it is the duty of the parties to give notice of impending stop-
page of work. In Nevada and Alaska strikes or lockouts dur-
ing arbitration, and in Alaska for three months after, with-
out thirty days' notice, are unlawful and ground for damages.
b. Federal Legislation. Federal legislation on mediation
and arbitration is comprised in four acts concerning inter-
state commerce carriers, the act of 1888, the act of 1898 (the
Erdman act), the act of 19 13 (the Newlands act), and Sec-
tion 8 of the act creating the Department of Labor, also
enacted in 19 13. The act of 1888 provided, on the initiative
of the President of the United States, for voluntary arbitra-
tion, compulsory investigation, and publication of the de-
cision. It also provided that the President might appoint
two commissioners, who, with the United States Commissioner
of Labor, should investigate controversies and make to the
President and to Congress a report, which should be pub-
lished. The investigation might be made on application of
one of the parties, of the governor of the state concerned, or
on the President's own motion. The act of 1888 was on the
statute books ten years and in that time no attempt is known
1 Alabama, California, Connecticut, Iowa, Louisiana, Maine, Massa-
chusetts, Montana, Nebraska, New Hampshire, Ohio, Texas, Utah, Ver-
mont, Alaska.
i;, PRINCIPLES OF LABOR LEGISLATION
to have been made to apply the arbitration provision. Only
once was an investigating commission appointed, that for
the Pullman strike at Chicago in 1894, and on that occasion
the commission took no action toward settling the dispute.
In 1898 the Erdman act 1 was passed, repealing the earlier
law. It applied to common carriers and their officers and
employees except masters of vessels and seamen, engaged in
interstate commerce, by railroad or by railroad and water,
the term "employees" including only those actually engaged
in train operation. The act was therefore restricted to en-
gineers, firemen, conductors, trainmen, switchmen, and tele-
graphers. In case of a dispute, the chairman of the Inter-
state Commerce Commission and the Commissioner of Labor
must on application of either party endeavor by mediation
to adjust the difference. Mediation was conditioned on re-
quest by one party, and on acceptance of the mediator's offer
by the other party. If mediation proved unsuccessful, the
mediators were to urge arbitration, and if the parties agreed
a board of arbitration was formed, one member being named
by each party and the third by these two. Failing their agree-
ment on a third, he w r as to be named by the commissioners.
The submission was to contain the following provisions:
Pending arbitration the status existing immediately prior to
the dispute was not to be changed; the award was to be
filed with the clerk of the United States circuit court for the
district and should be final and conclusive except for error of
law; the parties must be bound by the award and it might
be specifically enforced in equity, as far as the powers of a
court of equity permit; neither side was to cease work on
account of dissatisfaction with the award, for three months,
without thirty days' notice; the award should continue for
one year and no new arbitration should be had on the same
subject in that time. The award being filed, judgment was
to be entered accordingly at the end of ten days, unless ex-
ceptions were filed for matter of law. Appeal might be taken
from the decision of the circuit court to the circuit court of
appeals, whose determination should be final. The arbi-
trators were given powers of compulsory investigation, and
1 United States, Laws 1898, C. 370.
COLLECTIVE BARGAINING 135
strikes or discharge of employees except for good cause were
made unlawful pending arbitration and for three months
after an award. Violation subjected the offender to liability
for damages.
During the first eight years after the enactment of the
Erdman law only one attempt was made to invoke it, 1 and
that proved futile; but since 1906 there has been no serious
strike, actual or threatened, in which one of the parties has
not sought settlement under the act. Only one failure to
adjust, when mediation was accepted before a strike began,
is recorded. From 1898 to 191 2, forty-eight applications for
mediation and arbitration were received, the total mileage
involved having been over 500,000 and the number of em-
ployees over 160,000. Nineteen applications were made by
employers, thirteen by employees, and sixteen by both to-
gether. Mediation was involved in forty-four cases, of which
eight were carried to arbitration. Four cases were directly
submitted to arbitration. Almost invariably, when one side
applied for mediation, the offer was at once accepted by the
other, the exceptions having been comparatively unimpor-
tant. At the time the Erdman act was passed the arbitration
features were regarded as paramount, but in practice the
mediation features proved more valuable. Mediation pro-
ceedings were made as informal as possible. Conferences
were held with the two parties separately, a joint meeting being
held only when complete settlement or agreement to arbitrate
was reached, and a fixed rule was observed that neither side
should know what concession the other was willing to make,
until the final agreement. The terms of settlement were not
published without authorization of the parties. In the twelve
arbitration cases, the first two arbitrators were able to agree
on the third in only three instances. In no case was there
repudiation by cither side of an arbitration award, and there
is only one instance of an appeal to £he court, which proved
most unsatisfactory on account of the prolonged litigation
necessary. 2
1 1899.
2 The act of March 4, 1911, authorized the President to designate any
member of the Interstate Commerce Commission or of the Court of
Commerce to take the place of the chairman.
136 PRINCIPLES OF LABOR LEGISLATION
In July, 1 913, the Erdman act was superseded by the New-
lands act. 1 It provides that a Commissioner of Mediation and
Conciliation be appointed by the President with the advice
and consent of the Senate, his term to be seven years. The
President is also to designate not more than two other gov-
ernment officials, appointed with the consent of the Senate,
to constitute, with the commissioner, the United States
Board of Mediation and Conciliation. In the same manner
the President must appoint an assistant commissioner of
mediation and conciliation, to take the place of the com-
missioner if he be absent or the office vacant, and otherwise
to assist him. In case of a controversy to which the law
applies either party may apply to the Board of Mediation
and Conciliation, which must seek to effect an amicable ad-
justment and if unsuccessful must urge arbitration. If in-
terruption of traffic is imminent and would prove detrimental
to the public, the board may proffer its services as mediator.
In case of a dispute over any agreement reached through the
mediation of the board, either party may apply to it for an
opinion. On the failure of mediation, a board of arbitration
may be formed, composed of six or three arbitrators. Each
side chooses two members, or one member, and these choose
together the remaining two or one. In case of failure to agree,
the Board of Mediation and Conciliation names the remainder.
Unorganized employees may choose their representative
through a committee. The agreement to arbitrate must
comply with the following requirements: (1) It must be in
writing, (2) it must state arbitration is had under the act,
(3) it must specify whether there are to be three or six arbi-
trators, (4) it must be signed by the accredited representatives
of both parties, (5) it must specify the questions to be decided,
(6) it must state that a majority award is valid, (7) it must
stipulate the maximum interval from the completion of the
board to the beginning of hearings, (8) it must stipulate the
maximum interval from the beginning of the hearings to the
handing down of the award, this time to be thirty days unless
otherwise agreed, (9) it must state the date on which the award
becomes effective and the life thereof, (10) it must promise
'United States, Laws 1913, C. 6.
COLLECTIVE BARGAINING 137
faithful execution of the award, (11) it must declare that the
award, testimony, etc., are to be filed with the clerk of the
appropriate United States district court, and (12) it may pro-
vide that differences as to interpretation be referred back to
the board, their ruling to have the force of the original award.
Upon consent of both parties the board of arbitration is given
powers of compulsory investigation. The arbitration agree-
ment must be acknowledged before a notary public, the clerk
of a United States district or circuit court, or one of the Board
of Mediation and Conciliation. The award is to become
operative in ten days after being filed, unless exception be
taken for matter of law apparent upon the record. Decision
is rendered by the district court, or, on appeal, by the circuit
court of appeals. Parties may jointly ask to have a board
of arbitration reconvened. Nothing in the act may be con-
strued so as to require service of any employee, and no in-
junction or other legal process may issue to compel perform-
ance by any employee of a contract. 1
The act of March 4, 19 13, creating a Department of Labor,
provides that the Secretary of Labor shall have power to act
as mediator and to appoint commissioners of conciliation in
labor disputes, whenever in his judgment the interests of
industrial peace may require it to be done. 2 No appropriation
was made for the expenses of commissioners till October, 19 13,
and none for their compensation till April, 191 4. Until the
latter date, therefore, it was necessary to detail government
employees from their regular work. An executive clerk was
appointed in July, 19 14, and the work systematized. Not-
withstanding obstacles, the mediation work of the Depart-
ment of Labor is reported to have been successful in twenty-
three disputes out of a total of thirty-two. 3 In three im-
portant disputes the Secretary of Labor's offer of mediation
was rejected. In the Pere Marquette Railroad shop strike,
the Calumet copper miners' strike, and the Colorado coal
strike, mediation was desired by the employees, but declined
1 F. H. Dixon, "Public Regulation of Railway Wages," American
Economic Review, Vol. V, 1915, pp. 245-269; United States Bureau of
Labor, Bulletin No. g8, January, 191 2, "Mediation and Arbitration of
Railway Labor Disputes in the United States," C. P. Neill.
2 United States, Laws 1912-1913, C. 141, Sec. 8.
3 Secretary of Labor. Second Annual Report, 1914, p. 48.
i.vs PRINCIPLES OF LABOR LEGISLATION
by the employers. In case mediation fails, arbitration may
be proposed by the mediators, but they do not themselves act
as arbitrators.
A semiofficial instance of arbitration occurred in the case
of the great anthracite coal strike in Pennsylvania in 1902.
In this case the government appointed an arbitration com-
mission on the request of the parties without any special
authority in law. 1 The miners wanted an agreement, the
operators felt that it would not be binding and that the union
obstructed discipline. In October, five months after the be-
ginning of the strike, President Roosevelt appointed the An-
thracite Coal Strike Commission. The men returned to work
and the commission began its inquiry. It took the testi-
mony of 558 witnesses. The losses of the strike were esti-
mated at $25,000,000 in wages, $1,800,000 in relief funds,
846,100,000 to the operators, and $28,000,000 in freight re-
ceipts to transportation companies. The commission found
the underlying cause of the strike to be the issue of recognition
of the union. The award stated that the commission would
recommend recognition of the union, were the anthracite
unions separated from the bituminous unions, but that diffi-
culties should be referred to a permanent joint committee of
miners' and operators' representatives with an umpire ap-
pointed by the federal court, and that the life of the award
should be till March, 1906. The commission further recom-
mended a system of compulsory investigation. The agree-
ment has been renewed, with modifications, and was still in
force in 191 5.
Much the best results of state or government intervention
have been achieved through mediation. Public investigation
up to the last few years has seldom been used. On the whole
a good deal has been accomplished in the promotion of in-
dustrial peace, the chief obstacle in the way of success having
been a lack of confidence on the part of the disputants in the
impartiality or ability of the state or government officials.
The powers of compulsory investigation and publication of
the recommendations without consent of the parties, adopted
1 United States Bureau of Labor, Bulletin No. 43, November, 1902,
" Report to the President by the Commissioner of Labor " ; Bulletin No. 46,
May, 1903, "Report of the Anthracite Coal Strike Commission,"
COLLECTIVE BARGAINING 139
in nearly half the American laws, have seldom been re-
sorted to.
There still remains a large field for federal legislation which
the Newlands act does not cover and where provision for
mediation and arbitration seems desirable, namely, disputes
involving railroad employees not engaged in actual train
operation, disputes involving other agencies of interstate
commerce, and disputes in which the President is requested
to intervene to preserve order. State agencies cannot cope
with these kinds of disputes. The Secretary of Labor is em-
powered to intervene in such cases, but his intervention brings
in the political and trade union partisanship which is avoided
under the Newlands act. Cooperation between federal and
state agencies for the settlement of industrial disputes is also
needed.
3. Coercion by Government
(j) Restrictions on Strikes and Lockouts
The preceding section has covered the mediatory measures
which governments have adopted to diminish strikes and
lockouts. Their essence, whether it be mediation, conciliation,
or arbitration, is the voluntary acquiescence and participation
of both the employer and the employees acting collectively.
As long as arbitration is voluntary the bargaining power of
neither party is affected.
From the point of view of legislation the strike and lockout
have two aspects. On one hand they create injury to the
public. On the other hand, they are a part of the bargaining
process by which wages are determined. To the public the
effects of the strike and lockout are similar. Both cause sud-
den stoppage of trade, failure to pay debts, expense of public
relief, and sometimes disorder and famine prices. Hence
legislation, springing simply from the needs of the public,
treats the strike or the lockout as a public nuisance.
But as methods of bargaining these two are not equivalent.
To the employer the right to lock out is comparatively unim-
portant. He may use it to discipline an unruly set of em-
ployees, to discourage unionization in his factory, or to "get
the start" of his men. But in the usual bargaining he has no
i 4 o PRINCIPLES OF LABOR LEGISLATION
need oi it. He can keep his factory gates open even though,
a i the same time, he may be reducing wages or refusing de-
mands for higher wages. He is not forced to lock out and he
can force his employees to strike or submit. Legislation which
prohibits or restricts the lockout does not greatly weaken the
bargaining power of the employer.
But to the employees there can be no collective bargaining
without the right to strike. For a strike is nothing but the
collective refusal of the terms of the employer. Legislation
which restricts or prohibits strikes, restricts or prohibits col-
lective bargaining itself. It leaves the employee a helpless
individual in the face of an aggregation of capital, unless the
same law which restricts or prohibits the collective bargaining
provides an adequate substitute in its place.
Consequently, as affecting the collective bargain, there are
two essentials to an adequate measure of compulsory arbitra-
tion. First, the power to restrict strikes and lockouts. This
is directed primarily against the employees. Second, the
power to enforce awards as to wages and conditions of labor
while the plant is running. This is directed primarily against
the employer. There necessarily goes with these two powers
the power of compulsory investigation where one of the parties
is unwilling to submit to arbitration, but such power is but
a means to an end of obtaining a just award and is as essential
to a system of public information, like the Canadian industrial
disputes investigation act of 1907, as to a system of coercion,
like the Australian arbitration acts. It is the joint presence
of these two essentials which makes the difference between
compulsory arbitration and minimum wage boards on the
one hand, and compulsory arbitration and the Canadian dis-
putes act on the other hand. The wage board enforces a
minimum award, but does not restrict the right to strike. 1
The Canadian disputes act restricts the right to strike without
notice, but grants no power to enforce an award.
The degree of restriction upon the strike, as expressed
in different laws, varies widely. Carried out in administra-
tion it varies still more widely. In the Canadian disputes act
and in the Colorado industrial commission act of 1915, only
1 Except under special circumstances.
COLLECTIVE BARGAINING 141
strikes without notice and hearing are unlawful. The same is
true in the case of "unregistered" unions in New Zealand.
On the other hand, all strikes by "registered" unions in that
colony and strikes by anybody in most of the Australian
states are unlawful. But because of administrative weak-
ness, as will be shown, the actual coercion is very much less
than is indicated on the face of the laws.
Of compulsory awards we have nothing in North America,
except that in acts of eight states ' and in the Canadian indus-
trial disputes investigation act, there are provisions for en-
forcing awards which have first been voluntarily accepted
by both parties. New Zealand goes a step further toward
coercion, for there it is optional for either employers or em-
ployees to register, but one of the parties registered can ap-
peal for an award which will be enforced against both the
parties. Finally, in Australia, there is left no option to either
employers or unions.
(2) Development of Coercive Intervention
a. England. This development toward restriction of the
right to strike and the substitution of wage awards is some-
times treated as a step backward. This is entirely too simple
a view. It is true that the freedom of the bargain has de-
veloped from a former time of government coercion and now
shows tendencies to go back under government coercion again.
But the modern coercion is different from the old coercion,
since the modern government derives its authority from a
broader range of classes than those which controlled the older
governments. In the England of the middle ages, at first,
the lord of the manor and the town officials determined the
wages. The national catastrophe of the Black Death in the
fourteenth century caused Parliament to fix wages by law in
certain occupations. This proved unwieldy and Parliament
gave the right to declare wages to the local justices of the
peace. This system was codified in the Elizabethan statute
of apprentices, 1562. England therefore was under a local
wage board system, but on this local wage board was no
1 See "Mediation by Government," p. 132.
143 PRINCIPLES OF LABOR LEGISLATION
representative of labor. The wage determined was not the
minimum wage, as at present, above which the employee can
bargain and below which the employer cannot bargain. It
was a fixed wage. It was as unlawful for the employee to
demand more as for the employer to offer less. It thus gave
no freedom to either party for either individual or collective
bargaining.
In the seventeenth and eighteenth centuries England ceased
to be an aggregation of local markets and became a national
market. A local system of wage determination became ab-
surd and fell into disuse. In spite of the protests of the in-
cipient trade unions of the time, the employer was freed from
the compulsory wage, and obtained the right to bargain with
the individual employee. On the other hand, at about the
same time, the right of collective bargaining by employees was
denied both by statutes and by judicial decisions. In 1720
Parliament began a series of acts against combinations of
labor. In 1721 the court brought within the common law
doctrine of conspiracy a combination of laborers to raise their
wages. This policy reached its culmination in the con-
spiracy acts of 1799 and 1800. l But, beginning in 1824, when
a strike to raise wages was partly legalized, the nineteenth
century showed a continuous development in England of the
right of collective bargaining. This formal right has been
backed by unions which are both strong and reliable. The
public has been saved much of the nuisance of the strike and
lockout by a long series of voluntary trade agreements. Yet,
recently in several of the sweated industries and in coal min-
ing 2 the government has formed minimum wage boards which
both protect the workers against the individual bargain of the
employer and give a basis for collective action by the em-
ployees. Thus the twentieth century opens with a policy
exactly opposite to that of the eighteenth century. Collec-
tive bargaining is free, but individual bargaining, when likely
to be oppressive to employees, is restricted.
b. Australasia. In Australasia, 3 Canada and the United
1 See Bryan, Law of Conspiracy, 1909, for a general discussion of the
subject.
2 See "The Minimum Wage," pp. 174. *75- ,.
3 The material used in determining facts and conclusions regarding
COLLECTIVE BARGAINING 143
States there was much the same development as in England
up to about 1890. Since 1890, however, there has been in
Australasia a complete revolution in policy. In 1894 New
Zealand passed its compulsory arbitration act. The next state
to adopt compulsory arbitration was New South Wales in
1 90 1. It was followed by Western Australia in 1902, by the
Commonwealth itself in 1904, and by South Australia and
Queensland in 19 12. Meanwhile Victoria and Tasmania had
adopted compulsory wage boards. In twenty years all of
Australasia has adopted laws which are coercive either of
the individual bargain, the collective bargain, or both. Even
in the United States and Canada, through the enactment of
the Canadian act of 1907 and the Colorado act of 1915, there
has been reintroduced coercion against strikes or lockouts
without notice in industries affected with a public interest.
No single reason explains this new development. It rests
in part on the comparative failure of collective bargaining to
bring about collective agreements, in part on the broader
democratic source from which modern governments derive
their authority and which makes their coercion less oppres-
sive to workmen, in part on the growing importance of indus-
tries affected with a public interest, and latterly, in part, on
the demand of employers for protection against more powerful
unions.
The evolution of coercion in Australasia to an extent far
greater than that of the United States is a normal result of
a development, economic, social, and political, sharply in con-
trast with our own. The public has been itself the largest em-
ployer of labor through its government railroads and other
Australasia is mostly of a controversial nature. The wages boards of
Australia have had a recent thorough and impartial treatment by Dr.
Hammond ("Wages Boards in Australia," Quarterly Journal of Economics,
Vol. XXIX, 1914, pp. 98-148. 326-361, 563-630). For the rest, the
books on the subject are either too old (books age rapidly in regard to
the Australasian labor situation) or too controversial, or if government
publications, too colorless. The parliamentary debates which are given
in full for the Commonwealth, Victoria, and New Zealand have been
mainly relic 1 upon. Three Australian labor papers have been consulted,
but the anti-labor papers have been accessible only in the forms of
clippings or qu 5, of which the most valuable is the report of the
American Trade Commission of the National Association of Manu-
facturers (see Bibliography).
M4 PRINCIPLES OF LABOR LEGISLATION
public utilities. Private employers of labor, particularly indus-
trial employers, have been men of small capital, employing few
hands as compared with those in the United States. Appar-
ently the capitalistic power which the Australasian labor
leaders attack most bitterly is that of the shipper and the
merchant. The position of the employer is somewhat similar
to that in the United States in 1830. But the position of the
employee has been sharply different. In 1830 in the United
States the workingmen were striking for a ten-hour day. In
Australasia, before compulsory arbitration had come into
existence, the eight-hour day had become the general rule.
But in America there is no standard. The hours range from
eight to twelve, the days from five and a half to seven a week,
the pay from $2 to $6 a day in the same locality. The brick-
layer gets from two to even four times as much as the hod-
carrier, measured by the hour, and an even higher ratio in
comparison with ordinary laborers. 1 In Australasia there is
no such difference. The bricklayer gets but 20 per cent, to
50 per cent, more than the building laborer. 2 In the United
States labor is divided both politically and industrially by the
negro and the immigrant. During the last twenty years the
bulk of our immigration is from people receiving relatively low
wages even for Europe. The immigration into Australasia
has been comparatively light. It has almost all come from
the British Isles, from a people receiving the highest wages
in Europe. There have been no difficulties presented by con-
flicting races and different languages. There has been no
large body of disfranchised or unnaturalized laborers. The
election laws have been continuously more favorable to labor
than those of the United States. In New South Wales, for
example, an immigrant from Great Britain can vote in one
year, from any of the Australian states in three months. Pro-
vision is made for absent voting. The entire labor force, not
merely the skilled workmen, as in some of our eastern and
southern states, can be mobilized at the polls.
1 Great Britain, Board of Trade, Report on Cost of Living in A merican
Towns, 191 1, pp. 65, 107.
2 Australia, Commonwealth Bureau of Census and Statistics, Labor
and Industrial Branch, Report No. 2, 1913, "Trade Unionism, Unemploy-
ment, Wages, Prices, and Cost of Living in Australia," p. 36.
COLLECTIVE BARGAINING 145
The power of labor at the polls was first shown during
the very years when labor proved impotent in collective bar-
gaining. From 1890 to 1893 labor was defeated in four dis-
astrous strikes. In 1890 a maritime strike paralyzed the
shipping of Australia and New Zealand. To an exporting
people, like the Australasians, a maritime strike ties up busi-
ness as completely as a railroad strike in the United States.
In the midst of the strike the unions asked for arbitration.
The employers refused and the unions were beaten. The next
year there was a sheep-shearers' strike, mainly for the right
of collective bargaining. There was great public disorder.
The unions were defeated. In 1892 the miners at Broken
Hill, New South Wales, before they struck, asked for volun-
tary arbitration. This the employers refused and in the
strike that followed the men were defeated. Another tur-
bulent and disastrous sheep-shearers' strike marked the year
that followed. During those same four years the number of
parliamentary seats held by labor greatly increased.
These were the events preceding 1894, when the first com-
pulsory arbitration act was passed in New Zealand. Strikes
had meant loss to the public, and defeat to the employees.
Voluntary arbitration had been refused by the employers.
With a progressive Liberal Party dominant in New Zealand,
with the Labor Party developing in Australia, the unions
turned to government for coercive assistance in wage deter-
mination.
Unlike Australia, New Zealand has never had a large labor
party, but a month after the defeat of the maritime strike a
progressive Liberal Party came into power to hold office for
the next twenty years. It was under this party that the first
compulsory arbitration act was passed, as well as all the suc-
ceeding acts and amendments up to the amendment of 19 13.
The first act had the support of the representatives of labor,
but was opposed by the employers. New South Wales had
passed a law for voluntary arbitration in 1892 and, in the next
large strike which followed, the employers had refused to
accept arbitration under the act. So at that period there
was little to show that voluntary arbitration laws were of
any use. It seemed that if strikes were to be diminished at
all it must be by compulsion.
10
i 4 6 PRINCIPLES OF LABOR LEGISLATION
The New Zealand act went into effect in 1895. Thence
until k)o6 there was a general period of prosperity, and what
would probably have been a series of victorious strikes on a
rising market became a no less victorious series of awards of
the court of compulsory arbitration. Strikes were few and
insignificant. With 1907 the prolonged period of prosperity
ended. Thereafter the awards gave little or no increases of
wages. There was a series of illegal strikes and a readjust-
ment of the law in 1908. In 19 13 and 19 14 the law was put
to a new trial. There was a spread of socialism and syndical-
ism among the employees. A waterside strike occurred, ac-
companied by many sympathetic strikes. The government's
answer was to limit to narrower grounds the right to strike.
Compulsory arbitration has now had twenty years of trial
under conditions of ease and under conditions of stress. It
started with a law which was just over the borderline of
voluntary arbitration. With successive periods of strain the
act has been strengthened until now it is clearly coercive.
The act as passed in 1894 provided for district boards of
conciliation, 1 and one court of arbitration. The boards of
conciliation were composed of an equal number of representa-
tives of employees and employers. The representatives of
both employers and employees were nominated by the regis-
tered unions of employers and employees within the district.
The court of arbitration consisted of one supreme court judge,
assisted by one member nominated by the registered unions
of employers and one member nominated by the registered
unions of employees. Neither the boards of conciliation nor
the court of arbitration was authorized to receive any de-
mands except from unions registered under the act. A de-
mand received from a registered union, either of employers
or of employees, must first pass before a board of conciliation,
but if the award was unsatisfactory to either party an appeal
could be taken to the court of arbitration, whose award was
binding. During the hearings and until the expiration of the
award it was unlawful to strike or lock out.
The experience of twenty years has not changed materially
the court of arbitration, but the boards of conciliation have
1 Seven were appointed.
COLLECTIVE BARGAINING 147
been transformed. They were always a cause of irritation
and legislative tinkering, as they seem to have been from
the beginning little more than boards of argumentation.
Being appointed by districts rather than by trades, their
members had no expert knowledge of the particular disputes
brought before them. In the present law of compulsory arbi-
tration, enacted in 1908, the machinery of the boards in the
Canadian disputes act was applied. Commissioners of con-
ciliation are appointed who receive appeals and who appoint
advisers nominated by both parties, who must be men with
practical experience in the trade concerned, either as em-
ployers or employees. This system has proved to be more
successful than the earlier system.
As to strikes and lockouts, the first act, on the face of it,
implied an equal restriction on employers and employees.
But, as employers did not appeal to the court, and as the
registration on each side was voluntary and could be with-
drawn on short notice, the act meant for the employees vol-
untary arbitration with an enforceable award. This worked
smoothly up to 1906 while wages were rising and the coercion
of the act was all upon the employer.
But the illegal strikes of 1 907-1 908 caused Parliament to
separate penalties for strikes by a provision for the attach-
ment of wages, to levy comparatively heavy fines on unions
whose members struck, and to penalize all strikes or lockouts,
whether of registered unions or not, which were made with-
out sufficient notice in public utilities and in certain indus-
tries, the steady continuance of which is affected with a public
interest. This was adapted from the Canadian disputes act
of 1907. The waterside strike of 19 13-19 14 caused Parlia-
ment to apply a somewhat similar provision to all strikes or
lockouts in all industries. For unregistered unions the strike
without due notice is not prohibited. For registered unions
all strikes are prohibited.
As far as one can judge l the enforcement of penalties for
strikes and lockouts has been pursued coolly and persistently
under a system of moderate fines. Half the strikes which have
1 Based almost entirely upon government reports and parliamentary
debates.
148 PRINCIPLES OF LABOR LEGISLATION
occurred are perfectly legal strikes — strikes of unregistered
unions, but there have been a number of serious illegal strikes.
The waterside strike of 19 13-19 14 started with unions which
had a perfect right to strike and spread by sympathetic
action to other unions registered under the award, which
therefore had no right to strike. New Zealand has not
achieved industrial peace. One might question whether a
system in which it is illegal for some unions to strike and
legal for others can ever be satisfactory.
The act of 1894 in New Zealand recognized registered
unions only. Neither the individual employer nor employee
could appeal to its protection. This remains true for the
employee under the latest amendment, but the individual
employer now may register.
Though the first act contained no reference to preference
to unionists, this preference was granted in the awards as
early as 1896 and was incorporated in the law of 1900. In the
earlier awards preference to unionists simply meant that if
there were a vacancy a union man must be given preference
over a non-union man of similar ability. In the later awards
preference to unionists has become equivalent to a closed shop,
for an employer is ordered to discharge a non-union man in
favor of an unemployed union man. Union preference is cus-
tomarily granted where the union can show that it had a
strong organization previous to the dispute.
With the right to strike taken away, the problem of pro-
tecting labor leaders against victimization has consumed con-
siderable attention both of the courts and of Parliament,
without results satisfactory to the unions. Provisions in re-
gard to victimization have repeatedly been changed. Some-
times the burden of proof has been put upon the employer,
sometimes upon the employee.
Registered unions, therefore, have gained a preference
which amounts almost to a closed shop and some protection
against victimization, but at the expense of very large con-
trol through court decisions. Initiation fees, membership
fees, fines, procedure of unions, relations to other unions, 1
all have been brought either within the awards or within other
New Zealand, Journal of the Department of Labour, January, 1914, p. 3,
COLLECTIVE BARGAINING 149
court decisions. A recent decision which applies, however,
to all unions whether registered or not, declares that union
funds may not be used for political purposes. 1 Thus the
government makes politically innocuous the labor union which
it encourages.
It might be answered that a registered union is free to
cancel its registration and thus to escape control by the
government, if obnoxious. But both in the strikes of 1908
and in the strike of 19 13- 191 4 the employers coerced the em-
ployees into registering under the act by refusing to recognize
any union which had not registered. This practical coercion,
which seriously restricts the apparent voluntary character
of the law on the side of unions, is at present the chief cause
for complaint by labor leaders.
Where arbitration is voluntary, the awards represent an
adjustment only between the demands of the two parties and
are based on their relative strength. With the element of
coercion the third party, the public, enters to determine that
the awards shall not be inconsistent with its notions of a
proper standard of wages. As shown above, compulsory ar-
bitration in New Zealand has been largely voluntary on the
part of the employees. Decisions, therefore, have taken into
account little more than the respective demands of the two
parties. But in two respects there has been a change of policy.
Union tactics and the early awards limited the proportion of
apprentices. The later awards generally specify no limit, but
very sharply raise the wages of apprentices. The public pur-
pose of open opportunity is thus subserved without being
turned to the private end of the substitution of apprentices
for journeymen. Again, the earlier acts allowed slow workers
to receive less than the minimum wage only with the consent
of the secretary or president of the union. This was changed
in 1908 by allowing a state official to grant permits to slow
workers.
The law was originally passed by the Liberal Party, favored
by the labor unions, but opposed by the employers. In the
crisis of 1908 the Liberal Party revised the law against the
opposition of a portion of the Reform Party (the chief opposi-
1 Parliamentary Debates, 4th Session, 1914, pp. 659-665.
150 PRINCIPLES OF LABOR LEGISLATION
lion party) and of the Labor Party. This revision the em-
ployers favored. In the debates in Parliament the leader of
the opposition (later the premier) declared himself against
compulsory arbitration, but in favor of an act somewhat
similar to the Canadian disputes act. During the strike of
1913-1Q14 the Reform Party, now in power, declared in favor
of compulsory arbitration and added to the law amendments
which wore distasteful to the Labor Party. At the present
time (10 1 5), however they differ in details, all parties in
Parliament are committed to the principle of compulsory
arbitration, the only opposition being from groups not yet
represented in Parliament, like the Socialists and Syndicalists.
Turning from New Zealand to Australia, three chief facts
appear in the history of coercive legislation: (1) The laws were
enacted and administered in the presence of a large labor
party; (2) two systems, compulsory arbitration and wage
boards, have grown up side by side, until, in several of the
states, the two have merged; (3) Australia, as a federal com-
monwealth, has had both federal and state courts of arbitra-
tion. It has been one thing to enact and administer laws of
compulsory arbitration in the presence of an insignificant labor
party, as in New Zealand. It has been very different to do
the same in Australia, where the Labor Party was first a large
third party, later a large second party, and in September,
19 1 5, was in control of the Commonwealth and the majority
of the states.
The period of the strikes of 1890- 1893 was a period of ex-
traordinary growth of a socialistic Labor Party. In 1890
there was but one labor member in all the legislatures of
Australia. In 1893 there were eighty in the lower houses. 1
The members of the upper houses are elected or selected under
restrictive conditions.
This movement was a flash in the pan, but with the creation
of the Commonwealth in 1899 a much more solid labor move-
ment developed. There was a labor ministry for a few months
in 1904, another labor ministry in 19 10, just barely defeated
by the popular vote of 1913- Again, during the European
war, there was another appeal to the polls and, upsetting all
St. Ledger, Australian Socialism, 1909, p. 56.
COLLECTIVE BARGAINING 151
precedents and marking the distinction between the Austra-
lian labor movement and labor movements elsewhere, the
Labor Party was victorious in a campaign based on its record
of adopting a universal military service act. Queensland, New
South Wales, Western Australia, South Australia, and even
conservative Tasmania are also now, in 191 5, under labor
ministries. One large state, Victoria, remains anti- labor.
With labor parties taking the labor vote, with anti-labor parties
having but slight chance of any large labor vote, with or-
ganization of labor on the farms as well as in the workshops,
Australia is divided politically between the employer and the
employee. This means that any law affecting wage bargains
is enacted or administered by a party which unequivocally
represents one or the other side to the bargain. If a labor
party is in control the compulsion of a compulsory arbitration
law is not very real to the employee nor is it very real to the
employer if an anti-labor party controls.
The two Australian states with the largest population,
Victoria and New South Wales, were the first to adopt coer-
cive measures, but one adopted the wage board system, while
the other adopted the compulsory arbitration system. In
1896 Victoria enacted the first of its wage board laws. In
1 90 1 New South Wales enacted its first law of compulsory
arbitration. Here we may contrast the workings of the mini-
mum wage boards and compulsory arbitration as compared
with the theoretical differences between the two systems.
In the early 'nineties there was a strong humanitarian move-
ment in Victoria, increased by the report of the parliamentary
board of 1893 on the existence of sweated labor in Melbourne.
The minimum wage bill, as originally introduced, applied only
to women and was intended solely for the benefit of those who
were suffering under unfair wage conditions. The act as
finally passed in 1896 applied to both sexes, but only to those
industries particularly notorious for low wages. Each wage
board consisted of a chairman and an equal number of repre-
sentatives elected by the votes of all employees and of em-
ployers. The employer had votes in proportion to his aver-
age number of employees. The wage board fixed wages,
hours, and certain other matters, but could not grant union
preference. This method of election of representatives prac-
1 52 PRINCIPLES OF LABOR LEGISLATION
tically created state unions of employees and employers. The
method proved unsuccessful. The elected employees and
employers were too much committed to their electors. In the
present system the employers and employees on the board are
appointed, presumably from the more reputable employers
and less militant employees. Decisions are based on what
the more reputable employer pays and arc designed to pro-
tect him from unfair competition. In fact, it was stated in
one of the laws, since amended, that wage board decisions
should conform to what was "paid by reputable employers to
employees of average capacity." This has gradually brought
employers to favor the law. The law also has usually been
favored by the Labor Party. It does not take away the
right to strike, but provides such a ready substitute that
Victoria, more than any other of the Australian states, can
claim to be a "country" almost "without strikes."
The original wage boards were created in industries noto-
rious for sweated labor and brought rapid improvement in the
condition of workers. But wage boards have since greatly
increased in number and have been extended to industries
where wages are high and labor is organized. To mark the
change of purpose in the creating of new wage boards it is
sufficient to say that two of the new boards of 19 12 were
created against the protest of the labor members of Parlia-
ment, one of them at the petition of the employers, and that
another wage board was given authority only over men
workers because the women petitioned not to be brought
under it. The wage board system of Victoria, therefore, has
been extended beyond its original purpose and has become a
method of protecting reputable employers from unfair com-
petition and insuring industrial peace by providing a ready
means of adjustment of grievances.
Turn now to the turbulent history of New South Wales.
Before compulsory arbitration was adopted, New South Wales
was much more subject than Victoria to serious strikes and
such it has remained. This one state furnishes more than half
of the days lost by strikes in all of Australia. 1 Compulsory
arbitration cannot be said to have increased such disputes,
1 Australia, Commonwealth Bureau of Census, Labour Bulletin No. 4,
February, 1914, p. 262.
COLLECTIVE BARGAINING 153
but simply not to have stopped them. After a futile volun-
tary arbitration law of 1892, New South Wales passed its first
compulsory law in 1901. This act was especially important
because on it was based the present Commonwealth act of
1904. Here was first introduced the unique feature later
copied in the Commonwealth act, that the court itself must
give its consent before any prosecution for a violation of the
nature of a strike or lockout could be commenced. That
consent was not frequently granted. For the rest, the act
provided for a single court with final determinations on all
matters within the scope of the act. Preference could be
granted to unionists.
The act expired in 1908. The single court had not disposed
of the cases brought before it with sufficient rapidity. The
anti-labor ministry in power at that time adopted a compre-
hensive system of wage boards modeled after the Victorian
system, whose determinations were subject to appeal to a
special court of arbitration. All strikes were declared illegal.
A system of fines was adopted to reach the union funds.
Strikes, almost of the character of rebellion, followed, and
the next year the same ministry rushed through a bill ap-
plicable to strikes in certain necessary industries, like coal
mining. These provided a penalty of not exceeding twelve
months' imprisonment for instigating strikes and the same
length of time for mere participation in a strike meeting.
Immediately there followed a strike of all the coal miners in
New South Wales. The situation became intolerable and the
Labor Party came back to power. A new act was passed in
191 2. The severe penalties were withdrawn and special con-
ciliation boards were created for mine workers.
But neither under anti-labor ministries nor under the present
labor ministry is New South Wales industrially quiet. Frantic
assertion of authority has been followed by flabbiness in the
administration of the law. This has resulted in a series of
headless strikes. 1 The officials of the union, who might be
prosecuted, make a show of dissuading the men, and the men
strike with neither political nor economic consequences, as
1 Based on the report of the American Trade Commission of the
National Association of Manufacturers and the Australian Worker,
Sydney.
154 PRINCIPLES OF LABOR LEGISLATION
the government will not prosecute the rank and file, and
the employer is bound by the awards. Practically the com-
pulsory arbitration system of New South Wales has become
an imperfect wage board system.
Among the other states, Western Australia copied the New
Zealand model in its first law of 1902. But, as in New Zea-
land, the district conciliation boards proved a failure. In the
laws of 19 12 they were abolished, and now the court may ap-
point advisers or "assessors " to assist it. Interestingly enough,
union preference, provided in the earlier law, disappears from
the later one in spite of the fact that the new law was passed
by a labor ministry. Reports of the actual working of the
law are contradictory. The two other states, Queensland and
South Australia, passed their first law in 191 2, in both cases
by the anti-labor party. The Queensland law was the result
of a streetcar strike. The South Australian law is noteworthy
for its severe and elaborate penalties for acts connected with
strikes, such as picketing. These systems have been in exist-
ence too short a time to show their actual working.
Among the provisions of the new Commonwealth constitu-
tion of Australia, adopted in 1899, was the right to create a
compulsory arbitration court for interstate disputes. This
right was made substantial in 1904 by the passage of the
industrial arbitration act. The law was modeled on the 1901
act of New South Wales. There was no system of wage
boards, but simply a single court of arbitration with its presi-
dent the sole member. This court not only hears appeals,
but can on its own initiative summon parties. Its determina-
tions are final, but it "may" state a case to the high court
(the supreme court of the Commonwealth) for advice. As
in the New South Wales law, no prosecution can be started
against any one for a strike or a lockout without the consent
of the court. Since this consent has never been given in
the case of a strike the law is scarcely more than a minimum
wage law.
The scope of its power in relation to the state courts is, for
us, the most interesting question. The law gives to the court
power over "disputes extending beyond the limits of any one
state" — except in regard to disputes in agricultural indus-
tries. Subsequent acts have attempted to enlarge its scope,
COLLECTIVE BARGAINING 155
but have been declared unconstitutional, and when Justice
Higgins, the president, has submitted a case to the high court,
the rulings of the court have usually been restrictive against
the Commonwealth. Uncertainty has remained as to what
is a "dispute" and what is really meant by "extending be-
yond the limits of one state." It is obvious that if a request
for a change of wages paid by two different employers in two
different states constitutes a "dispute extending beyond the
limits of one state" the Commonwealth court can strip the
state courts of any real power. Already the court has deter-
mined wages on the local tramways from Perth on the west
coast to Brisbane on the east coast.
A curious distinction has been made by the high court, by
which wage board decisions of Victoria are considered part
of the Victorian law and have restrictive power over rulings
by the Commonwealth Court of Arbitration, where applied
within that state, while the awards of arbitration courts of the
several states are not regarded as law and have no restrictive
power. This led in 1 9 1 2 to the employers of Victoria petition-
ing that the building trade laborers of that state be brought
under a state wage board, as the latter were seeking, with the
building laborers of other states, to come under the Common-
wealth Court of Arbitration. The Labor Party stands com-
mitted to the abolition of state courts of arbitration, their place
to be taken by district courts under the authority of the
Common weal th .
Unlike New Zealand, there can be no legal strike in Aus-
tralia outside of Tasmania and Victoria, since the compulsory
arbitration laws have "blanket" provisions against strikes
and lockouts. But, with governments either purely labor or
purely anti-labor, th fadministration of these laws seems to
have been, at least in New South Wales, either absurdly flabby
or absurdly frantic. Instead of government acting as a judge
it becomes a plaintiff or defendant determining the adminis-
tration of law.
More Commonwealth ministries have been wrecked on both
sides of the question of "union preference" than on any other
question. Union preference, which is used as a harmless bait
in New Zealand to bring labor unions under the act, becomes
a grave political question in the states and in the Common-
1 56 PRINCIPLES OF LABOR LEGISLATION
wealth, where the vote of labor and its opponent is very close.
New South Wales has adopted union preference in its com-
pulsory arbitration acts. Rather curiously, Western Australia,
with the strongest labor party of all the states, repealed, in
191 2, the provisions regarding union preference which had
existed in the act of 1902. The Commonwealth court has had
the right to grant union preference, but Justice Higgins, al-
though once a member of a labor ministry, grants union prefer-
ence, not as in New Zealand in cases where there is a strong
union, but only in cases where a union has been oppressed.
In most of the states decisions are based on existing strength
of the parties, and are similar, therefore, to decisions in a court
of voluntary arbitration. But Justice Higgins of the Com-
monwealth court has chosen for his minimum for the lowest
paid laborers not the customary wage, nor a wage based on
the strength of the union, but a wage based on a standard of
living. This was most .sharply shown in the decision in 19 14
in the case of the dock laborers, where probable annual earn-
ings, taking into account fluctuations of employment, were
taken as the basis for an hourly wage. 1 We have thus trav-
eled far from voluntary arbitration or strikes, with wages de-
termined by the strength of the two parties, far from minimum
wages based on what the more reputable employers pay, to a
determination of wages on a consumers' standard of living.
c. Canada and the United States. In Canada and the United
States we again contrast the situation of the classes. Australia
is ruled by a labor party. Labor in the United States has never
been a chief minority party. Where it has been a straight
conflict between labor on one side and the other elements of
society on the other side, labor has been defeated at the polls.
Again, in regard to unionization, the unskilled and semiskilled
are unionized in but a few industries. Organized labor is,
for the most part, organized skilled labor. Such labor is
strong at industrial bargaining; it is weak only at the polls.
It is therefore no blindness but wise calculation which has set
the leaders of organized labor against government interference
in industrial disputes. They could not count on controlling
government, and they cannot predict what standard the gov-
1 New Statesman, June 6, 1914, p. 262.
COLLECTIVE BARGAINING 157
eminent would use in its awards. Unions which have gained
for their members the more desirable conditions of labor are
not willing to risk what they have gained for a doubtful stand-
ard imposed by the outside public which might take into
account the average and not the exceptional condition of
labor.
The employers, also, are afraid of compulsory arbitration.
Through their voting rights alone they have even less power
at the polls than the skilled workmen. Only by other means
and by the aid of other classes can they control politics.
There is but one class which would be likely to gain by en-
forcing higher standards. It is the immense but miscellane-
ous class of unskilled and semiskilled men, and of women and
children. They have no voice to make their wishes known.
Against the joint opposition of organized labor and capital,
compulsory arbitration makes no headway in the legislatures,
in spite of the agitation that follows every great strike. Only
once has it been within the zone of practical politics. The
anthracite coal strike of 1902 put the voluntary system to
a considerable strain. Arbitration was accepted by the
employers only after pressure was put upon them by the
President of the United States.
In the report on the arbitration award governing the de-
mands of the eastern locomotive engineers in 19 12, the chair-
man, representing the public, advocated a permanent wage
commission and added: "Is it unreasonable to ask that men
in the service of public utilities shall partially surrender their
liberty in the matter of quitting employment, so that the
nation as a whole may not suffer disproportionately?" l The
sharpest criticism of this doctrine came from the minority
report representing the engineers: "To insure the permanent
industrial peace so much desired will require a broader states-
manship than that which will shackle the rights of a large
group of our citizens." 2 When the western railroad arbitra-
tion of 19 1 5 resulted unsatisfactorily to the brotherhoods the
minority, representing them, protested that "no act by a
1 Report of the Board of Arbitration in the Matter of the Controversy be-
tween the Eastern Railroads and the Brotherhood of Locomotive Engineers,
1912, p. 107.
2 Ibid., p. 123.
158 PRINCIPLES OF LABOR LEGISLATION
governmental tribunal could more keenly bring home to the
wage-earners of this country the consideration they might ex-
pect if boards under governmental supervision and control
were to review and adjust their wages and working conditions
on that basis." And so the matter stands : the employers are
dissatisfied with what they consider one-sided compulsory ar-
bitration, the employees attack any greater measure of
coercion.
One of the objections frequently raised against compulsory
arbitration is its unconstitutionality in violation of the thir-
teenth amendment, in that it imposes involuntary servitude
other than punishment for crime. This objection is probably
not sound. We have already seen l that quitting work col-
lectively in pursuance of an unlawful agreement contains the
element of conspiracy which makes a strike essentially differ-
ent from the ordinary quitting of work. Such a concerted
agreement may be enjoined and punished as contempt, and
there are sufficient precedents in the decisions to warrant the
constitutionality of imposing penalties, should a compulsory
arbitration law be shrewdly drafted and popularly supported.
It is not enough to raise the objection of constitutionality,
for constitutions change with interpretation. The lasting ob-
jections must be found elsewhere.
While Canada and the United States have not adopted
systems of compulsory arbitration, they have adopted coer-
cive features at three different steps in the procedure of gov-
ernmental arbitration. These are compulsory investigation,
the enforcement of awards which have been accepted by both
parties, and the prohibition of sudden change of terms or
sudden strikes or lockouts.
The first is for the sake of official and public information.
Directly it can have no effect on the bargaining rights and the
bargaining tactics of the two parties. It is embodied in some
of the state laws of voluntary arbitration and was a part of
the federal act of 1888. 2 But when it was proposed in the
Townsend bill in 1904 to give that power again to a commission
appointed by the President, the bill was defeated, for at the
x See "The Law of Conspiracy," pp. 101-104.
2 See "Mediation by Government," pp. 132, 133.
COLLECTIVE BARGAINING 159
hearing appeared against it the representatives of the American
Federation of Labor, the railroad brotherhoods, and of the
American Anti-boycott Association.
It is only with the Canadian industrial disputes investiga-
tion act that collective bargaining itself is subject to the coer-
cion of government. That act makes a sudden change of
terms and a strike or lockout without sufficient notice un-
lawful in a certain class of industries affected with a public
interest. The industries are public utilities and mines. In
1906, the year before its passage, there had been a prolonged
strike in the Alberta coal mines which threatened a coal
famine. The act makes it unlawful in such industries to
change the terms of employment without thirty days' notice,
and requires that, if within that time, appeal is taken to the
minister of labor, the terms of employment shall remain the
same pending an investigation. It is likewise unlawful to
strike or lock out until after a hearing and findings by the
investigating board. Then either a change of terms, or a
strike, or a lockout is perfectly lawful. The act is coercive
only against the sudden strike and the sudden change of terms.
Upon application the minister of labor appoints a board to
which the employees nominate one man, the employers an-
other, and the two men nominate the chairman. In case of
failure to nominate the minister does the selecting.
The law seems to have been successful in diminishing the
number of strikes, probably more through conciliation and
public opinion than through coercive measures, which seem
not to have been seriously enforced. There have been but
nineteen strikes in industries under the act from 1907 to 1915,
and the Labour Gazette x boasts of a very large number of settle-
ments. The employers favor the law. As to the employees,
the miners are hostile, the railroad men generally favor it.
Other classes of labor are mild in their attitude.
The Canadian disputes act instantly appealed to the public
or to the employers of other lands. Part of its machinery
was adopted the following year (1908) in New Zealand. An
act somewhat similar was passed in the Transvaal in 1909.
Bills based on its principles were introduced into the legisla-
1 Canada, Labour Gazette, Vol. XV, 1915, pp. 1302-1312.
160 PRINCIPLES OF LABOR LEGISLATION
hires of New York, Wisconsin, and California, but it was not
until the upheaval in Colorado in 1914-1915 that a law was
actually passed in the United States embodying restrictions on
change of terms and on strikes and lockouts.
The law of 191 5 ' gives to the Industrial Commission of
Colorado, among its other powers, the power to compel a
hearing in the case of an industrial dispute, and to deliver an
award, which, like those under the Canadian act, is not
mandatory. As in the Canadian act, change of terms of em-
ployment, strikes, and lockouts are prohibited until after thirty
days' notice and until after a hearing and award if such hear-
ing is started within the time of notice. Going beyond the
Canadian act, which is limited to public utilities and mines,
the Colorado law covers all employees except those in
domestic service, in agriculture, and in establishments em-
ploying less than four hands. The law was first invoked 2
when a large cracker company announced a decrease of wages
to take effect the following week. Some of the employees
struck and the commission ordered the employers to submit
their proposed reduction to the commission and the employees
to resume work. Both sides obeyed. 3 " No longer is a strike
a private affair," was the editorial comment in a prominent
Denver paper. 4
4. Unions of Government Employees
With the broadening scope of the state as an industrial
employer, the collective bargain is, in some cases, entered upon
even by the government with its employees. Here it presents
a peculiar problem. The state 5 employs permanently larger
bodies of workers than any other single employer. 6 It is not
1 Colorado, Laws 1915, C. 180.
2 August, 1 91 5.
3 Rocky Mountain News, August 10, 1915.
4 Ibid., August 11, 1915.
6 Meaning the governmental unit, national, state or municipal.
6 The United States government on June 30, 191 4, had in its employ
482,721 persons (United States Civil Service Commission, Report, 1915,
p. 6), approximately the same number as employed in the entire iron and
steel industry in the United States. To this number should be added
the employees of state and local governments.
COLLECTIVE BARGAINING 161
subject to the competition that limits the private employer in
his bargain with labor, and it is the medium through which
the employee with the suffrage becomes in a measure his own
employer. In such states as allow practically universal suf-
frage it then seems less necessary for the public employee to
use the weapon of strike or boycott employed by the private
worker in his struggle for better wages and working conditions.
(j) Recognition of Unions
The right of the public employee to strike is not conceded
by government, although in many countries the right of gov-
ernment workers to organize is not denied them. Russia, 1
Turkey, 2 and Roumania 3 forbid concerted action on the part
of government employees under penalty, and even in republi-
can France public strikes arc forbidden and punished, 4 while
the right of public employees to organize is at least doubtful
and certainly restricted. 5 Even in the United Kingdom, in
Australasia and the United States, where government em-
ployees are nominally allowed to combine, trade unionism
among public employees is not freely tolerated, there being
still a general sentiment that opposition of public employees
to the government savors strongly of insubordination and un-
patriotism. 6 This feeling is especially strong in France, where
unionism has come to be regarded as a real danger, due largely
to the great postal and railway strikes. 7 At the same time
•Imperial ukase of December, 1905 {Bulletin of the International Labor
Office, Vol. I, 1906, p. 51).
2 Act of November 6, 1908 {Ibid., Vol. Ill, 1908, p. 331).
3 Decree of December 19, 1909 {Ibid., Vol. V, 1910, p. 437).
4 Order of March 18, 1909, relating to the organization of disciplinary
committees of the outdoor staffs of the postal and telegraph service,
providing penalties for "collective or concerted refusal" on the part
of the staff. {Ibid., Vol. IV, 1909, p. 293.)
5 The minister of public education maintained in 191 2 that under the
law of 1884, which gave legal standing to labor unions, syndicates of
teachers were not recognized, and such a syndicate was dissolved by the
French government. See American Federationist, February, 191 3, p. 136.
6 New Statesman, May 8, 191 5, special supplement on "State and
Municipal Enterprise," p. 22.
7 An account of the postal strike and its cause may be found in J. H.
Harley, New Social Democracy, 191 1, pp. 122-143. Also see Graham Tay-
lor, " Unionizing Government Employees," The Survey, May 8, 1909, p. 226.
11
162 PRINCIPLES OF LABOR LEGISLATION
the feeling of the employees, as expressed in the international
conference of public employees (August, 1907), is that the
employee, even on public works, has a right to organize and
strike as a means of obtaining desired concessions as to con-
ditions of employment. 1 In the United States, in 1902, the
President by executive order, amended in 1906, forbade all
government employees directly or indirectly to solicit an in-
crease of pay or to influence legislation in their behalf, save
through the heads of departments in which they served. The
protest of the unions 2 led to the act of 191 2, adopted as a
rider to the Post Office appropriation act, 3 which permits
post office employees to petition Congress, but forbids them
to affiliate with any outside organization which imposes upon
them an obligation to strike, or purposes to assist them in
any strike against the government. 4 The executive order
applies only to the activities of unions of public employees in-
fluencing Congress. It does not prevent organizations within
the department nor collective bargaining with the depart-
ment. Such collective bargaining exists in a crude form in
departments requiring skilled labor, and, in the case of the
War Department, a complete scheme of arbitration has been
worked out for the arsenal at Watertown, Mass., for all me-
chanical employees. This provides for a mediation board of
an equal number of members elected by the employees and
officers appointed by the commanding officer. There is a
supreme Mediation Board at Washington, including repre-
sentatives of the national unions to which the arsenal workers
belong, and officers appointed by the Chief of Ordnance.
Appeal lies to the Secretary of War. 5 A similar arrangement
had been worked out in the street - cleaning department of
New York in 1896. 6
Other governments have found it necessary to adopt forms
1 United States Department of Labor, Bulletin No. 88, May, 1910, p. 867.
2 See American Federationist, January, 1915, p. 28; also January, 1912,
p. 36; January, 191 4, p. 51.
3 Congressional Record, Vol. XLVIII, 1912, p. 11819.
4 United States, Laws 19 12, C. 389, Sec. 6.
5 See 0. O. 10225/582, "Instructions in regard to Hearings of Griev-
ances, issued January 9, 1915, by the Chief of Ordnance to the Com-
manding Officer, Watertown Arsenal."
6 See Commons, Labor and Administration, 1913, pp. 108-113.
COLLECTIVE BARGAINING 163
of collective bargaining with employees. In New Zealand
the act of 1908 » provides that any society of railway employees
may register and become officially recognized by the govern-
ment. It may then enter into an ' ' industrial agreement ' ' with
the minister of railways and, by registration, the articles of
agreement are brought under government enforcement. Any
appeal goes before the court of arbitration, consisting of a
judge and representatives of the government and employees.
After a hearing the award takes the form of a new compulsory
agreement or an enforcement of the old. There are appeal
boards for postal and telegraph employees, 2 tramway em-
ployees, 3 and for public-school teachers; and any ten or more
teachers may organize a society, which, like the railway or-
ganization, registers and has corporate existence. 4
The French" plan for railway administration does not recog-
nize an employees' union as such, but goes farther than the
New Zealand scheme in arranging for cooperation between
government and employees. Officials and workers are repre-
sented on the various committees by their chosen delegates.
Thus, in the councils and grades committee they help prepare
reports and lists of premiums and promotions. As delegates
they are part of the council of inquiry whose duty it is to
express an opinion on all important questions of discipline
submitted by the general manager. 5 In addition there are
the representative district councils, which act as buffers be-
tween the railway administration and the employees, make
explanations, and administer necessary reprimands. Officials
no longer reprimand workmen. Above the district councils is
the Conseil de Reseau, 6 the supreme advisory board of the
whole state railway system. Of the twenty-one members
1 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 312.
2 Act of October 24, 1894. New Zealand Statutes, 1894, post and
telegraph department act.
3 An act to amend the tramways act, 1908, New Zealand Statutes,
1910, p. 370.
4 Act of October 31, 1895, New Zealand Statutes, 1895. School
teachers in the United States have also organized and affiliated with
a central federation; American Federalionist, January, 1903, p. 15.
5 Report of State Railways Administration for 1909. (New Statesman,
May 8, 1915, special supplement on "State and Municipal Enterprise,"
P- 2 5-)
"Instituted by ministerial decree September 24, 1911. (Ibid., p. 25.)
i6 4 PRINCIPLES OF LABOR LEGISLATION
appointed by the minister of public works, four are working
employees. l
In the Prussian railway system, autocratic as it is, there
have been since 1892 a series of advisory committees appointed
by the minister of public works, whose express mission it is
to smooth the working of the system by advising on all pos-
sible points of friction between management and operatives. 2
In the Swiss administration it is said to be an invariable cus-
tom for the general secretary of the railwaymen's trade union
to be appointed a full member of the board of administration,
the supreme governing authority of the railway system. 3
The foregoing are instances of formal agreements sanctioned
by law or established by administrative order. Far more ex-
tensive than these formal agreements is the unofficial recog-
nition of unions, especially in England and the United States,
where the head of the department deals with the representa-
tives of the union and then issues orders conforming to the
agreement but not mentioning the union. In this respect the
collective bargain is similar to that of certain large railway sys-
tems in the United States which nominally do not recognize the
railroad brotherhoods/but actually issue orders, through the gen-
eral manager, to which the unions have previously consented.
The advantage to government of formal recognition of
unions consists in establishing permanent boards of arbitra-
tion through which all grievances take their regular course.
Without such boards the unions, through political influence,
go over the heads of the departments to the legislative branch
of government. This is proper enough, and, indeed, is inev-
itable under universal suffrage, no matter what restrictions
the administration attempts to place upon them. But, with
permanent boards of arbitration, practically all grievances and
demands of the union can be settled within the department,
leaving to the legislature (municipal, state, or federal) only
the general policy of establishing standards of hours and
wages 4 to be enforced through the arbitration boards.
1 New Statesman, May 8, 1915,9.25 from Emil Davies, The Collectivist
State in the Making, 191 4.
2 Ibid., p. 25. See also E. S. Bradford, "Prussian Railway Adminis-
tration," Annals of the American Academy, Vol. XXIX, 1907, p. 310.
8 New Statesman, May 8, 1915, special supplement, p. 25.
* See "The Minimum Wage," p. 179; "Hours of Labor," pp. 259, 260.
COLLECTIVE BARGAINING 165
Outside the compulsory systems of Australasia, the final
appeal from arbitration boards lies with the head of the
department. In the war department it is the secretary of
war. In the street-cleaning department it is the commissioner.
This is essential in any voluntary system of arbitration in
public employment. The unions retain the right to strike
if they arc not satisfied with the arbitration, and therefore the
head of the department must finally decide as against a
strike, in case arbitration fails.
Another distinction between unions of public employees and
those that deal with private employers is the attitude toward
the closed shop. Government cannot discriminate between
citizens, as can private employers, and must maintain the
open shop. 1 But, since government is not forced by com-
petition to cut wages or lengthen hours, the unions do not
need the protection which the closed shop gives them. Yet,
under the compulsory systems of New Zealand and New South
Wales, a preferential union shop is maintained, which ap-
proaches the closed shop. 2
In the United States there is a semblance of union prefer-
ence in the statutory requirements of three states 3 to the
effect that the label of the typographical union be affixed to all
public printing. However, in Maryland this law seems to have
been disregarded, 4 while in Montana and Nevada, the remain-
ing two states, there have been no court decisions supporting
the law, although it has been observed. In at least eight
other states there have been court decisions adverse to dis-
crimination in favor of organized labor, in regard to either
employment on public works or the use of the union label on
public printing, 5 on the ground that the restriction of em-
ployment thus imposed is unconstitutional.
1 See decisions below.
2 New Zealand, act of 1908, Bulletin of the International Labor Office,
Vol. Ill, 1908, p. 312. New South Wales, industrial arbitration act,
Acts of Parliament, 1911-1912, No. 17.
3 Maryland, Public General Laws 191 1, Art. 78, Sec. 9; see also Laws
1910, C. 698, Art. 78; Montana, Revised Code 1907, Sec. 254; Nevada,
Revised Laws 191 2, Sec. 4309.
* Reports of state officials do not carry the label.
s Illinois: Adams v. Brennan, 177 111. 194. 52 N. E. 314 (1898); Holden
v. Alton, 179 111. 318, 53 N. E. 556 (1899); Fiske v. People, 188 111. 206,
58 N. E. 985 (1900). Iowa: Miller v. City of Des Moines, 143 la. 409,
1 66 PRINCIPLES OF LABOR LEGISLATION
(2) Cooperative Employment
An official recognition of organizations of public employees
is found in the cooperative employment system. There are
two principal methods, the first of which is the cooperative
day labor system, as applied in New Zealand. 1 This is a time
and piece work system under which men out of employment
arrange themselves in small groups, averaging about fourteen
(the groups were at first, and occasionally still are, larger),
select one or two "headmen," and enter into contracts with
the government for sections of public work at "schedule
rates" based on the estimates of government engineers in
charge of the work. The plan seems to have worked well in
New Zealand, but not so well in New South Wales, where it
has been confined to the lowest and least efficient stratum of
workers. Under the plan the government is responsible for
the checking up and actual direction of the work. Evidently
the group is not a real labor union.
The second form is found principally in France and Italy, 2
where workmen organize their own groups and, as such, con-
tract for government work. The group constitutes, therefore,
not a labor union, but a union of labor contractors. The
officials of the government are not in charge of the work,
but they turn it over to the groups, the plan being a modifica-
tion of the competitive contract system rather than a variety
of direct employment. The government authorities favor
these societies in the placing of contracts, and the result has
been a steady and appreciable growth in their number and
undertakings.
122 N. W. 226 (1900). Tennessee: Marshall & Bruce Company v.
Nashville, 109 Tenn. 495 (1902). Michigan: Lewis v. Detroit Board of
Education, 139 Mich. 306 (1905). Georgia: Atlanta v. Stein, in Ga.
789, 36 S. E. 932 (1900). Nebraska: Wright v. Hoctor, 95 Neb.
342, 145 N. W. 704 (1914). Alabama: Inge v. Board of Public Works,
135 Ala. 187 (1902). Ohio: Cleveland v. Clements Bros. Construction
Co., 67 Ohio St. 197 (1902).
1 Great Britain, Board of Trade, Labour Department, Report on Co-
operative Contracts Given out by Public Authorities to Associations of Work-
men, Parliamentary Papers, Vol. LXXX, 1896.
2 Victor von Borosini, "The Italian Triple Alliance of Labor," Ameri-
can Journal of Sociology, Vol. XIX, 1913-1914, p. 204 ff.
CHAPTER IV
THE MINIMUM WAGE
Minimum wage legislation marks a new stage in the long
line of attempts to equalize the power of employer and em-
ployee in making the wage bargain. In contrast with con-
ciliation and arbitration, either voluntary or compulsory,
which take place only after a demand has been made by one
party and refused by the other, minimum wage laws seek
to regulate the wage rate before any dispute over the terms
of the wage bargain has arisen. Moreover, interference by
the state between the parties to the wage bargain through
conciliation or arbitration usually implies the organization of
the workers and the existence of collective bargaining. 1 But
in any modern industrial community large numbers of un-
organized workers are found, still bargaining individually, em-
ployed at low wages and apparently unable to make any
effective efforts themselves to improve their condition. If they
are to be helped toward an equality in bargaining power with
the employer, the state must take the initiative. This it does
by setting standards below which wages may not be depressed
— in other words, by passing minimum wage legislation. 2
From a slightly different point of view the legal minimum
wage fills a gap in our code of laws which protect the employee
by regulating the conditions of employment. Minimum stand-
ards for safety and sanitation have been enacted in many
states and the maximum length of the working day has often
been fixed. Such safeguards have long been familiar and are
1 The industrial courts of Europe, previously described, employ con-
ciliation in both collective bargaining and individual contracts.
2 Modern minimum wage legislation is not comparable to the mediaeval
fixing of wages by justices of th , which prescribed not a minimum,
but the actual rates to be paid. Sec "Coercion by Government," p. 141.
1 68 PRINCIPLES OF LABOR LEGISLATION
generally accepted as necessary and beneficial to the health
and welfare of the workers. There exists also a considerable
group of laws which determine certain conditions of the wage
payment. For instance, the weekly payment of wages may
be required or payment in "store orders" may be forbidden,
as described in Chapter II. But any legislative yiterfer-
ence with the wage rate was long in making its appearance,
though equally essential to a complete code of legislative
protection for the workers. Work may be done under safe
and sanitary conditions for hours not too long, and payment
of wages may be prompt and regular, but if the amount re-
ceived is too small to secure the necessaries of life the worker's
health and welfare are menaced. Therefore, the same mo-
tives which have caused most of our states to establish mini-
mum standards to guard the worker against unsafe and
unsanitary conditions have caused many of them to set up
standards for protection against the evils of low wages.
But whether one emphasizes the protection to health and
welfare afforded by minimum wage legislation or its equaliza-
tion of the strength of the parties to the wage bargain it
appears not as a novelty in legislation, but as an extension of
principles whose enactment into law is of comparatively long
standing.
i. Economic Basis
That a large proportion of unskilled workers are paid wages
far too low for decent self-support is a fact confirmed by many
wage investigations and well known to those even slightly
familiar with present-day industrial conditions.
(/) Low Wage Scale
It is the concensus of expert opinion at the present time
that a weekly wage of $8 or more is necessary under urban
conditions for the maintenance of a self-supporting woman in
simple decency and working efficiency, and that a man with
a wife and three children requires at least $15 to $20 weekly
for their proper support. 1 Yet a recent study on woman's
!See Howard B. Woolston, "Wages in New York," The Survey,
February 6, 191 5, p. 51°-
THE MINIMUM WAGE 169
wages in the United States concludes that 75 per cent, of
female wage-earners receive less than $8 weekly, 50 per cent,
less than $6 and 15 per cent, less than $4, and that these
wages are further reduced approximately 20 per cent, through
lost time and unemployment. 1 The pay of unskilled male
workers is at a correspondingly low level. Streightoff, in his
discussion of American standards of living, estimates that at
least six million adult men, married as well as single, receive
less than $600 a year, or $12 a week. 2 More intensive in-
vestigations bear out these figures. The United States Im-
migration Commission studied a large number of typical
households representing both native and foreign-born in six-
teen leading industries. More than half of the male heads
of families earned less than $500 a year, and nearly two-thirds
less than $6oo. 3 More recently, the New York State Factory
Investigating Commission examined the pay-rolls of over
2, 000 stores and factories during the fall, winter, and spring
of 19 13-19 1 4. Out of 57,000 women and girls, approximately
34,000, or 60 per cent., earned less than $8 in a typical week.
Seven thousand out of 14,000 married men, or 50 per cent.,
earned less than $i5- 4
It seems, then, no exaggeration to say that the majority
of low-skilled industrial workers in the United States receive
wages too small for decent self-support. This fact explains
the demand for minimum wage legislation as necessary to
social welfare; the causes for the low scale form the economic
basis which determines the extent to which the demand is
practicable and the legislative standards enforceable.
(2) Economic Weakness of Low-Paid Workers
The almost entire absence of strong labor organizations
and collective bargaining among this group of wage-earners
1 Charles E. Persons, "Woman's Work and Wages in the United
States," The Quarterly Journal of Economics, February, 1915, p. 232.
2 Frank H. Streightoff, Distribution of Incomes in the United States, 1912,
P- 137-
3 Arthur N. Holcombe, "The Legal Minimum Wage in the United
States," American Economic Review, 191 2, Vol. II, p. 33.
A Howard B. Woolston, "Wages in New York," The Survey, February
6, 1915. P- 5IO-
, 7 o PRINCIPLES OF LABOR LEGISLATION
is an important factor in producing the low wage scale.
Mam- are women who are often members of a family group,
unal >le to move from place to place in search of better oppor-
tunities, but remaining at home to overcrowd the few lines
of work available in a given locality. Then, too, the ma-
jority of women workers are young and inexperienced and
their frequent withdrawal from industry on marriage makes
them look upon their work as only temporary. On the
whole, it has been extremely difficult to form stable unions
among women workers. Experience both in England and in
this country shows that organization among low-skilled men
workers is almost equally difficult. In the absence of collec-
tive agreements it has sometimes been possible to compel the
workers to keep their wages secret. An Oregon department
store, for instance, requires each applicant for employment
to sign an agreement which includes a promise to "keep my
salary confidential." 1 Such secrecy obviously makes it
easier to depress wage scales. Under the circumstances it
is also not surprising that among this group of workers the
relation between wages and productivity is not traceable,
but that "there are also great differences in wages for work
that is apparently the same. Some firms pay constantly 25
per cent, more than their rivals for similar operations." In
the United States the situation is further complicated by the
stream of immigration, which furnishes an abundant supply
of cheap labor and which puts still another barrier, in the
shape of divergent language and customs, in the way of union
organization.
Another reason for the low wage scale, largely the result
of the first, is the cutthroat competition of the workers
for work. Among the unskilled, unorganized workers, the
wage that the cheapest laborer, such as the partially sup-
ported woman, the immigrant with low standards of living or
the workman oppressed by extreme need, is willing to take,
very largely fixes the wage level for the whole group.
A third reason, the obverse of that just discussed, is the
1 Report of the Social Welfare Committee, Consumers' League of Oregon,
^Jurth Report of the Neiv York Factory Investigating Commission,
115, "The Confectionery Industry," Vol. IT, p. 312.
THE MINIMUM WAGE 171
absence of active competition among employers for workers.
With a plentiful supply of the lower grades of labor continually
seeking employment, the employer need offer no induce-
ment in the form of higher remuneration in order to fill his
shop.
Moreover, a socially undesirable type of competition be-
tween employers flourishes when the bargaining power of
employees is weak. The encouragement of superior ability
and invention has always been pointed out as one of the
chief advantages gained by the community from the com-
petitive system of production. When an employer can hire
workers for practically his own price, he can be slack and in-
efficient in his methods, and yet, by reducing wages, re-
duce his cost of production to the level of his more able
competitor.
Minimum wage legislation, therefore, may answer the de-
mands of social policy in two ways. By setting a barrier
below which wages may not fall, it lightens the pitiful poverty
and prevents the degeneration in body and spirit of those
forced to live on a wage too small to supply the necessaries
of life. Competition among them no longer takes the form
of offering to work for lower wages, but that of developing
greater efficiency. At the same time employers arc forced
to compete in efficiency of management, thus securing for
society at large the many advantages of constantly improved
methods of production. Minimum wage laws attempt neither
to destroy competition nor to fix wages by law; they merely
seek to set the lower limits to both in the interests of society
as a whole.
2. Historical Development
(1) Australasia
Australasia is the birthplace of minimum wage legislation.
Though it is a new and prosperous country, as long ago as
the 'eighties the sweating system, with its evils of low wages,
long hours and unsanitary conditions, was discovered to be
alarmingly prevalent. The Age, the Leading Melbourne news-
paper, carried on a crusade against these conditions, and a
royal commission was appointed whose report in 1884 showed
i 7 a PRINCIPLES OF LABOR LEGISLATION
that hours wore excessive and that wages were constantly
reduced by the miserable rates paid to home workers. Public
indignation was aroused until finally determined efforts were
made to overcome these evils.
In 1894 New Zealand passed a law providing for the com-
pulsory arbitration of labor disputes, which, while primarily
intended to preserve industrial peace, may also be used for
the prevention of sweating. The district conciliation boards
established by this law have authority to fix minimum wages,
and if sweated workers want their conditions improved they
need only file a statement of their claims in the office of the
nearest conciliation board. By means of this machinery
underpaid workers, men more often than women, have secured
wage increases.
However, the first Australasian law whose main purpose
was to end sweating was passed by Victoria two years later,
and since it is the Victorian method which Great Britain
and the United States have adopted, the system deserves
consideration at length. The public feeling against the
sweating system in Victoria had resulted in the formation
of an Anti-Sweating League. Largely as a result of the
league's efforts and in spite of bitter opposition from the
employers under the leadership of the Victorian Chamber of
Manufactures, Victoria passed the first minimum wage law
in 1896. Sir Alexander Peacock, originator of the system
and later minister of labor in Victoria, has written: "It
was alleged, first, that all work would be driven out of the
country; secondly, that only the best workers would be em-
ployed; and thirdly, that it would be impossible to en-
force such provisions at all. . . . However, the government
managed to carry the bill and the wage-board system was
inaugurated." 1
The law required that representative boards fix minimum
wages in certain industries designated by the legislature.
Moreover, being frankly an experiment, the act was to be
in force for only four years. Wage boards were first appointed
in the six especially sweated trades of boot-making and
1 M. B. Hammond, "The Minimum Wage in Great Britain and Aus-
tralia." Annals of the American Academy of Political and Social Science,
July, 1913. P- 2 8.
THE MINIMUM WAGE 173
baking, which employed mostly men; clothing, shirt-making,
and underclothing, which mostly employed women; and in
furniture-making, in which the competition of Chinese labor
was depressing wages. In 1900, when the first minimum
wage law came to an end, the government brought in a bill
providing for the extension of the wage-board system to
other trades. The Victorian Chamber of Manufactures pro-
tested violently, urging, and with good reason, that the gov-
ernment's proposal meant the extension of the system to
trades in which there was no evidence of sweating. How-
ever, the government showed that it had received a number
of applications from employers, asking for the appointment
of special boards, and that sweating had disappeared in the
trades in which boards had been established. Accordingly
the bill was passed and an extension of the system was begun
which has continued from year to year until at the present
time nearly 150 separate boards have been appointed, fixing
minimum wage rates for over 150,000 employees in a state
whose total population is less than a million and a half. The
only important group of workers whose wages are not regu-
lated are those in agricultural pursuits. Minimum wage rates
have been established for all the important manufacturing
occupations in the cities and also for street railways, mer-
cantile and clerical employments and mining. The wage-
board system is no longer regarded as an emergency measure
intended to secure a living wage where conditions are excep-
tionally bad, but as a satisfactory method of fixing the stand-
ard wage in any trade. The act was again renewed in 1903,
and in 1904 was made permanent. While the scope of the
law has been widely extended the opposition of the employers
has decreased, until in April, 191 2, M. B. Hammond, of the
Ohio Industrial Commission, as a result of first-hand investi-
gations reported that both employers and employees "are
now practically unanimous in saying that they have no de-
sire to return to the old system of unrestricted competition in
the purchase of labor." l South Australia, Queensland, and
Tasmania in 1900, 1908, and 19 10, respectively, adopted legis-
lation similar to the Victorian act.
1 Ibid., p. 35.
174 PRINCIPLES OF LABOR LEGISLATION
(2) Great Britain
One of the most, important developments in the English
social reform movement during the last decade is the accep-
tance of minimum wage legislation as a practicable policy.
While ten years ago the fixing of minimum wage rates by law
was apparently outside the realm of practical politics, it is
advocated in Great Britain to-day not only by the Labor
Party, but also by the Liberals and an influential group of
Conservatives.
Among the chief reasons for this development of public
policy is the increased public knowledge of conditions among
sweated workers. Investigations showed that large numbers
of low-skilled unorganized workers were receiving less than
the wage necessary for the maintenance of mere physical
efficiency. Attempts were made to extend trade unionism
among them, so that they might raise their wages as more
skilled workers had done, by collective bargaining. But the
formation of strong unions among these sweated workers was
generally found to be impossible. The market for their labor
was chronically overstocked and the struggle for bare exist-
ence was too severe to permit the development of stable
organizations. The public was aroused to this menace of in-
sufficient wages, which its victims themselves seemed power-
less to remedy, mainly through the efforts of the National
Anti-Sweating League, which, with the Labor Party and cer-
tain other organizations, vigorously urged the adoption of
minimum wage legislation. The agitation resulted first in a
parliamentary inquiry and finally in 1909 in the passage of
a trade boards act, modeled on the Victorian statute, which
should go into effect the following year.
This law provided that wage boards may be established by
order of the board of trade, subject to ratification by Parlia-
ment, for all employees in any industry in which the prevail-
ing rate of wages is "exceptionally low as compared with
that in other employments." l The first four trades regu-
lated were tailoring, paper -box making, the finishing of
machine-made lace, and the manufacture of certain kinds
1 Trade boards act, 9 Edw. 7, C. 22, Sec. 1 (2).
THE MINIMUM WAGE 175
of chain, industries which employe 1 altogether about 250,000
operatives. By 19 13 the successful operation of the law was
so generally recognized that the formation of boards was
ordered in four additional trades: sugar confectionery and
food-preserving, shirt-making, hollow-ware making, and cotton
and linen embroidery, employing nearly 150,000 more workers.
It was hoped also to include certain branches of the laundry
trade, but the bill was withdrawn on account of defects in
terminology and has not yet been reconsidered. At the time
of writing the act has successfully withstood the strain of a
year of war-time. 1 The tailoring trade board has even raised
the minimum rate for "female workers other than learners,"
and additional branches of the trade have been brought under
the control of the board. 2 The comparatively slight opposi-
tion to the original law may be explained by the fact that by
its terms it was merely a means of dealing with unusual cases,
where wages were "exceptionally low." The trades covered
employ chiefly women workers and before regulation condi-
tions of employment were flagrantly bad. Wage boards for
them did not seem to commit the nation to the legal regula-
tion of wages as a general policy.
The first extension of the wage-board system outside the
sweated trades was also exceptional, but for an altogether
different reason. There had been great unrest among the
coal-miners during the winter of 1911-1912, culminating in a
strike in the spring of 191 2 which paralyzed industry. One
of the men's principal demands was a flat rate weekly mini-
mum wage. In the interests of industrial peace the govern-
ment was forced to yield to the principle of this demand by
passing a measure establishing representative district boards
to fix minimum wages and other working conditions. While
the operation of this act is said to have proved less satis-
factory than the workings of the trade boards, it presents
the issue of wage regulation in a wider form, not simply as a
means of protecting the sweated workers at the very bottom
of the industrial system, but as a supplement to voluntary
collective bargaining for a comparatively well-placed economic
group, the skilled men workers in a well-organized trade.
1 The Women's Industrial News, July, [915, p. 358.
2 The Women's Trade Union Review, July, 1915, p. 8.
i;6 PRINCIPLES OF LABOR LEGISLATION
So far, then, English minimum wage legislation has reached
some of the hardest pressed and some of the most fortunate
groups of industrial workers. A further extension of its scope
which would in part cover the workers between these two ex-
tremes was urged by Chancellor of the Exchequer Lloyd George
in the spring of 19 14. He proposed that a land commission be
empowered to fix minimum rates on a living-wage basis for all
agricultural labor, and foreshadowed the extension of the wage-
board system to all the lower-paid industries in the towns. If
these plans become law , the English system of trade boards will
have followed the same line of development as the Australian
system; that is, from a special device for remedying unusually
bad conditions to a common method for fixing wage standards
for all wage-earners. 1
*v-> v
(3) The United States
In America a wide-spread demand for minimum wage
legislation dates back no further than 19 10. Two factors
contributed to the rise of popular sentiment in favor of the
legislation at this time. One was the increased knowledge of
conditions among sweated workers, resulting from such investi-
gations as that of the federal Bureau of Labor on Conditions
of Women and Child Wage-Earners in the United States. The
other was the successful operation of the British trade-boards
act under conditions not unlike those in our own country.
In public employment, to be sure, wages in this country
had for several years been regulated both by state laws and
by city ordinances. Most commonly these regulations fix the
wage rate 2 or require that "prevailing rates" be paid, which
are usually interpreted as union rates when a union exists in
the locality. Several statutes and ordinances, however, es-
1 Partly as a war measure, France passed in July, 1915, a minimum wage
law for women in certain branches of the clothing industry. (United
States Bureau of Labor Statistics, Monthly Review, December, 191 5, pp.
36-41.)
2 The New York City Board of Estimate showed a broad social point
of view in its efforts in 191 5 to fix a just wage for street cleaners, who
are among the lowest paid and least skilled of city employees. The board
proposed fixing their pay in harmony with the results of a thorough in-
vestigation of the income necessary for a family of five "living in accord-
ance with American ideals." Such an income was said to be $70 a month
in New York City.
THE MINIMUM WAGE 177
tablish a true minimum wage. For example, California pro-
vides that the minimum wage for all public employees except
those in public institutions shall be at least $2 a day. 1 Massa-
chusetts stipulates that "women cleaners and scrub women"
employed by Suffolk County must be paid not less than $8 a
week. 2 In 19 13 Spokane, Wash., established by popular
vote a minimum wage of $2.75 a day on public work, and on
January 2, 19 14, the state supreme court sustained this or-
dinance. But in this country until the last few years wage
rates in private employment were seldom considered a sub-
ject of possible legal regulation.
There were, indeed, sporadic attempts to fix minimum
wage standards by law. Typical of these is a bill introduced
in the Nebraska legislature in February, 1909. This pro-
vided that "for the purpose of protecting the American stand-
ard of living, and to insure to all who labor that they shall
have an opportunity to improve themselves, to educate their
children and to lay by a sum for old age," the minimum wage
"for all adult labor, male or female," should be 20 cents by
the hour or $9 by the week, with 25 cents an hour for over-
time. Such proposals, however, received but little serious
consideration.
The first American state to pass a minimum wage law was
Massachusetts. An investigating commission was appointed
there in 191 1, and its report resulted in legislation in 19 12.
In 19 13, as a result of further investigations, eight states 3
followed the example of Massachusetts, and in 19 15 two more
were added, 4 in spite of the pending decision of the United
States Supreme Court on the Oregon law, which probably
retarded the movement in the latter year. Investigating com-
missions have been at work in several other states, including
Connecticut, Indiana, Michigan, New York, and Ohio, so that
a further extension of legislation is foreshadowed.
Constitutional amendments specifically allowing minimum
wage legislation were passed by California in 19 14 for women
1 California, Code 1906, No. 2894, Sec. 1.
2 Massachusetts, Laws 1914, C. 413.
3 California, Colorado, Minnesota, Nebraska, Oregon, Utah, Wash-
ington, Wisconsin.
* Arkansas, Kansas.
12
i78 PRINCIPLES OF LABOR LEGISLATION
and minors, and, contrary to American precedent, by Ohio
in 19 1 2 for all classes of workers. Ohio, however, had in 19 15
taken no step toward legislation except to authorize the state
industrial commission to investigate working conditions among
women and minors alone. 1
Federal legislation of several kinds has also been proposed.
Bills have been introduced in Congress applying to em-
ployees in the District of Columbia, to employees of the
federal government, and to all workers engaged in interstate
commerce, but these measures have not as yet been given
much attention.
Thus far in the United States minimum wage legislation
has been even more restricted in scope than at its first enact-
ment in Great Britain or Australia. It has been passed to
remedy sweating, not among all workers as in the other
countries, but only among women and children. In this re-
spect minimum wage laws resemble much other American
labor legislation which also when first passed, in part for con-
stitutional reasons, in part perhaps because of the more evi-
dent inability of this class of workers to protect themselves,
applied only to women and minors. Then, too, many Ameri-
can representatives of labor oppose minimum wage laws for
men, feeling that men workers can obtain better wages by
organization without the aid of legislation. In addition wage
investigations in this country have far more often dealt with
women than with men, so that at present in America there
exists a much greater body of evidence to show inadequate
wages among women than among men workers.
Minimum wage legislation in the United States, then, is
expressly permitted by two state constitutions and exists in
eleven states. It is regarded entirely as a remedy for ex-
ceptional conditions, providing only a bare subsistence wage
for those considered the most helpless class of sweated workers
— namely, women and children. The more rigid limitations
of our written constitutions, the labor union opposition and
1 The department of investigation and statistics of the Ohio Industrial
Commission had issued up to November, 191 5, two reports on the sub-
ject — No. 1, "Wages and Hours of Labor of Women and Girls Employed
in Mercantile Establishments in Ohio in 1913," and No. 14, "Cost of
Living of Working Women in Ohio."
THE MINIMUM WAGE 179
the inefficiency of administration are factors which may work
against such an extension of these laws in the United States
as has taken place abroad.
3. Standards
The purpose of minimum wage legislation is the raising
of excessively low wages. The question of the standards of
wage awards is therefore an important one. How adequate
is the minimum wage? Is it always a "living wage," and, if
so, is account taken only of the bare physical necessities of
life, or is allowance also made for the requirements of mental
and moral welfare? Is provision made for the support of a
family or for the needs of the individual worker alone? Is
there any consideration of probable periods of unemploy-
ment ? On what basis do wage boards fix the pay of young,
inexperienced, and handicapped workers?
(7) Australia
In Australia there exists no statutory definition of the
minimum standard. The Victorian law of 1903 provided that
the "wages paid by the reputable employer" should be taken
as the basis, but this clause has since been stricken out. A
standard now often used is "the normal needs of the average
employee regarded as a human being living in a civilized
community," l which insures a living wage in the broader
sense of the term, not a mere subsistence wage. Moreover,
since the extension of wage boards to non-sweated trades,
questions of relative skill have become more important and
minimums are frequently set considerably above the level of
a living wage.
The question of differing wage standards for men and for
women has been clearly worked out in Australia. Since a
man must normally maintain a family, a living wage for male
workers must cover the cost of such maintenance; a woman
1 Commonwealth Arbitration Reports, Vol. II, p. 3.
1S0 PRINCIPLES OF LABOR LEGISLATION
ordinarily supports herself alone, so that the minimum for
female workers is fixed on that basis. "The minimum can-
not be based on exceptional cases." • For the same reason
the partial support of some women workers by their families
is not considered in fixing their wages. When both men and
women are employed in the same occupation, the wage rate
is fixed for the sex usually found therein.
(2) Great Britain
In England, where, again, no standard is set by the law
itself, the general practice is "to level the wage for the whole
trade in each district up to the standard of the best employer
in that district." 2 In the badly sweated trades for which
boards have been formed this means a considerable increase
for most of the workers, but not necessarily a living wage.
For instance, in chain-making, a large increase in hourly
rates for time work provided only 5 cents an hour for women
workers or approximately $2.70 for a full week's work of fifty-
four hours. 3
(3) The United States
a. Definition of the Living Wage. Nearly all the American
laws, unlike those of Great Britain and Australia, define in
general terms the principle to be followed in fixing wages,
which is usually that of a living wage. In a majority of the
laws phrases such as "the necessary cost of proper living"
and "to maintain the health and welfare" are used. 4 In
working out wage standards on this basis, the English practice
of leveling up wages to those paid by the best employer in
the trade in a given district is obviously not a sufficient guide.
Then, too, since the laws apply only to women and minors,
relative standards for the two sexes need not be considered
1 Commonwealth Arbitration Reports, Vol. VI, p. 71.
2 John A. Hobson, "The State and the Minimum Wage in England,
The Survey, February 6, 191 5, p. 503.
3 See R. H. Tawney, Minimum Rates in the Chain-Making Industry,
1914, p. 39.
4 California, Laws 1913, C. 324.
THE MINIMUM WAGE
181
as in Australia. One finds, however, America on the whole
using the Australian standard for women workers — namely,
the cost of living of the entirely self-supporting woman.
American employers have sometimes asked that the help re-
ceived by many women workers from their families be taken
into account in fixing the standard, but this request has been
denied.
A number of investigations were made to determine the cost
of living for a self-supporting woman, and, notably in Massa-
chusetts and Oregon, budgets were carefully worked out to
cover all the items considered necessary. 1 Such estimates
cover very modest amounts for food, clothes, shelter, and
washing, sometimes but not always medical expenses and car
fare, and also allow a meager sum for recreation, education,
and a short vacation. No provision is made for insurance or
savings, yet the other items alone mount up to $8 or $10
weekly. It becomes, then, a matter of grave social concern
when careful studies show that a majority of women wage-
earners in the United States receive less than this amount.
Up to November, 191 5, the rates set for experienced adult
workers in the four states making decrees fell between the
two figures named. The highest rate reported was $10, for
salesgirls in Washington ; the lowest was $8 for Massachusetts
laundry workers and women in Minnesota outside of first,
second, third and fourth-class cities.
"Necessary cost of living," therefore, is interpreted in
American minimum wa?e awards as little more than the cost
1 Minimum weekly budget for a
self-supporting woman in Boston.
Wage Board in the Brush Indus-
try, Massachusetts, 1914. (Second
Annual Report of the Minimum
Wage Commission, p. 9.)
Board and lodging $5-50
Clothing 1.35
Laundry 20
Car fare 60
Newspapers 08
Church 10
Theater and "movies" ... .09
Vacation 19
Other 17
Minimum yearly budget for a
self-supporting woman in Port-
land. {Oregon Social Survey, 1912,
p. 67.)
Room and board $300
Clothing 130
Laundry 25
Car fare 30
Doctor 15
Church and lodge 10
Recreation and vacation .... 25
Education and reading 10
Total $8.28
Total $545
i8a PRINCIPLES OF LABOR LEGISLATION
of physical necessaries to an entirely self-supporting woman.
The standard is in no way an extravagant one; it is "not a
wage so . . . women can live well, not enough to make life
a rich and welcome experience, but just enough to secure
existence amid drudgery in gray boarding-houses and cheap
restaurants." l
b. Wage Losses from Unemployment. In fixing standards
for minimum wages, the question of regularity of employment
is of great importance. Whether or not a worker can secure
steady employment in a given industry is the factor which
determines whether the "living wage" prescribed in an award
provides a "living income" throughout the year. Until re-
cently the problem has received but little attention in America, 2
many of the awards thus far made being sufficient only for
the needs of the current week. As no provision is made for
savings, a girl who receives the minimum wage must run into
debt or deny herself necessaries if she loses her position. Yet
many low-paid industries whose wage rates are affected by
minimum wage awards are notably irregular, as for example
candy-making and paper-box making. In Massachusetts, in
Oregon, and in Washington, however, wage losses from unem-
ployment have been given some attention by wage boards.
In Australia the time lost from industrial causes is often def-
initely computed in fixing wages. For instance, in setting the
minimum hourly rate for dock laborers, the necessary cost of
a week's living was divided by the average number of hours
of work obtained weekly. 3
c. Profits of the Business. An important question likely to
arise when wage standards are fixed is whether or not the
financial condition of the industry should be taken into ac-
count. Most often the problem comes up in connection with
the struggling business which claims it cannot survive if its
workers are paid a living wage. The issue here is the lowering
of the standard of wages in order to secure the continued
existence of such an industry. But such a concession enables
1 Walter Lippmann, "The Campaign against Sweating," New Republic,
March 27, 191 5, Supplement, p. 8.
2 See Irene Osgood Andrews, "The Relation of Irregular Employment
to the Living Wage for Women," in Fourth Report of the New York
Factory Investigating Commission, pp. 497-635.
3 New Statesman, June 6, 1914, p. 263.
THE MINIMUM WAGE 183
an industry to flourish without paying the whole cost of
maintenance of those whose time and services it uses. Its
workers must be partly supported by the earnings of others,
who are thus practically subsidizing the underpaying in-
dustry. Such a trade has well been called "parasitic," since
its existence depends on the bounty of others. It may be
that other members of the woman's family (and the better-
paying occupations in which they are employed) make up the
deficit in her income; it may be that society as a whole pays
the bill for the physical and moral deterioration of the workers
by its expenditures for hospitals, charities, and reformatories.
On the other hand, in Australia, at least, it has been urged
that a higher minimum should be set in an unusually pros-
perous industry. In that country a clear and consistent stand
has been taken on both these points. The living wage is
"sacrosanct." "If a man cannot maintain his enterprise
without cutting down the wages . . . which are essential for
[the employees'] living, it would be better that he should
abandon the enterprise." * But "the minimum wage must
be primarily based on the needs and the qualifications of the
class of workers concerned — not visually on the affluence of
the employer." 2 In Australia, then, the financial condition
of the business is not considered in fixing the minimum wage.
Most American statutes, through the stipulation that the
minimum wage shall cover the cost of living, take the same
stand. In Colorado, Massachusetts, and Nebraska, however,
"the financial condition of the business" is to be considered
side by side with the cost of living. In Massachusetts, in the
temporary award for the brush industry, this resulted in fixing
a minimum less than a living wage. The cost of living for
a self-supporting woman was found to be over $8 weekly.
But on account of the condition of the business the commission
was obliged to make the hourly rate for the first year so low
that women could earn only about $7 weekly unless they ob-
tained more than the usual amount of work. 3 In retail stores
also the wage board believed the necessary cost of living to be
1 Commonwealth Arbitration Reports, Vol. Ill, p. 31.
2 Ibid., Vol. VII, p. 72.
3 Second Annual Report of the Minimum Wage Commission of Massa-
chusetts, p. 11.
1 84 PRINCIPLES OF LABOR LEGISLATION
"as much as and probably somewhat above" the minimum
recommended, but held that "the schedule of wages adopted
is as high as the retail stores of the state will be able to pay
until industrial and business conditions shall have shown a
marked improvement." l A consideration of the prosperity
of the industry may thus retard the process of raising the wage
to the necessary minimum or even at times overthrow the
whole principle of the living wage.
d. Substandard Workers. Nearly all minimum wage laws
permit the fixing of special rates for young workers, for ap-
prentices, and for inexperienced workers. As a guide in fixing
these special rates, most American laws contain only the
provision that rates for children and apprentices shall be
"suitable." The usual practice is to name the rates for
young workers and for apprentices in the award along with
the regular minimum rate. For example, in Oregon the
minimum wage for women of over a year's experience was
set at $8.25 to $9.25 weekly, according to occupation and
locality; but young girls between sixteen and eighteen and
inexperienced women workers may be employed for $6 weekly
in any occupation anywhere in the state. In some cases where
these lower rates have been set, especially in trades requiring
little skill, there have been attempts to substitute young girls
and inexperienced workers for adults. 2 To overcome this
difficulty it has been found necessary to specify the length
of the period of apprenticeship and sometimes also the pro-
portion of apprentices allowed. Rates are frequently in-
creased as the period of apprenticeship progresses. Thus in
Massachusetts candy factories the minimum rate fixed for
beginners is $5 weekly; for those who have worked from a
year to a year and a half, $6.75; for those with less than two
years' experience, $7.75. The rate for "experienced" workers
is $8.75. In November, 19 15, this two-year period was the
longest apprenticeship established; the period in other states
and industries was but one year. In order to avoid any such
1 Massachusetts Minimum Wage Commission, Statement and Decree
Concerning the Wages of Women in Retail Stores in Massachusetts, 191 5,
p. 3.
2 See discussion by Theresa S. McMahon, American Economic Review,
March, 191 5, pp. 291-295.
THE MINIMUM WAGE 185
premium on the employment of children Minnesota established
the same minimum rates for all ages.
The employment of slow or infirm workers at lower rates
is generally permitted only by special license from the com-
mission. For further protection against the abuse of the
privilege, certain of the laws specify the proportion of such
workers in a single establishment for whom licenses may be
issued.
In Australia, as the scope of wage boards widens and the
fixing of a legal minimum becomes a common method of set-
ting wage standards instead of merely a remedy for sweating,
a variety of factors become more and more important in
determining such standards. The relative skill and training
required in different occupations is considered, the respon-
sibility exercised, the danger of illness or accident and the
probable perquisites or deductions. In America such ele-
ments as these have so far not been considered in determining
wage standards. Minimum wage standards in the United
States as yet do not go farther than an attempt to insure the
individual woman worker the bare necessaries of life.
4. Methods of Operation
There are two types of minimum wage law. One, the
"flat rate" law, prescribing the legal minimum in the statute
itself, is very rare, while the other type, under which a board
or commission after proper investigation fixes rates for one
industry or group of industries at a time, includes the vast
majority of these laws now in existence.
(/) Flat Rate Laws
Laws which directly fix the flat minimum rate are found
only in certain of the Australian states, in Arkansas, and in
Utah. In Australia, in addition to the system of wage
boards, laws sometimes establish very low flat-rate mini-
mums, frequently of not more than 2 or 3 shillings a week,
intended principally to protect children, learners, and ap-
186 PRINCIPLES OF LABOR LEGISLATION
prentices from being put to work without wages and dismissed
when they ask for pay. In America, only the Utah statute,
which requires a daily wage of 75 cents for females under
eighteen, 90 cents for inexperienced women, and $1.25 for
experienced women over that age, fixes a universal flat rate. 1
In Arkansas a flat rate of $1.25 a day for experienced workers
and $1 a day for females having less than six months' experi-
ence is fixed by the law, but the commission may, after in-
vestigation and public hearing, either raise or lower these
rates. 2 This method of fixing uniform flat rates prevents
the more careful adjustment for various industries and lo-
calities which is elsewhere undertaken by wage boards, and
the method is therefore held by most students of the problem
to be disadvantageous.
(2) Wage Board Laws
Representative of the second type of minimum wage laws,
those which fix rates for various industries through wage
boards, are the laws of Great Britain and of most Australian
and American states. In Great Britain 3 the board of trade
is authorized to appoint representative "trade boards" to
fix minimum rates in any industries in which wages are "un-
reasonably low" as compared with other trades and where
"other circumstances" make the appointment "expedient."
Trade boards may fix general minimum time rates or mini-
mum piece rates which may differ for different classes of
workers, for different districts, and for different processes.
District committees may be appointed to advise the trade
board in fixing rates for their respective localities.
When a trade board proposes to fix a certain rate, three
months' notice must be given, within which period objections
to the rate proposed may be raised. On the conclusion of
this period the rate comes into operation to a limited extent,
being obligatory for all firms engaged on public contracts, and
1 Utah, Laws 1913, C. 63. Enforcement is placed with the com-
missioner of lahor.
2 Arkansas, Laws 1915, No. 291,
3 9 Edw. 7, C. 22.
THE MINIMUM WAGE 187
for other firms in the absence of a written contract signed
by the worker providing for a lower rate. Six months later
the board of trade has power to make the rate obligatory
in all cases. Special exemptions can be procured under the
act for old or infirm workers.
The act provides for the appointment of inspectors for en-
forcing the payment of the minimum rates, and for fines for
employers not paying the rate. An employee who has not
received the legal minimum rate may recover the balance
due him.
In Great Britain the board of trade, which is the general
administrative body, has less power over the work of its trade
boards than have American administrative commissions over
their wage boards. A British trade board fixes a rate and
the board of trade decides only whether or not the rate shall
be made obligatory. An American wage board has power to
recommend rates which the commissions may declare effective,
or modify, or reject altogether. In some states the com-
mission may fix minimum rates without the intervention of a
wage board. So far the American method is rather a regula-
tion by commissions than by wage boards pure and simple.
These commissions — called minimum wage commissions,
industrial welfare commissions, or industrial commissions —
arc usually unsalaried and composed of from three to five
persons, one of whom must usually be a woman, appointed by
the governor. Their jurisdiction extends over females and
male minors up to eighteen or twenty-one, and over all in-
dustries, except in Colorado and Arkansas where specified
lists exist. Arkansas, also, is the only state specifically exempt-
ing certain industries, those excluded being cotton factories,
fruit and vegetable canning, and establishments employing
fewer than four women at the same sort of work. The com-
missions are authorized to subpoena witnesses, administer
oaths, and examine books and papers, and employers are re-
quired to keep records of the names, addresses, and wages
of women and minor employees. If the commission learns
by investigation — which is sometimes compulsory on petition
— that wages are insufficient to maintain the specified stand-
ard of living, it must proceed either to determine a minimum
rate or to establish a subordinate wage board for the industry.
iSS PRINCIPLES OF LABOR LEGISLATION
The subordinate board must be representative of employers,
employees, and the " public." Unlike the foreign acts, which
provide for the nomination of representatives by employers
and employees, American laws generally leave the method of
selection to be determined by the commission. The com-
mission may, of course, ask both parties to elect, and this
democratic method is required in the Minnesota law "so far
as practicable." While in theory it has been felt desirable
that in the interests of democracy employers and employees
should elect their representatives to the wage boards, in prac-
tice it has proved exceedingly difficult to depend entirely
upon election for securing proper representatives for un-
organized workers. Their lack of acquaintance and the fear
of losing their places on account of their service on the boards
make them reluctant to serve, and timid in conference. For
the present it has therefore been found more effective to leave
the enforcing authority free to select representatives from
lists submitted by the employees or from those formerly in
the trade as well as through election. Employers, also, have
often been unwilling to elect their representatives. 1
The subordinate wage board may use the investigations of
the commission in determining wage rates or may make
further investigations of its own. It must make a report^ of
its work with recommendations to the commission, which
may accept the recommendations in whole or in part or may
refer them back to the board for further consideration or may
convene a new board. When the report of the wage board
has been accepted by the commission a public hearing must
be held; if after public consideration no change is deemed
necessary in the recommendations they are promulgated as
orders which become effective in thirty or sixty days. Nearly
all the laws grant rehearings on petition of either side. Copies
of orders issued by a commission must in most cases be for-
warded to the employer concerned, who is required to post
them in a conspicuous place. Minimum wage rates may apply
either to time or to piece work, and in Kansas, Minnesota, and
1 In Minnesota the commission was obliged to choose representatives
of both employers and employees for the wage boards, and to select
several of the latter from outsiders. See John A. Ryan, "The Task ot
Minimum Wage Boards in Minnesota," The Survey, November 14,
1914, p. 171.
THE MINIMUM WAGE 189
Oregon orders may be issued for a given locality or area. In
Wisconsin the industrial commission has power to classify
industries for the purpose of adjusting wage rates.
The commissions are authorized to make special exemptions
for women, and in Wisconsin for minors also, who are physi-
cally handicapped. Special licenses may be issued to learn-
ers and apprentices in all states except California and Colo-
rado, and in Oregon and Washington the life of these licenses
may be limited. In Kansas, minors may be employed at
lower rates than adults only by special license.
The interests of employers and employees are usually
further safeguarded by provisions for a court appeal from
the commissions' rulings, the procedure and the subjects for
court review being carefully specified. In most of the states
rulings may be set aside if unreasonable or unlawful; in
Oregon and Washington only questions of law may be re-
viewed, while in Massachusetts and Nebraska an employer
may have an award set aside in his particular case by filing
a declaration under oath, in Nebraska that compliance would
"endanger the prosperity of his business," but in Massa-
chusetts that it would prevent a "reasonable profit." In
most instances, the findings of fact by the commissions are
held prima facie reasonable, and any new evidence must be
referred back to them for consideration.
The commissions, except in Colorado and Arkansas, are
authorized to enforce their own rulings. Most of the states
provide fines of $10 to $100 for employers who fail to pay
the minimum wage or who violate any sections of the act or
any commission ruling. It has also been found necessary to
penalize by a fine of $25 to $1,000 employers who discrimi-
nate against employees because they have testified in wage
investigations or served on wage boards. In Massachusetts
and Nebraska, however, the commission must rely on the
compulsion of publicity to enforce its wage rulings. In these
two states employers cannot be compelled to pay the mini-
mum; and the mere publication in a given number of news-
papers throughout the state of the names of those paying
less than indicated as a minimum is mandatory in Nebraska
but only optional in Massachusetts. Publishers in either
state refusing to print the names of such employers are liable
too PRINCIPLES OF LABOR LEGISLATION
to a fine of $100. In all other states, employees who have
not been paid the legal minimum rate may recover the un-
paid balance through a civil suit.
In America, then, the establishment of minimum wage
rates is a long and fairly complicated process. First there is
the investigation by the commission, then generally further
investigations and deliberation by a representative wage
board, next public hearings, and finally a possible court re-
view before the minimum rate goes into effect.
5. Results
It is still alleged in some quarters that wages are fixed by
economic laws, any legislative interference with which can
result only in disaster. At present all that can be said is
that experience covering twenty years in Victoria and shorter
periods elsewhere has failed to confirm these dire predictions.
(7) Changes in Wage Rates
Perhaps the first question to be considered is whether the
laws have succeeded in raising wage rates. Nearly all the
evidence so far collected goes to show that they have. Some
instances of failure are known. In Victoria, for instance, it
has proved difficult to maintain the legal rate in the furniture
trade among the Chinese, where neither employees nor em-
ployers welcomed the establishment of the wage board, 1
and in England the custom of distributing work through
middlemen, and the depression of the industry, led to evasions
in the lace-finishing trade. 2 Similar evasions have been sus-
pected with regard to homeworkers in the British tailoring
industry. 3 But on the whole, in the different countries and
in the various industries, the awards of the wage boards have
been found to be effective. In Victoria, official reports show,
1 M. B. Hammond, "Where Life Is More Than Meat," The Survey,
February 6, 191 5, p. 498.
2 Sixth Annual Report of the Anti-Sweating League, p. 6.
3 See R. H. Tawney, Minimum Rates in the Tailoring Industry, 1915,
pp. 202-210.
THE MINIMUM WAGE 191
average wage rates increased 7.6 per cent, in thirteen board
trades in a period of about five years before awards were
made, but 16.5 per cent, in these and in six additional board
trades during a similar period after awards were made. In
six trades a period of decline in wage rates became a period
of advance after the making of awards. During the whole
time wage-rate advances in twelve non-board trades amounted
to 1 1.6 per cent. 1 In the English chain-making industry 56.7
per cent, of the male mastermen and 61.3 per cent, of the
journeymen earned less than 15 shillings a week in 191 1. In
1 9 13, after the award by the trade board, only 1.3 per cent, of
the mastermen and 0.7 per cent, of the journeymen earned
so little. 2 In the branches of the English tailoring trade cov-
ered by the trade board, it is estimated that about one-third
of the women and between one-fourth and one-fifth of the men
have received increases in their earnings. 3 In Washington
the industrial welfare commission states that in twenty-four
stores, before the minimum wage award, 1,758 women re-
ceived less than $10 weekly, while after the award only 561
women received less than $10 weekly, the number of workers
remaining approximately the same. 4 A report of the United
States Bureau of Labor Statistics on the effect of minimum
wage determinations in Oregon retail stores indicated that
average weekly earnings of women were 8.6 per cent, higher
in the face of a business depression which caused an 8 per cent,
decrease in the sales of these stores. 5 A year after its decree in
the brush industry, the Massachusetts Minimum Wage Com-
mission found that only five, or 1 per cent, of the employees
whose wage records it took, were receiving less than the legal
minimum. 6
1 Ernest Aves, Report to the Secretary of State for the Home Department
on the Wages Boards and Industrial Conciliation and Arbitration Acts
of Australia and New Zealand, 1908, p. 30.
2 R. H. Tawney, Minimum Rates in the Chain - Making Industry,
p. 83.
3 R. H. Tawney, Minimum Rates in the Tailoring Industry, p. 95.
4 First Biennial Report of the Industrial Welfare Commission, State of
Washington, 191 5, pp. 13, 79.
6 United States Bureau of Labor Statistics, Bulletin No. 176, July,
I9I5.P- 33-
6 Massachusetts Minimum Wage Commission, The Effect of the Mint-
mum Wage Decree in the Brush Industry in Massachusetts, 1915, p. 5.
i 9 2 PRINCIPLES OF LABOR LEGISLATION
(2) Changes in Wages above the Minimum
It is frequently declared that legal minimum wage rates tend
to become maximum wage rales, thus injuring those whom
they are expressly designed to benefit. This does not, how-
ever, appear to be generally the case. Both the chief factory
inspector at Melbourne, Victoria, and the secretary of the
British Board of Trade declare that as far as their experience
goes current wages are not held down to the minimum set
by law. 1 The former official even declares that "the average
wage in a trade is invariably higher than the minimum
wage." In one Victorian industry, clothing, after an award
had been in force for six years, wages averaged nearly 20 per
cent, higher than the legal minimum. 2 The establishing of
minimum rates in the clothing trades in Great Britain led
in several districts to trade union action which fixed standard
rates considerably above the legal minimum. 3 In Portland,
Ore., also, the United States Bureau of Labor Statistics
found that the proportion of women getting more than the
legal minimum increased after the law went into effect. 4
(j) Effect on Unemployment
It is further argued against minimum wage laws that they
force workers out of industry, either because the workers are
considered by the employer unprofitable at the legal rate, or
because they can be replaced by apprentices or by specially
licensed workers at a lower rate, or perhaps because they have
been active on the wage boards. While all three abuses have
probably taken place at various times, they are not universal
and are not inherent in the laws. On the first point, the
testimony of the chief factory inspector at Melbourne, pre-
viously quoted, is that "this dislocation [of the less speedy
workers] is not serious, and that as a rule things regulate
1 Irene Osgood Andrews, Minimum Wage Legislation, pp. 62-63, 77~7%-
2 Henry R. Seager, "Theory of the Minimum Wage," American Labor
Legislation Review, February, 1913, p. 89.
3 R. H. Tawney, Minimum Rates in the Tailoring Industry, p. 96.
4 United States Bureau of Labor Statistics, Bulletin No. 176, p. 33.
THE MINIMUM WAGE 193
themselves fairly satisfactorily." 1 The Oregon investigation
made by the United States Bureau of Labor Statistics showed
that experienced women workers were neither thrown out of
employment by the operation of the law nor supplanted by
men. 2 In sixteen brush factories in Massachusetts the total
number of women increased from 332 to 334 between 19 13
when the first wage investigation was made and 191 5, the year
following the minimum wage decree; the number of men de-
creased from 472 to 41 7. 3 The system of issuing special per-
mits for less efficient workers to be employed at lower rates,
which is provided for by most of the statutes, is undoubtedly
helpful in making the adjustment. On the other hand, the
displacement of adult skilled workers by apprentices or by
defective workers at a lower rate can be checked by limiting
the percentage of employees in any establishment who may
work at such lower rates, as is already done in Minnesota
with regard to defectives. The matter of discrimination
against workers who serve on wage boards is more difficult
to handle, although most American laws establish penalties
for it. This discrimination is a severe handicap to securing
a proper representation of the employees on wage boards.
However, this is no serious argument against minimum wage
legislation, as the same sort of discrimination often takes
place against the leaders of the workers in any concerted move-
ment for higher wages.
(4) Effect on Industry
From the side of employers it is frequently declared that
minimum wage laws will put them under such a handicap
that they will be forced to move to freer territory or be
driven out of industry altogether. Neither seems to have
taken place to any appreciable extent. The officials of the
Victorian Chamber of Manufactures and of the Victorian
Employers' Association, the two bodies which originally led
the opposition to the wage-board system, now declare that
1 Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 63.
2 United States Bureau of Labor Statistics, Bulletin No. 176, pp. 8, 9.
8 Massachusetts Minimum Wage Commission, Bulletin No. 7, 1915, p. II.
13
i 9 4 PRINCIPLES OF LABOR LEGISLATION
they have no wish to see the system abandoned. 1 In 1903
and" 1004, eleven of the thirty-eight special boards then in oper-
ation in that country were established upon the application
of employers. 2 Only a single instance is recorded of a plant
Leaving the state because of the minimum wage law. 3 In
Great Britain, also, in the industries having wage boards,
the "employers have not been mined or even injured in their
profits,"' 1 and the board of trade reports that it is "not
aware of any tendency of manufacturers to transfer their
business to foreign countries, or in cases where lower wage
rates have been fixed for Ireland than for Great Britain, to
transfer their business from Great Britain to Ireland." 5 The
actual cost of the necessary changes is, after all, not burden-
some. In Oregon retail stores the increased labor cost was
found to be only three mills on each dollar of sales. 6 In the
Massachusetts brush industry both the amount of capital
invested and the value of the product increased in the year
following the decree. 7
(5) Effect on Trade Unionism
Certain trade union officials, especially in the United States,
have feared that minimum wage legislation would hinder the
trade union movement by enabling the workers to secure
wage gains without the aid of organization. Their fears have
not proved true. Instead, the formation of wage boards has
1 M. B. Hammond, American Labor Legislation Review, February, 191 3,
P- IJ 3-
2 Victor S. Clark, The Labor Movement in Australasia, 1907, p. 147.
3 "A brush manufacturer from England, who had recently come to
Victoria to establish his business, was so enraged at the idea that the
wages he was to pay were to be regulated by law that he moved across
Bass Strait to Tasmania. What has happened to him since Tasmania
has adopted the same svstem of wage regulation, I do not know." — M. B.
Hammond, "The Minimum Wage in Great Britain and Australia,
Annals of the American Academy of Political and Social Science, July,
4 John A. Hobson, "The State and the Minimum Wage in England,"
The Survey, February 6, 191 5, p. 503.
6 Quoted bv Irene Osgood Andrews, Minimum Wage Legislation, p. 78.
6 United States Bureau of Labor Statistics, Bulletin No. 176, p. 10.
7 Massachusetts Minimum Wage Commission, Bulletin No. 7, p. 14-
THE MINIMUM WAGE 195
often acted as a stimulus to the organization of unions, through
which the workers have in some cases been enabled to make
further gains above the legal minimum rate. This is the testi-
mony of Australian observers and of the British Board of
Trade, and it has been stated that in the brief experience of
Massachusetts "the conspicuous feature is the impetus given
to workers in the candy and brush trades to form organizations
where none had been before." l
(6) Effect on Efficiency
A final point to consider is whether guaranteeing to every
worker a legal minimum wage reduces incentive and output.
The preponderance of evidence is that it does not, but that
it even has the opposite effect, due in part to the employer's
insistence on greater returns for increased wages, and in part
to the workers' spontaneous response to the improved rate of
remuneration. 2 Some employers in Australia feel that out-
put has been reduced in recent years, but they ascribe the de-
cline to trade union policy rather than to wage awards, while
the employees deny the charge altogether. 3 In England and
in the United States it is believed that efficiency has gone up
rather than down. Thus the British Board of Trade declares
that "there are indications that in many cases the efficiency
of the workers has been increased," 4 and the Industrial Wel-
fare Commission of Washington concludes that "the whole
standard of efficiency and discipline has been raised." 5 In
'Florence Kelley, "Status of [Minimum Wage] Legislation in the
United States," The Survey, February 6, 1915, p. 4»9- , ,
2 '"Output per head has increased,' said another [firm]; as a general
rule the girls work better if they are paid more.' Indeed, the psychologi-
cal effect of relatively high and low rates on the workers would appear
to be exactly the reverse of that often ascribed to them. So far from
low rates 'making them work,' they often produce listlessness and de-
spair. So far from high rates 'encouraging slackness,' they stimulate the
workers to cam as much as possible while at work upon them." (R. H.
Tawnev, Minimum Rates in the Tailoring Industry, p. 133.)
»M. B. Hammond, "Where Life Is More Than Meat," The Survey,
February 6, 191 5, p. 502. .
4 Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 78.
5 First Biennial Report of the Industrial Welfare Commission, State of
Washington, p. 13.
i 9 6 PRINCIPLES OF LABOR LEGISLATION
fact, it may be said that the beneficial results of minimum
wage legislation have been largely due to the transfer of em-
phasis from competition for low wages to efficiency on the
part of both employer and employee.
Among the better-established results of minimum wage
legislation, therefore, may be mentioned (i) that it has raised
wages; (2) that minimum wage rates do not in general tend
to become maximum rates; (3) that it does not necessarily
force workers out of industry; (4) that it does not unduly
handicap employers; (5) that it does not undermine trade
union organization; and (6) that it docs not decrease efficiency.
6. Constitutionality
The constitutionality of minimum wage legislation involves
a new application of the principle of the police power of the
state. While it is an accepted constitutional principle that
the employee's right freely to contract for the disposition of
his own labor cannot be limited except by "due process of
law," yet the police power of the state can restrict the free-
dom of contract for the protection or betterment of the pub-
lic health, morals, peace and welfare. Enactments of the
legislature which reasonably tend to that end have been
commonly sustained by the courts. Are minimum wage laws
a legitimate extension of this power?
The courts have already sanctioned under the police power
principle state interference with the wage bargain by limiting
working hours for all classes of employees, and by regulating
certain conditions of the wage payment, such as the frequency
of payment, store orders, or payment in cash. 1 Justification
1 As early as 1859, in a wage exemption case, the court said: "The idea
underlying the ultimately developed sentiment of the people upon that
subject ... is that the citizen is an essential elementary constituent of
the state; that to preserve the state the citizen must be protected; that
to live he must have the means of living; to act and to be a citizen he
must be free to act and to have somewhat wherewith to act, and thus
to be competent to the performance of his high functions as such. Hence
it would seem, as no doubt it was, a matter of the gravest state policy
to invest the citizen with, and to secure to him, those essential perquisites,
without which the state could not demand of him at all times his instant
service and devoted allegiance." Maxwell v. Reed, 7 Wis. 594 (1859).
THE MINIMUM WAGE 197
for state interference to fix minimum wage rates has been
sought on the same grounds on which other protective legis-
lation has been upheld.
In public employment, indeed, it has been frequently de-
cided that the legislature may rightfully regulate wage rates
as well as other conditions of labor both on direct work and
on work done by contractors. On work done by contract
the wage regulation has commonly taken the form of stipu-
lating that the current rate of wages shall be paid, and the
constitutionality of this form of regulation is now well estab-
lished. 1 In 19 1 4, moreover, the Washington State Supreme
Court sustained a more drastic wage regulation for public
works. Spokane had fixed by ordinance a minimum wage
rate of $2.75 a day for common labor on all public improve-
ments. Though this rate was higher than the current rate
for similar work, the court upheld the ordinance even when
applied to work done by contractors, as neither unreasonable
nor in violation of the public policy of the state. 2
These cases, however, are based on the proprietary power
of government, and not on the police power. The legality
of state regulation of wage rates in private employments is
less certain. The only minimum wage case in private em-
ployments which has yet reached a decision in a state supreme
court is that involving the Oregon minimum wage law of
19 13. In this case 3 the court took judicial notice of the
"common belief" that many women are employed at exces-
sively low wages and that health, morals, and the public wel-
fare are injured thereby. Accordingly, the law was held con-
stitutional on the same grounds on which laws restricting the
hours of labor for women have been sustained. The court
held that "Every argument put forward to sustain the maxi-
mum hours law or upon which it was established applies
equally in favor of the constitutionality of the minimum wage
law as also within the police power of the state and as a
regulation tending to guard the public morals and the public
health."
In the lower court this point was made even more forcibly
1 See Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124 (1903).
2 Malette v. City of Spokane, 77 Wash. 205, 137 Pae. 496 (1913).
3 Stettler v. O'H'ara, 69 Ore. 519, 139 Pac. 743 (1914)-
t 9 8 PRINCIPLES OF LABOR LEGISLATION
when the judge said that the two classes of regulation were
"inseparably linked together. . . . The purpose of the act in
limiting the maximum hours of labor and the minimum wage
for women, is evidently the same, vis., to preserve and con-
serve i heir health and morals. Is the preservation and con-
servation of the health and morals of women workers a
public concern, or is it merely a matter that concerns the
individuals employed? If the enactment is for the public
health, peace, morality, and general welfare, it falls within
the police power of the state to regulate. The complexity
and intimate relations of our present-day civilization are such
that there is a necessary dependency of the public welfare
upon the health, morality, and vigor of our women and
children, when considered from physiological, sociological,
and moral standpoints. The women are and are to be the
mothers of our future citizens, and the children of to-day
will be the citizens of to-morrow, and when any considerable
number of them are employed at wages which reduce them
to beggary or deny a sufficient compensation to preserve
health, the insufficiency of such wages becomes a powerful
factor in determining the social, moral, and physical status of
the body politic and is a matter of public concern." 1
In addition to the health argument the argument justifying
state interference on account of inequality of bargaining power
between the parties concerned in the wage bargain was em-
phasized by the Oregon Supreme Court. "The worker in
such a case has no voice in fixing the hours or wages or choice
to refuse it, but must accept it or fare worse." Therefore the
law could be sustained on the same grounds as the women's
ten-hour law had been as "within the police power of the
state, and as a regulation tending to guard the public morals
and the public health."
The method of establishing minimum wages has also given
rise to constitutional uncertainty. In enacting minimum
wage legislation the majority of the legislatures recognized
the need of discovering the facts concerning wages and living
conditions before wage rates could be reasonably and scientifi-
callv adjusted. They therefore established general standards
1 Opinion of Judge T. J. Cleeton in Stettler v. O'Hara, Oregon Circuit
Court, County of Multnomah, November 7, 1913.
THE MINIMUM WAGE 199
for living wages and delegated to commissions and boards
the work of ascertaining the facts, and, except on questions
of law, made the findings of the commission conclusive.
This procedure was also sustained by the Oregon Supreme
Court when it held that the law does not "delegate legisla-
tive power to the commission. It is authorized only to ascer-
tain facts that will determine the localities, businesses, hours,
and wages to which the law shall apply." Nor is the fact that
the findings of the commission arc made conclusive on ques-
tions of fact denial of due process of law. " Reasonable notice
and a fair opportunity to be heard before some tribunal be-
fore it decides the issues are the essentials of due process of
law," and these are provided, the commission itself being an
adequate tribunal "proper to deal with the subject in hand." l
In an opinion upholding the constitutionality of the mini-
mum wage law of Minnesota, the state attorney-general
pointed out that these powers are nearly equivalent to those
given state railroad commissions, which are commonly held
legal. For instance, the power to fix different minimum rates
for different localities is paralleled by the power of railroads
to fix different rates for different roads and for different
classes of traffic. 2
In recent years the courts have shown a marked tendency
to recognize the fact that new conditions of life and labor
require the new application of existing principles. While
lower courts in Minnesota and Arkansas have declared mini-
mum wage legislation unconstitutional, it is on the Oregon
case that the future of this legislation in the United States
probably hinges, for the favorable decision of the Oregon
Supreme Court, returned March 17, 19 14, was immediately
appealed to the United States Supreme Court, where it was
still pending in the autumn of 19 15.
1 See also Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct.
48 (1913). The Oregon court pointed out that in the commission regu-
lation held unconstitutional in the Minnesota rate cases there was no
provision for hearings by parties affected, and that therefore due process
of law was not provided for, "which is the principal ground upon which
the state court was reversed" by the United States Supreme Court.
2 Opinion of state attorney -general on constitutionality of Minnesota
minimum wage law, p. 8. See also Minneapolis, St. Paul & Sault Ste.
Marie R. R. Co. v. R. R. Commission of Wisconsin, 136 Wis. 146, 116
N. W. 90S (1908).
CHAPTER V
HOURS OF LABOR
In spite of the general tendency in this country toward a
shorter workday, the old ideal of "eight hours for work, eight
hours for rest, eight hours for what you will" has not yet
been realized by the majority of American wage-earners.
Out of the 6,615,046 wage-earners enumerated in 1909 by the
Census of Manufactures, only 7.9 per cent, were employed in
establishments where the eight-hour day prevailed. 1 "Pre-
vailing hours" for three-quarters of them were from fifty-four
to sixty weekly. But no fewer than 344,011, or 5.2 per cent,
of the whole number, worked where prevailing hours were
between sixty and seventy-two weekly; 116,083 worked in
establishments where the seventy-two-hour week prevailed,
and 114,118 where the prevailing hours were more than
seventy-two. Out of the eighty-six principal manufacturing
industries employing more than 10,000 wage-earners in 1909,
twenty employed over 10 per cent, of their workers more
than sixty hours a week. Among those exacting more than
seventy-two hours weekly from several thousand employees
were beet-sugar, cement, chemical, glucose, and sugar and
molasses factories, coke-works, gas-plants, the manufacture
of ice and lime, petroleum refineries, blast-furnaces, and
rolling-mills. Among railroad employees, also, continuous
service for long periods is very common. Records of the
Interstate Commerce Commission show that during the year
ending June 30, 1913, 261,332 railroad men were reported as
on duty for periods exceeding the legal limit of sixteen hours,
and that over 33,000 of them worked more than twenty-one
1 See Thirteenth Census of the United States, Vol. VIII, "Manufactures,"
PP- 306-313-
HOURS OF LABOR 201
hours continuously. 1 Hours of labor on street railways also
extend over excessive periods through the swing run system
which employs a man a few hours during the morning rush
and then lays him off till the evening rush. During the in-
terim he must be on call and usually cannot go home, so that
his actual working day extends from the time he starts work
in the morning till he is through with his last trip at night.
Then, too, many employees are working seven days a week.
Investigations show that much of the present-day continuous
operation of industries involves seven -day labor. For
instance, in Minnesota in 1909, 98,558 men, or approximately
14 per cent, of the gainfully employed males in that state,
were working every day in the week. 2 In New York in
19 10, out of 179,000 union members in a number of specified
industries, almost 20 per cent, were engaged in seven-day
labor. 3
Worst of all, many establishments which operate continu-
ously, such as iron and steel plants, paper-mills, and glass and
chemical works, combine the twelve-hour day with the seven-
day week, and in not a few cases require their employees to
alternate weekly or fortnightly between day and night shifts,
working twenty-four hours without rest when the change is
made. So glaring are the evils of this condition that under
the auspices of the International Association for Labor Legis-
lation a special conference on the subject was held in London
in June, 19 12, and resolutions were adopted favoring inter-
national action to secure eight-hour shifts in continuous in-
dustries. 4
Under modern industrial conditions such excessive hours
of work break down health. Even with short hours the strain
of modern industry, with its speed, its piece-work, its division
of labor, involving the monotonous repetition of the same
process, sometimes even of the same movement, is a heavy
tax on the worker. But with the eleven- or twelve-hour day
'Interstate Commerce Commission, A Statistical Analysis of Carriers'
Monthly Hours of Service Reports, 1913, p. 10.
2 Minnesota Bureau of Labor, Twelfth Biennial Report, pp. 104-119.
3 New York State Department of Labor, Bulletin No. 45, Sept., 1910,
pp. 450, 451.
4 Report of Special Commission on Hours of Labor in Continuous In-
dustries, 1912, pp. 16, 17.
202 PRINCIPLES OF LABOR LEGISLATION
or the seven-day week, a man must go back to his job before
he has had sufficient rest to recover from the excessive fatigue
of the long work period, and a progressive decline in health
results. "In my judgment," said a former official of a large
steel company, "a large proportion of the steel- workers, who
from early manhood work twelve hours a day, are old men at
forty." 1
Though it is the health dangers of long hours which are
most often emphasized, the lack of leisure for family life, for
recreation, for all the requirements of citizenship, is no less
an evil. It should not be forgotten that the time spent in
going and coming from work and the dinner hour often add
two hours to the length of the workday proper, and that an
eleven-hour day is likely to mean thirteen hours away from
home. Said a Pittsburgh steel-worker of the results of such
a workday, " Home is where I eat and sleep." 2 The ultimate
effects of such hours of labor were thus summed up by the
Supreme Court of Georgia in upholding a Sunday rest
law: "Without specific leisure the process of forming char-
acter can only be begun; it can never advance or be com-
pleted; people would be merely machines of labor — nothing
more." 3
Aside from their weaker physique, the "long day " is especial-
ly onerous for women workers because of the double burden
of domestic duties and wage work which many of them carry.
Ordinarily men can rest when their day's toil is over, but
there are few working-girls who do not have at least mending
and laundering to do in the evenings, and many married
women must take the entire care of their homes and children
before and after work.
Moreover, long hours do not necessarily make for
the greatest economy and efficiency in production. It is
sometimes argued that if hours are reduced output will decline
proportionately. This might be true if human beings were
mere machines and not living creatures who grow tired. But
as a matter of fact the law of diminishing returns operates
1 William B. Dickson, former vice - pres dent, United States Steel
Corporation, The Survey, January 3, 191 4- P 37 6 -
2 Quoted by John A. Fitch, "The Steel Industry and the Labor Prob-
lem," The Survey, March 6, 1909, p. 1091.
3 Hennington v. State, 90 Georgia 396, 17 S. E. 1009 (1892).
HOURS OF LABOR 203
nowhere more strikingly than in regard to hours of labor.
Studies of output before and after a shortening of hours show
that where the human element enters into production hour
reductions by no means necessarily imply a decrease in out-
put. For instance, the federal Industrial Commission of 1898
made special comparisons between the output of bituminous
coal mines before and after the introduction of the eight-hour
day, and found that output even increased under the shorter
workday. 1 In Illinois in 1895 and 1896 under the ten-hour
system, the average daily output for each mine employee was
2.53 to 3 tons; in 1898, 1899, and 1900 with an eight-hour day
the average output was 3.1 1 to 3.21 tons, though the propor-
tion of coal mined by machinery was not increased.
In the New England textile industry, also, it was found
that the shorter workday consequent upon the enforcement
of the ten-hour law improved either the quality or quantity
of the output, or both. 2 Similar evidence has been gathered
for a number of other industries, showing the beneficial effect
of a full day's rest each week. 3 This increase of output
through increased efficiency probably largely explains why
wages have seldom fallen, but have frequently even risen after
a reduction of hours, and why the industries in which wages
are highest are often those in which hours are shortest. Prac-
tical experience, therefore, gives weight to the old eight-hour
league slogan:
Whether you work by the piece or the day,
Decreasing the hours increases the pay.
Shorter hours likewise tend to steady employment. When
no restrictions are placed on hours of work in a seasonal in-
dustry, the tendency is to concentrate the work in a brief
busy season with long hours of overtime. Hour regulation,
except in the case of perishable products and those subject
to changes in fashion, forces a more even distribution of the
work over a longer period. When the woman's eight-hour law
1 "Final Report of the Industrial Commission, 1902, Vol. XIX, p. 770.
2 See Reports of the Chief of the Massachusetts district Police, for the
year ending December 31, 1883, pp. 17, 18; for the year ending De-
cember 31, 1886, pp. 71, 72.
3 See American Labor Legislation Review, December, 1912, pp. 524-527.
oo 4 PRINCIPLES OF LABOR LEGISLATION
was in force in Illinois factory inspectors noted "a greater
uniformity of work and rest" as one of its results. 1 In cer-
tain occupations, also, where the time of attendance and not
the speed of the worker is the essential factor (ticket-chopping
and streetcar work, for example), the reduction of excessive
hours would increase to a certain extent the demand for labor.
Aside from voluntary reductions by individual employers
there are two methods by which the desirable goal of shorter
daily and weekly hours has been reached, by labor organiza-
tion and by labor legislation. Many workers, prominent
among whom in this country are printers, granite-cutters,
cigar-makers, and building-trades workmen, have gained the
nine- or eight-hour day by organization. But the present
prevalence of longer hours of labor in the United States shows
that the unions alone have not been everywhere adequate
to the task. It has so far proved difficult to form stable
labor organizations among women and among some classes
of unskilled men workers. In some cases, too, as in the Pitts-
burgh steel plants, large scale business has used its power to
stamp out labor organization. After a century of effort
probably four-fifths of those employed in trade, transportation,
and manufacturing are still unorganized, and in recent years
there has been a growing demand for the protection of un-
organized workers by legislation.
i. Maximum Daily Hours
(/) Children
The first legislative regulation of the hours of labor in this
country applied to children. In 1842 a petition was presented
to the Massachusetts legislature by certain citizens of Fall
River who pointed out that the existing hours of labor must
be permanently injurious to the health of children and detri-
mental to their education, and prayed that prohibitory legis-
lation be enacted. The agitation resulted in the passage
during the same year of a ten-hour law for children under
1 Report of the Illinois Factory Inspectors, 1893, p. 18.
HOURS OF LABOR 205
twelve years of age in manufacturing establishments. 1 In the
same year, also, Connecticut enacted a ten-hour law for chil-
dren under fourteen in cotton and woolen mills. 2
By the beginning of the Civil War laws limiting the hours
of children in manufacturing establishments to ten a day
had been enacted in the five additional states of New Hamp-
shire, 3 Maine, 4 Pennsylvania, 5 New Jersey, 6 and Ohio. 7 The
Connecticut statute of 1842 was, however, superseded thirteen
years after passage by a new law which set back the limit to
eleven hours, 8 followed within a year by an amendment which
still further lowered the standard to twelve hours a day. 9
Like the first Connecticut law, the early Pennsylvania laws
applied only to textile mills, but in the other states the acts
covered manufacturing in general. The ages of the children
affected varied from twelve in Massachusetts to twenty-one
in New Jersey and Pennsylvania. In addition to the states
already mentioned, Rhode Island enacted in 1853 an eleven-
hour law for children from twelve to fifteen. 10
These early laws were, however, to a great extent unenforced
and even unenforceable. The still frequent provision, for
example, that only violations committed "knowingly" are
punishable, which, to quote a government report, has " put
a premium on ignorance and . . . served to balk the intent of
so much labor legislation," u originated in the Massachusetts
law of 1842 and was copied in New Jersey and Rhode Island.
In New Hampshire children under fifteen could work longer
than the statutory ten hours if provided with the "written
consent of the parent or guardian." 12 In New Jersey, and in
1 Massachusetts, Laws 1842, C. 60.
2 Connecticut, Laws 1842, C. 28.
3 New Hampshire, Laws 1846, C. 318. * Maine, Laws 1848, C. 83.
6 Pennsylvania, Laws 1848, No. 227; Laws 1849, No. 415; Laws 1855,
No. 501. 6 New Jersey, Laws 1851, p. 321.
7 Ohio, Laws 1852, p. 187. 8 Connecticut, Laws 1855, C. 45.
9 Connecticut, Laws 1856, C. 39. 10 Rhode Island, Laws 1853, p. 24's.
11 Report on the Condition of Woman and Child Wage-Earners in the
United States, Senate Document No. 645, 61 st Congress, 2nd Session,
1910, Vol. VI, "The Beginnings of Child Labor Legislation in Certain
States," Elizabeth Lewis Otey, p. 78.
12 Of this law Horace Greeley said: "Why should 'the consent of the (?)
parent or guardian of such minor' 'be allowed to overrule the demands
of Justice, Humanity, and the Public weal'? . . . We believe nothing less
than a peremptory prohibition of the employment of Minors for more
206 PRINCIPLES OF LABOR LEGISLATION
Pennsylvania under the earliest laws, a child could not be
"holden or required" to work more than ten hours a day,
but if the child worked longer the employer, in order to escape
all responsibility, needed only to declare that the extra labor
was not required, but voluntary. Ohio even went so far as to
legitimatize this subtle distinction by declaring that minors
under eighteen might not be "compelled," but that minors
under fourteen might not be "permitted," to work more than
ten hours. Only in two states were any provisions made for
enforcement: in Connecticut constables and grand jurors
were to inquire after violations, and in Pennsylvania con-
stables could take action — but only after complaint.
It is interesting to note that the early hour legislation for
children resulted almost altogether from interest in education
and from the efforts of adult male workers to secure such
regulations as a first step toward obtaining similar laws for
themselves. Sometimes, also, the men workers undoubtedly
believed that restrictions on the hours of women and children
would result in decreased employment of these classes of wage-
earners, with consequent advantages to themselves. It was
not until later that the main emphasis came to be put on the
necessity of shortening children's hours to protect the health
of the children.
The greatest progress in legislation regarding the hours of
labor for children has been made in the last decade. Begin-
ning with Illinois in 1903, the eight-hour standard for chil-
dren under sixteen has been established in the majority of
important industrial states. 1 Eighteen states and the District
of Columbia allow no exemptions from their eight-hour laws
for children; but in Washington the law applies only to girls;
in Colorado children may be exempted by the judge of the
juvenile court; and in Indiana children may be legally em-
ployed nine hours a day on affidavit of the parent, giving them
than 10 hours per day, without regard to the consent of parents or
guardians, will effect much, if anything. Still, we are willing to see
a trial made even of this milk and water enactment." (New York
Tribune, August II, 1847.)
1 This standard existed in 1915 in twenty-three jurisdictions, namely:
Arizona, Arkansas, California, Colorado, District of Columbia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missis-
sippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota,
Ohio, Oklahoma, Washington, Wisconsin.
HOURS OF LABOR 207
permission. Of the remainder of the states, about half have
nine-hour laws and half allow work for ten hours a day or more.
Only Montana, which forbids factory work for children under
sixteen, and West Virginia, do not regulate hours. Some of
the southern textile states, however, still allow children to
work legally eleven hours a day, and because of lack of en-
forcement the hours in some of these states are reported to
be even longer.
Legislation for shorter hours for children has sometimes
been combined with that for women, but at present, except
in states where there is an eight-hour law for females, the
workday is nearly always shorter for children than for adult
women. The child labor laws, however, not infrequently
give more protection to young working-girls under sixteen
or even eighteen or twenty-one than to working-boys of the
same ages. 1 Hour limitations usually apply to all occupa-
tions except domestic service, agriculture, and frequently
fruit and vegetable canneries. Occasionally the law covers
factories, but not stores. The hours during which children
may be employed arc further regulated by the very common
prohibition of night work. 2
Opposition from employers against limitation of hours
has been even stronger than against any other restriction on
child employment, the common argument being that manu-
facturers will not be able to hold their own against com-
petitors in neighboring states where longer hours are per-
mitted. With regard to the eight-hour day, especially, an
additional argument frequently advanced is that it would not
be practicable to employ children for so short a period in
a plant where adults work a longer day. After eight-hour
legislation has been passed, however, it has usually been found
that the industries soon adjusted themselves thereto. 3 Finally,
1 The absence of any hour restriction for boys along with an eight-
hour law for all females in Washington has already been noted. Simi-
larly in Texas there is a nine-hour law protecting all females, but no
protection for working-boys.
2 See "Night Work," pp. 248-251, for a fuller discussion of these pro-
hibitions.
1 In order to ascertain the grounds for the objection that children
could not be worked shorter hours than adults in the same factory, a
special investigation was made by an agent of the National Child Labor
Committee in three states, Ohio, Illinois, and New York, where an eight-
2oS PRINCIPLES OF LABOR LEGISLATION
partly in order to meet the interstate competition objec-
tion, and partly in the interest of more thorough enforcement,
the trend is now toward federal regulation, through the power
vested in Congress to regulate commerce between the states. 1
Since all minors are for certain purposes wards of the state,
which is empowered to act for their protection when neces-
sary, the constitutionality of laws limiting their working hours
is not questioned. As a minor is legally incapable of entering
into a free contract, such laws cannot be said to abridge with-
out "due process of law" his freedom to dispose of his labor.
The broad power possessed by the state to regulate the work-
ing conditions of minors was thus summed up by the judge
in the case of People v. Ewer: "So far as such regulations
control and limit the powers of minors to contract for labor,
there never has been and never can be any question as to
their constitutionality.
»> 2
(2) Women
In this country agitation for the limitation of women's hours
followed close on the heels of the movement to regulate the
hours of children. As early as the 'thirties the labor press
had protested against the long hours of work, and strikes for
reduction of hours had been called. 3 Naturally enough the
hour law for children had been in operation for several years. The re-
port of the committee reads as follows: "Information was sought in
factories representing the industries in which the largest numbers ot
children were employed. It was found that children were employed
eight hours at the same kinds of work at which they had been employed
before the law went into effect, while the adults continued to work tor
longer hours. With practical unanimity employers reported that they
had found no difficulty in readjusting schedules to obey the law and
the eight-hour day for children had not been a handicap upon business,
and no cases of failure or removal from the state had resulted. On the
contrary, the industries involved have steadily grown. {Bulletin
National Child Labor Committee, Vol. II, No. 4, February, 1914. P- 44-J
1 The federal child labor bill introduced in Congress in 1 914 provided
that no goods could be shipped in interstate commerce in the manu-
facture of which children under fourteen had been employed at any time
or children between fourteen and sixteen had been employed more than
eight hours a day or between 7 p.m. and 7 a.m.
2 People v. Ewer, 141 N. Y. 129, 36 N. E. 4 (1894). _
3 Report on Condition of Woman and Child Wage-Earners in the United
States, Vol. IX, "History of Women in Industry," Helen L. Sumner,
p. 67.
HOURS OF LABOR 209
agitation centered around the textile mills, as they were the
earliest large factories and their working hours were twelve
or more daily. In 1834 a delegate discussing the condition
of women in factories before the Trades' Union National Con-
vention in Boston, said of the mill-owners: "They must be
forced to shut their mills at a regular hour; there must be a
certain time over which they shall not work; that all the
inmates may have an opportunity to rest their weary limbs,
and to enjoy free and wholesome air." 1
By the 'forties, when many humanitarian movements were
rife, the ten-hour cause had made progress and legislative
action was asked for. For example, in 1842, 1843, and 1844
petitions asking for a ten-hour law were presented to the
Massachusetts legislature. 2 This early movement came al-
most entirely from the ranks of the workers themselves, who
sought legislation limiting hours for both men and women.
Organized working-women played a prominent part in the
campaign. The New England Workingmen's Association, an
organization of wage-earners, encouraged by a few public-
spirited citizens, which soon became the New England Labor
Reform League, was active in the agitation. Closely con-
nected with it was the New England Female Labor Reform
Association, formed in January, 1845, almost all of whose
members were women workers in the textile mills and whose
activities centered at Lowell. They organized meetings,
wrote for the labor press, and petitioned the legislature for
the ten-hour day. The association cooperated with other
women workers and started branches in Fall River, Mass.,
Dover and Manchester, N. H., and perhaps other places. In
1845 the women textile workers of Pittsburgh were unsuccess-
ful in a strike for a ten-hour day, but were told by their em-
ployers it would be given them when other localities also re-
duced their hours. Accordingly, the women wrote to New
England for help. The girls of Lowell and Manchester re-
sponded and all resolved to work only ten hours after July
'National Trades' Union, September 13, 1834, p. 2. Quoted in
Documentary History of American Industrial Society, John R. Commons
and Helen L. Sumner, ed., Vol. VI, p. 219.
2 Charles E. Persons, "The Early History of Factory Legislation in
Massachusetts," in Labor Laws and Their Enforcement, Susan M. Kings-
bury, ed., pp. 24-27.
14
2io PRINCIPLES OF LABOR LEGISLATION
4, 1846. But on account of the opposition of the manu-
facturers their efforts failed, and they once more tried to
secure legislation. These organized women workers first
succeeded in New Hampshire, where "by vigorous personal
efforts they, more than any other group, secured the ten-
hour law of 1847, the first of its kind in the country." ' Similar
acts were passed in Maine and in Pennsylvania in 1848, in
New Jersey and in Rhode Island in 185 1. 2 Massachusetts
passed no ten-hour law until over twenty years later, per-
haps partly because the leaders there insisted on effective
legislation, which these earlier measures did not prove to be.
These first acts were all of a similar type. They set ten
hours as the standard, generally for all workers, for "a day's
work" in the absence of "an express contract requiring greater
time." 3 In New Hampshire, three days before the law went
into effect the manufacturers submitted such express con-
tracts to their employees, and though meetings were held and
active agitation carried on to prevent the operatives from
signing, all who refused were discharged and their places
were soon filled by new workers. In Pennsylvania and New
Jersey, notably at Allegheny City, Gloucester, and Paterson,
the operatives carried on severe and prolonged strikes to
secure the enforcement of the laws. They were successful
in some, though not in all factories, but where the hours were
shortened they suffered a corresponding reduction in wages.
On the whole these early acts "were practically dead letters,
owing to their contracting-out clauses." 4
From the 'fifties until after the Civil War, social reform was
largely forgotten in absorption in the anti-slavery question.
After the Civil War, when the movement for protective legis-
lation revived, the laws asked for applied only to women
and children, and were of the modern type, forbidding em-
ployment in excess of a specified number of hours. The first
1 Report on Condition of Woman and Child Wage-Earners in the United
Stales, Vol. X, "History of Women in Trade Unions," John B. Andrews,
p. 80.
2 Ibid., Vol. IX, "History of Women in Industry," Helen L. Sumner,
p. 69.
3 See, for instance, New Hampshire, Laws 1847, C. 488.
4 Report on Condition of Woman and Child Wage-Earners in the United
States, Vol. IX, p. 73.
HOURS OF LABOR 211
of these had been passed by Ohio in 1852 1 and set a ten-hour
day for women workers, but was rendered unenforceable by
penalizing onlv when a woman was compelled to work in ex-
cess of legal requirements. As most employees will volun-
tarily work for twelve or more hours a day when they cannot
find any one to employ them for ten hours, the law became
almost entirely inoperative. In Massachusetts, active agita-
tion was recommenced by 1864. By that time the women
in the mills were largely Irish and French Canadians who took
little or no part in the movement. After strong opposition
a bill was passed in 1874" limiting the hours of women and
minors in factories to ten daily and sixty weekly. But even
this law was ineffective because only "wilful" violations were
penalized. It was not till 1S79, 3 when an amendment re-
moved the "wilful," that an American state had an enforce-
able law limiting the hours of women's employment. By
that time also state bureaus of labor and factory inspection
were being created in the principal industrial states and were
aiding in the enforcement of labor laws.
Since that time fairly enforceable hour limitation laws for
women have been secured in one state after another. In
1 90S, when the Oregon ten-hour law for women was upheld
by the United States Supreme Court, this legislation was
placed upon a secure footing, and since that date the move-
ment has gone steadily forward. By 1915 only seven states,
in most of which comparatively few women were industrially
employed, had placed no restrictions on women's hours of
work, 4 many had limited hours to eight or nine a day and the
majority had a weekly limit of less than sixty hours.
Present-day hour "legislation for women runs in general
along similar lines in the different states. Most statutes fix
the same daily and weekly maximum hours for all occupations
covered and generally include the principal industrial occupa-
tions for women. Thus in Pennsylvania hours in "any estab-
lishment" are limited to ten daily and fifty-four weekly, and
"any establishment" is defined as "any place within this
1 Ohio, Lav. - - \ [87 : Massachusetts, Laws 1874, C. 221.
3 Massaeh- Law 1 B79, C. 207.
4 These states wen Alabama, Florida, Indiana, Iowa, New Mexico,
Nevada, and West Virginia.
212 PRINCIPLES OF LABOR LEGISLATION
commonwealth where work is done for compensation of any
sort, to whomsoever payable" : except homes and farms. In
only a few cases, however, do the laws define the time during
which the work period must fall, either by naming the spread
of hours allowed, by fixing opening and closing hours, or by
forbidding night work.
American laws, therefore, seem extremely simple when com-
pared with the mass of detail found in European legislation
on this subject. General laws exist in most European coun-
tries, but either by special statutes or by administrative orders
work periods longer or shorter than those of the general law
are fixed for many industries and occupations, and frequently
even for special processes. This principle is often so far ex-
tended as to prohibit entirely the employment of women in
kinds of work especially dangerous to their health or safety.
For example, the English factory act of 1901 gives thejltome
Secretary power to make any limitation of hours whatever
or to forbid the employment of any class of workers in dan-
gerous trades. 2 On the other hand, in certain cases, as where
perishable materials must be handled at once to prevent
spoiling, special orders lengthening the permitted period of
employment may be issued. 3 In addition, night work is, in
general, forbidden, and opening and closing hours, not neces-
sarily the same for every trade, are almost always fixed.
The number of employments covered by hour legislation in
America appears to depend largely on what occupations public
opinion considers dangerous to the health of women. Thus
the exclusion of farm work and domestic service from regula-
tion is at least in part due to the belief that they in no way
endanger health. The earlier laws, both those passed be-
fore the Civil War to fix a standard of hours and the first acts
of the modern type, applied mainly to manufacturing estab-
lishments. Such a limitation in the scope of the early laws
was natural enough. At that time women were employed in
large numbers outside the home only in textile factories. The
Census of 1870 shows that but 1 per cent, of all the women
"gainfully employed" were found in "trade and transporta-
tion." It was in the factories that complaint was made of
1 Pennsylvania, Laws 1913, No. 466, Sees. 1 and 3.
2 1 Edw. 7, C. 22, Sees. 79-83. 3 lw-\ Secs - 49"52,
HOURS OF LABOR 213
the overlong hours of work, and it was the factory operatives
who carried on the bulk of the early agitation for legislation.
Thus in New Hampshire the first hour limitation law, passed
in 1847, applied only to manufacturing establishments, 1 and
the Pennsylvania law of 1848 affected only "cotton, woolen,
silks, paper, bagging, and flax factories." 2 Likewise the
Massachusetts ten-hour law of 1874 covered only "manu-
facturing establishments." 3 It was not until the end of the
'seventies, when the number of saleswomen had largely in-
creased, that the dangers of constant standing and long hours
were noticed and agitation was begun for legislation covering
this occupation. 4 In 1883 the Massachusetts law was amend-
ed to include "mechanical and mercantile establishments."
In the same way, as the field of women's employment broad-
ened, the dangers of excessive hours and injury to health were
discovered in one occupation after another, and the need for
extending protective legislation became correspondingly ap-
parent, until, in the laws passed in the last few years, prac-
tically every form of industrial employment has been cov-
ered at the same time and by the same restrictions.
The Illinois ten-hour law of 1909 was one of the first to do
this. It includes not only factories, mechanical and mer-
cantile establishments, but also any "laundry, or hotel, or
restaurant, or telegraph or telephone establishment or office
thereof, or any place of amusement, or by any person, firm,
or corporation engaged in any express or transportation or
public utility business, or by any common carrier, or any public
institution, incorporated or unincorporated." 6 Similarly in-
clusive acts are found in half a dozen other states, and almost
every act now covers at least "manufacturing, mechanical,
and mercantile establishments."
There are also occasional instances of classification by
cities, exempting the smaller places from the operation of the
law. The Missouri law of 1909 7 and the Texas law of 19 13 8
'New Hampshire, Laws 1847, C. 488.
: Pennsylvania, Laws 1848, No. 227.
3 Massachusetts, Laws 1874, C. 221.
4 Report on the Condition of Woman and Child Wage-Earners in the
United States, Vol. IX, p. 238.
6 Massachusetts, Laws 1883, C. 157. 6 Illinois, Laws 1909, p. 212.
7 Missouri, Laws 1909, p. 616. 8 Texas, General Laws 1913, C. 175.
214 PRINCIPLES OF LABOR LEGISLATION
both applied only to cities of more than 5,000 population.
The Minnesota law applies only to first and second class
cities (over 20,000 population). 1 Establishments of various
sorts employing fewer than three or five persons have also
sometimes been excepted. Until 19 14 the Louisiana law ap-
plied only to establishments employing more than five per-
sons. 2
Such exemptions may perhaps also be explained on health
grounds. It might be expected that the need for legislation
in smaller places would be lessened by a supposed easier pace
of work and the greater personal contact between employer
and employee. Investigation shows, however, that excessive
hours are often worked in small establishments and out-of-
the-way places where public opinion is not active, and such
exceptions are becoming fewer. 3
Certain exemptions have also been made because of special
industrial requirements, the most important of which have
to do with work in canneries. On account of the perishable
nature of the materials, operators of canneries have vigor-
ously opposed any legislation which would limit hours of work
during the summer months, and because of this opposition
a number of states, including most of those in which the
industry is important, have allowed women and children to
work unlimited hours in this industry.
In the degree of restriction placed upon hours of women's
daytime labor, many American states have gone further
than European countries. Most of the important industrial
states still follow early English and American precedent and
fix a daily limit of ten hours, though a majority have reduced
the working week to less than sixty hours. In recent years,
however, as the eight-hour day movement has spread and
standards for protective legislation have risen, several pro-
gressive states have limited the workday to nine and even to
eight hours. New York is the most important industrial
state having the nine-hour day and the fifty-four hour week.
1 Minnesota, Laws 1913, C. 581, Sec. 1.
2 Louisiana, Laws 1908, No. 301, Sec. 1.
3 For instances of bad conditions in the smaller establishments see
reports of the New York State Factory Investigating Commission, the
Senate Wage Commission for Women and Children in the State of
Missouri, the Oregon Social Survey, and similar investigations.
HOURS OF LABOR 215
The eight-hour limits arc found in a few western states and in
the District of Columbia, but only California and the District
have the forty-eight hour week as well as the eight-hour day. 1
iOn January i, 1916, the situation with regard to women's hours
was as follows: ,
State Hours a Day Hours a Week
I. Eight-Hour States:
California 8 4»
District of Columbia 8 48
Colorado 8
Washington 8 ~
Arizona 8 5°
II States Allowing More than Eight but Less than Ten Hours:
State Hours a Day Hours a Week
(8 1/3 mercantile 50
Oregon ■] 8 1/2 offices 5 1
( 9 any other industry 54
(By rulings of Industrial
Welfare Commission)
Arkansas 9 54
Maine 9 54
Missouri 9 54
Nebraska 9 54
New York 9 54
Texas 9 54
Utah 9 . 54
j 9 manufacturing, etc. 54
Minnesota \ IO mercantile, etc. 58
Idaho 9
Montana 9
( )klahoma 9
III. States Alloiving Ten or More Hours:
State Hours a Day Hours a Week
Connecticut 10 55. 5 8
Delaware 10 55 +
Massachusetts 10 54
Michigan 10 54
Ohio 10 54 +
Pennsylvania 10 54
Rhode Island 10 54
Wisconsin 10 55
New Hampshire 10 1/4 55
Wyoming 10 5 6
Tennessee 10 1/2 57
Vermont 1 1 58
Georgia 10 60
Kentucky 10 60
Louisiana 10 60
Maryland 10 60
Mississippi 10 '" '
New Jersey 10 60
North Carolina 11 <*>
2i6 PRINCIPLES OF LABOR LEGISLATION
Most American laws omit one great aid to enforcement in
failing to set a legal closing hour. 1 A few states fix the in-
cidence of the working day indirectly through the prohibition
of night work. 2 In Arizona and Wyoming the permitted
hours must fall within a twelve-hour period, but as a general
rule regulations of the sort are not found in America.
Though a number of states still permit overtime work, the
general tendency seems to be toward doing away with all
such exceptions. In 1909, half the state laws, fourteen out
of twenty-eight, allowed a certain amount of overtime work.
In 191 5, similar exceptions were found in only about a third
of the statutes. The actual working of the laws, both in this
country and abroad, has shown that all such exceptions are
often a decided handicap to the enforcement of the law, being
used to cover violations, or that at best they often defeat its
purpose by legalizing hours so excessive as to be a danger
to health. Therefore, the tendency of recent legislation is
against overtime work under any circumstances.
The conditions under which overtime work is still allowed
seem to fall under three main heads. The overtime work on
account of the stoppage of machinery, allowed in several
states, and a few similar exceptions, are all permitted for the
State Hours a Day Hours a Week
South Carolina 11,12 60
Illinois 10 —
North Dakota 10 —
South Dakota 10 —
Virginia 10 —
Kansas (By Industrial Welfare Commission)
IV. States Having No Laws Regulating Hours of Labor for Women:
Alabama, Florida, Iowa, Indiana, Nevada, New Mexico, West
Virginia.
In the states marked with an asterisk work is limited to six days a
week.
1 In a few states the danger that a woman may be employed by two
or more establishments a total length of time in excess of the legal maxi-
mum is recognized. In Massachusetts, for instance, until recent years,
it was not uncommon in the textile mills for a woman to work ten hours
during the day in one mill, and then for several hours in the evening in
another. The practice was called "swapping." The Delaware statute
(Laws 1913, C. 175, Sec. 2) contains a prohibitive provision in effective
form, applying to all classes of work and placing the responsibility for
discovering any previous employment in the same day entirely on the
employer.
2 See "Night Work," pp. 248-251.
HOURS OF LABOR 217
purpose of making up lost time. Several states allow over-
time to meet the pressure of special industrial requirements,
notably the Christmas rush in retail stores, where all hour
limitations may be removed during that period, as in New
Jersey, 1 or a limited amount of overtime may be allowed as
in Montana. 2 Finally, a very few states fix the amount of
overtime, but not the conditions under which it may be
worked, for example New York, which allows an hour of over-
time in factories on each of three days a week, provided
the weekly total of hours is not exceeded thereby. 3
As previously stated, American statutes usually set the
same daily hour limit for a large and varied group of indus-
tries. That the requirements and the strain of various occu-
pations may differ widely, and that the same limitation of
hours may not equally well meet the needs of the workers
in all of them, has been given but little consideration. For
example, while it is apparent that in some occupations eight
or even ten hours a day may not be physically injurious,
in others, such as those involving exposure to poisons, ex-
tremes of temperature or humidity, or excessive nervous
strain, a much shorter work period may be seriously harmful
to health. In certain branches of the telephone service, for
example, the nervous strain is particularly severe. In 1907,
in Toronto, Canada, a royal commission was appointed to
investigate a dispute between the Bell Telephone Company
and its operators. From the evidence given by physicians,
the commission decided that if the health of the workers was
to be preserved, the workday should not be more than six
hours, spread over a period of about eight hours. 4 Yet no
American state has on account of special dangers placed the
statutory restriction for any selected occupation in which
women are employed below that stated in the general law.
But very recently a few states have adopted a new method
of regulating women's hours, together with minimum wages
and working conditions. These states lay down in their
1 New Jersey, Laws 1912, C. 216, Sec. 1.
' Montana, Laws 1913, C. 108, Sec. 1.
3 New York, Laws 1909, C. 36, Sec. 78 (1).
* Report of the Royal Commission on a Dispute Respecting Hours of
Employment between the Bell Telephone Company of Canada, Ltd., and
Operators at Toronto, Ontario, 1907.
218 PRINCIPLES OF LABOR LEGISLATION
statutes the general principle that a woman is not to be em-
ployed for any period of time dangerous to her health, safety,
or welfare. A commission is then given the power to deter-
mine after investigation maximum periods for different in-
dustries and even for different localities, if desired. Such a
law may become an instrument for the protection of the
worker's health much superior to the ordinary flat rate law.
A commission regulating hours, through its powers of in-
vestigating and setting standards, can take account of special
factors in certain lines of work which might cause serious
injury to the workers in the usual work period, and can adjust
hours according to the strain of each specific occupation.
While all laws of this type conform to this same general
principle, they differ in one important provision. Califor-
nia ' and Oregon permit their commissions to fix only shorter
hours than those established by the general statute. "No
such order of said commission shall authorize or permit the
employment of any woman for more hours per day or per
week than the maximum now fixed by law." 2 But in Ohio
and Wisconsin the hours fixed may be either above or below
those of the general law. Kansas has no law limiting hours
for women except the act empowering the commission to make
regulations.
In Oregon and Washington, the only states in which really
important action on hours of labor has been taken by these
commissions, a considerable amount of flexibility has been
secured in the determination of daily hours by commission
rulings. In Oregon, for example, where the statutory limit
for females over sixteen is ten hours a day, the industrial wel-
fare commission has fixed women's daily hours for the city
of Portland at nine in manufacturing, and at eight and a
third in stores. Even in canneries, which are often excluded
altogether from maximum hour laws, the commission permits
overtime in excess of nine hours, for only one hour daily and
six hours weekly, for not more than six weeks during the year,
and all such overtime must be paid for at increased rates.
The possibilities of still more detailed adjustment to the
needs of specific industries are evident, and therefore the
1 California, Laws 1913, C. 324.
2 Oregon, Laws 1913, C. 62, Sec. 9.
HOURS OF LABOR 219
method of regulating hours through administrative rulings,
provided the precaution is taken of preserving a statutory
limit of hours, marks a decided advance toward accomplish-
ing the real purpose of hour limitation, the prevention of
fatigue by forbidding excessive hours of work.
Most of the special problems in the administration of
woman's work laws center about the enforcement of hour
legislation. Violations of laws regulating a continuing con-
dition like hours of work are obviously more difficult to de-
tect than violations of safety or sanitary laws which can be
discovered by a single inspection. Therefore, various aids
to enforcement have long been found necessary. The most
common of these is the posting of notices, stating the per-
mitted hours of work, a requirement which the United States
Supreme Court sustained as constitutional in 1914. 1 Such a
provision had long been in the laws of a number of states.
Massachusetts, following English precedent, had found it
necessary to require the posting of notices as early as 1880. 2
The law stipulated that printed notices containing the daily
hours of work should be posted "in a conspicuous place" in
every room where employees coming under the ten-hour law
were at work. Immediately an attempt was made to evade
the intent of the act. A report of the enforcing authority, the
chief of the district police, says that notices were found il-
legibly written, "on cards four or five inches square, sometimes
without a single break between the words, and placed over a
doonvay or some other inaccessible place." 3 Extra time was
also worked on the pretense that it was necessary to stop and
start the machinery. Two amendments, in 1886 4 and 1887, 5
were necessary in order to overcome these difficulties. The
law then provided that the notices must be put on forms ap-
proved by the attorney-general and supplied by the enforc-
ing authority, and must contain the hours of beginning and
ending work and of meal-times, as well as the number of
hours worked each day. Similar provisions as to the posting
of notices have been found essential in other states.
1 Riley v. Commonwealth, 232 U. S. 671, 34 Sup. Ct. 469 (1914).
2 Massachusetts, Laws 1880, C. 194.
3 Report of the Chief of the District Police, 1884, pp. 14-18.
* Massachusetts, Laws 1886, C. 90.
6 Ibid., Laws 1887, C. 280.
220
PRINCIPLES OF LABOR LEGISLATION
A more recent device which provides additional help in
enforcing the law is that of a record book, open to inspection
by the authorities and containing the actual hours worked
each day by each female. Few states rely exclusively on
this device for help in enforcing the law. 1 Several states,
however, require the keeping of record books in addition to
posting notices, 2 or as a substitute where daily hours are so
irregular that they cannot be determined in advance. 3
Even the wording of the penalty clause is of importance in
relation to the enforceability of the law. Massachusetts'^ first
ten-hour law could not be enforced as long as only "wilful"
violations were penalized. Several states still render their
laws inoperative by similar clauses. For instance, in South
Dakota only the employer who "compels" a woman to work
overtime is responsible. 4 Experience shows that it is prac-
tically impossible to prove such compulsion and that con-
victions can be secured only when "permitting" excessive
hours is also a violation of the law. The enforceability of the
laws in a few southern states, which penalize only "contract-
ing" to work overtime, also seems doubtful. 5 Even among
the enforceable laws there is a difference in effectiveness. ^ It
is clearly easier to obtain proof of violation in a state like
New Hampshire, 6 where the employment of a woman "out-
side" the posted hours is a violation of the law, than where
the inspector must prove that she worked "longer" than the
posted number of hours, as in Tennessee. 7 It may also be of
importance in successful prosecutions to note whether the
employer alone, "his agent" or "any person" may be held
responsible, and whether only the working of excess hours is
penalized or, in addition, a failure to post notices, the making
of false statements in notices and time-books and the like.
Equitable and necessary as legal limitations on the daily
hours of working- women are generally recognized to be, they
have frequently been contested as out of harmony with our
1 One of these is Illinois, Laws 191 1, p. 328.
2 See New York, Laws 1913,0. 200, Sec. 5.
3 See Kentucky, Laws 1912, C. 77, Sec. 5.
4 South Dakota, Laws 191 3, C. 240, Sec. 1.
8 See Virginia, Laws 191 4, C. 158, Sec. 1.
6 New Hampshire, Laws 191 3, C. 156, Sec. 3.
7 Tennessee, Laws First Extra Session, 1913, C. 121.
HOURS OF LABOR 221
state and federal constitutions. Clearly, limiting the hours
during which a woman may be employed does abridge her
freedom to use her capacity for work to its utmost extent.
The courts seem to hold in general that such a limitation may
be made through the state's exercise of its police power only
if excessive hours involve some appreciable danger to the
class of workers involved or to the community.
The conflict of judicial decisions on the subject appears to
arise from differing opinions as to the existence of such danger.
Opinions opposed to legal restriction emphasize the interfer-
ence with woman's freedom to contract to work each day as
long as she pleases, implying that employer and employee
stand on an equal footing in determining working conditions
and that an employee works long hours of her own free will.
Such a restriction of freedom of contract, they hold, deprives
a woman worker without due process of law of the valuable
property right of disposing of her own labor as she sees fit,
and furthermore is class legislation because it denies her privi-
leges accorded to men workers. The favorable decisions take
cognizance of actual industrial conditions and point out that
the labor contract is not freely made between equals, but that
its terms are settled largely by the employer and that the
state may therefore interfere in the interests of the public
welfare.
The first important decision on the constitutionality of hour
legislation for women was rendered in Massachusetts in 1876,
upholding the ten-hour law. In this case, says Professor
Ernst Freund, 1 "the court was obviously a good deal puz-
zled how to deal with the objections raised, disposing of
them in a rather offhand and not altogether satisfactory
fashion." In a brief opinion 2 the court pointed out that the
legislature had evidently considered factory work "to some
extent dangerous to health," and that the statute was there-
fore a health or police measure. This decision, however, held
that the legislation did not prevent women from working as
long as they saw fit, but only from working more than ten
hours continuously in a factory.
1 Freund, "Constitutional Limitations and Labor Legislation," in Third
Annual Meeting of the American Association for Labor Legislation, p. 51.
2 Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876).
222 PRINCIPLES OF LABOR LEGISLATION
The next important decision on the constitutionality of hour
legislation for women was not rendered until 1895, almost
twenty years later. During the interval the principle of en-
tire freedom of contract between capital and labor had been
developed. 1 This doctrine was reinforced by the idea that
the right to dispose of one's labor freely is a property right,
not to be abridged — according to the fourteenth amendment
to the constitution of the United States — "without due
process of law." It was on this ground that in 1895 the
Illinois Supreme Court declared invalid an eight-hour law
for women in factories. 2 The court could see no "fair, just,
and reasonable connection between such limitation and the
public health, safety, or welfare proposed to be secured
by it."
But three years later, in 1898, the United States Supreme
Court showed the fallacy of the doctrine of freedom of con-
tract between employer and employee, 3 and within the next
few years, in 1900 and 1902, three decisions by state courts 4
brought out in addition reasons why women as a special class
of workers particularly need protection. These decisions took
into account the fact that women are physically weaker than
men and that therefore their health is more likely to suffer
from excessive hours of work. Any injury to the health of
women workers is of particular social importance, since it is
on their health that the vigor of the next generation directly
depends.
The year 1908, however, finally settled the question as far
as the restriction of daytime hours to a maximum of ten was
concerned. The United States Supreme Court unequivocally
upheld the constitutionality of the Oregon ten-hour law as a
health measure. 5 "As healthy mothers are essential to vig-
orous offspring, the physical well-being of women becomes an
object of public interest and care in order to preserve the
1 First laid down in 1886 in Godcharles v. Wigeman, 113 Pa. St. 431,
6 Atl. 354; Millet v. People, 117 111. 294, 7 N. E. 631 (1886).
2 Ritchie v. People, 155 111. 98, 40 N. E. 454 (1895).
3 Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 (1898). See "Hours
of Labor, Men," p. 240.
4 Commonwealth v. Beatty, 15 Super. Ct. (Pa.) 5 (1900); Wenham v.
State, 65 Neb. 395, 91 N. W. 421 (1902); State v. Buchanan, 29 Wash.
603, 70 Pac. 52 (1902).
B Mueller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908).
HOURS OF LABOR 223
strength and vigor of the race. . . . The limitations which this
statute imposes upon her contractual powers, upon her right
to agree with her employer as to the time when she shall labor,
are not imposed solely for her benefit, but also for the benefit
of all." In this case and succeeding ones of a similar nature
the influence of the method by which the legislation was de-
fended should not be overlooked. Exhaustive briefs were
prepared by Mr. Louis D. Brandcis and Miss Josephine Gold-
mark, not so much emphasizing the legal aspects of the case
as presenting a mass of extracts to show the actual effects of
excessive hours of work on the health of women. In 1909,
Illinois, whose working - women had been left unprotected
from excessive hours since its eight-hour law was over-
thrown in 1895, passed a ten-hour bill. The constitution-
ality of the statute was immediately attacked. This time,
however, the Illinois Supreme Court did find a clear con-
nection between the measure and the protection of the
public health. It recognized not merely a theoretical free-
dom of contract, but, as well, the facts as to the effects
of excessive hours on the health of women. "What we
know as men," said the court, "we cannot profess to be
ignorant of as judges." l
The constitutionality of a ten-hour workday was now es-
tablished, but the reasonableness of further restriction was
still in doubt. In 1915, however, the United States Supreme
Court upheld the constitutionality of the California law which
fixed an eight-hour day as the maximum for women workers.
The court said that the same principles were at stake as in
the previous cases, and that while "a limitation of the hours
of labor of women might be pushed to a wholly indefensible
extreme . . . there is no ground for the conclusion here that
the limit of the reasonable exertion of protective authority
has been overstepped." 2
Hour legislation for women has also been attacked on the
ground that it is class legislation, discriminating unreason-
ably between various classes of workers, and denying that
"equal protection of the laws" which was promised to all per-
sons by the fourteenth amendment. The statutes have been
1 Ritchie v. Wayman, 244 111. 509, 91 N. E. 695 (1910).
2 Miller v. Wilson, 236 U. S. 373, 35-^up. Ct, 342 (1915).
224 PRINCIPLES OF LABOR LEGISLATION
attacked both because they included certain employments
and because they failed to include certain others. The con-
stitutionality of the Illinois law was questioned because it
included employees in hotels and in public institutions. One
of the chief points raised against the constitutionality of the
California law was its inclusion of student nurses. On the
other hand, different laws have at various times been called
"class legislation" because they included only factories and
laundries, and because they excluded mercantile establish-
ments, canneries, stenography, and domestic service. The
courts have given but little weight to this type of objection,
asserting the freedom of the legislature either to use discretion
in enlarging the scope of the laws l or to single out those groups
of workers most in need of protection. 2
In an Oregon case the constitutionality of regulation of
women's hours by a commission has been attacked on the
ground that substituting commission for court authority on
questions of fact takes property without "due process of
law." The state supreme court sustained the method, hold-
ing that it contained the essentials of due process, which it
defined as "reasonable notice and a fair opportunity to be
heard before some [proper] tribunal." 3 The case was ap-
pealed to the United States Supreme Court where in the
fall of 191 5 it was still pending.
Thus the working-woman's theoretical freedom of contract
to dispose of her labor under whatever conditions she pleases
has been restricted by the state through its police power.
Such a limitation is rightfully applied to women workers as
a class, because as workers they do not stand on equal footing
with their employers in bargaining and because as women
their health is more quickly injured by excessive hours of
work. Furthermore, the community suffers if the health of
any large number of women is endangered, for on the health
of women depends the vigor of the race. The reasonableness
of the range of employments included in the laws has been
affirmed, and hours may now be limited to as few as eight in
daytime work.
1 People v. Elerding, 254 111. 579, 98 N. E. 982 (1912).
2 See Withey v. Bloem, 163 Mich. 419, 128 N. W. 913 (1910).
3 Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914)-
HOURS OF LABOR 225
(j) Men
In contrast with the considerable development of hour
regulations for women and children is the fragmentary condi-
tion of legislation affecting the working hours of adult men.
One of the main reasons for the halting growth of this type
of law has been the doubtful attitude of the courts. In this
matter, however, the courts merely reflect prevailing public
opinion, which is as yet hardly awake to the need of restrict-
ing men's hours in general employments. Even trade union-
ists are sometimes opposed to shortening hours for men by
the legislative method, through fear that it will weaken union
organization.
Most men's hour laws cover employees on public works
or in transportation. In the former case the state is merely
fixing the working conditions of its own employees; in the
latter, the element of public safety is involved. Where public
safety is not directly concerned, legislation is common only
for the peculiarly hazardous occupation of mining. As with
other forms of protective legislation, however, and in view
of our increasing knowledge of the dangers of overwork, es-
pecially in continuous industries, the principle of hour re-
striction, first established for women and children, may
eventually be extended to cover all wage-earning men. The
new laws for one day of rest in seven, and recent legislation in
Mississippi and Oregon for ten hours in manufacturing, make
it not unlikely that a period of hour regulation for adult male
workers has begun.
a. Public Work. The first attempt legally to regulate the
working hours of men in the United States was the executive
order of President Van Buren in 1840, stipulating a ten-hour
day in government navy-yards. 1 Since the early 'thirties
special pressure had been brought to bear upon the federal
government to shorten the working day, partly because it was
felt that the short workday in public employments would
have a strong influence in reducing hours in private employ-
ments, and partly because there was little doubt of the gov-
ernment's right to regulate the hours of its own employees.
1 Documentary History of American Industrial Society, John R. Com-
mons, ed., Vol. VIII, p. 85.
15
226 PRINCIPLES OF LABOR LEGISLATION
In 1S40, therefore, while the eleven- and twelve-hour days were
the rule in private industry, Van Buren was induced to issue
the order referred to. Although this was done at a time of
industrial depression, he requested that no corresponding
reduction in wages be made.
It was not, however, until 1868 that Congress took action
on the question and provided that "eight hours shall con-
stitute a day's work for all laborers, workmen, and mechanics
who may be employed by or on behalf of the government of
the United States." l The law did not work as well as its
advocates had hoped. Although it applied to contractors
and subcontractors, it failed to prohibit agreements for over-
time work. Its ineffectiveness in actually reducing the hours
of any considerable number of government employees soon
became apparent, but it was not until August 1, 1892, that a
more effective law covering these classes of employees was
passed. This act 2 was mandatory, applied to contractors and
subcontractors, and provided a heavy penalty for violations.
It did not, however, apply to work done on that very large
class of goods or materials purchased by the government,
such as army and navy equipment, vessels of war, clothing,
boots, shoes, and paper. The attorney-general also ruled that
the act did not apply to work done on materials purchased
by contractors. Moreover, contractors themselves were con-
stantly making use of the undefined term "emergency" as an
excuse for working employees overtime. 3 Agitation for a more
inclusive measure was initiated and continued for twenty
years before the law was rewritten. Finally the act of June
19, 1912, provided that an eight-hour provision must be in-
serted in all contracts which may involve the employment of
laborers or mechanics when made by, for, or on behalf of the
federal government, its territories or the District of Columbia.
Exception was made in the case of contracts for transportation
by land or water, for the transmission of intelligence or for
the purchase of supplies which could be bought in the open
market, except armor and armor plate. 4 Provision was also
1 United States, Revised Statutes, 1878, Title 43, Sec. 3738. See
United States Commissioner of Labor, Second Special Report, 1896.
2 United States, Compiled Statutes, 1901, See. 3738.
3 Report of Industrial Commission, 1902, Vol. XIX, p. 792.
4 See opinions of attorney -general since 1912. One opinion held that
HOURS OF LABOR 227
made for "emergencies caused by fire, famine, or flood, by
danger to life or property," or by any other extraordinary
event or condition on account of which the President shall
subsequently declare the violation to have been excusable.
One year later dredging and rock excavating in rivers and har-
bors of the United States, which had been excluded from the
eight-hour law of 1892 by a Supreme Court decision, 1 were
specifically brought under the operation of the new federal
act.
Effective restriction of hours of labor was secured for
certain groups of post office employees before it was for
federal laborers and mechanics. As early as 1888 hours of
city letter-carriers were reduced from ten to eight, with the
proviso that pay be not reduced and that extra remuneration
at the new rate be given for overtime. In 191 2 the eight-hour
day was extended to clerks in first and second class post offices,
work to be performed within ten consecutive hours.
In 191 5 legislation to restrict the amount of work which
might be exacted of federal employees took a new turn.
In addition to the earlier laws limiting the number of hours
a day that could be worked, clauses were enacted tending to
limit the speed and intensity of the labor. In the appropria-
tion bills for both the army and the navy, provisos were in-
serted that none of the money was to be used to pay any
officer "while making or causing to be made, with a stop-
watch or other time-measuring device, a time study of any
job of any . . . employee ... or of the movements of any such
employee while engaged upon such work." It was also stipu-
lated in both bills that money was not to be used to pay
bonuses or cash rewards, except for suggestions resulting in
improvements in the service. 2
The movement for a shorter workday on public employ-
ments was early taken up by the various states, until by the
under the appropriation act of June 6, 191 2, where contracts for ammuni-
tion are made, the eight-hour provision relates to employees only when
they are engaged on that particular government work and that they
may work longer hours for their employers (when contractors) on non-
government work.
1 Ellis v. United States, 206 U. S. 246, 27 .Sup. Ct. 600 (1907).
2 United States, Laws 1914-1915, C. 83, section on Increase of the
Navy; C. 143, section on Ordnance Department.
228 PRINCIPLES OF LABOR LEGISLATION
end of the 'nineties a dozen states and several cities had eight-
hour enactments. 1 But the early state laws, like those of the
federal government, were often faulty and unenforceable.
The turning-point was the Kansas law of 1891, which con-
tained practically all of the essentials of an enforceable act.
This measure not only fixed hours of labor on direct work for
the state, but also extended its provisions to municipal cor-
porations and to contractors for public works, and imposed
a penalty for violations by any public official or contractor.
At present over half of the states have eight-hour laws for
employees on public works. 2 In practically all cases the laws
apply to both direct and contract work, to "the state or any
political subdivision thereof," and cover "all manual labor-
ers" or all "laborers, workmen, and mechanics," and oc-
casionally all classes of labor. Frequently certain classes of
employees are excepted, as firemen, policemen, and certain-
classes of workmen in state institutions. Provision is almost
always made for overtime in case of "emergencies," frequently
defined as "imminent danger to property, life, or limb"; but
unless a clear definition of the term is given, advantage may
easily be taken of the exception to permit unnecessary over-
time.
Massachusetts adopted a somewhat different principle when
the legislature in 1909 fixed a nine-hour day for cities and
towns, but gave them the privilege of changing to the eight-
hour day by popular vote. Four years later the legislature
provided that in any city or town which had not yet accepted
the eight-hour day the question must be submitted to referen-
dum at the next municipal election, and if defeated must be
resubmitted every two years upon securing a given number of
petitioners. 3
In addition to the state laws regulating hours on public
works, a large number of cities have embodied eight-hour
provisions in their charters or have enacted eight-hour ordi-
1 Baltimore (1866) was the first city, and California (1868) perhaps the
first state, to adopt this legislation.
2 One of the latest of these went into effect in Ohio on July 1, 191 5,
and during the last few weeks before that date contracts aggregating
millions of dollars were let by state and city departments in order to
take advantage of the lower cost possible under the old ten-hour system.
8 Massachusetts, Laws 1913, C. 822,
HOURS OF LABOR 229
nances to cover municipal work. These measures follow the
main lines of the state laws and in addition frequently specify,
among other things, the kinds of work which may be done
directly by the city and those which must be done by con-
tract, rates of wages, the method of selecting employees,
whether by civil service, citizenship, or trade union member-
ship, and occasionally provide for physical examination of
applicants.
b. Private Employments. In private employments the
movement for legislative restrictions upon the length of the
working day for men, although associated with the ten-hour
campaigns in the interests of both men and women in the
reform agitations of the 'forties, did not attain national im-
portance before the period of the Civil War, when Ira Steward,
a Boston machinist, inaugurated a nation-wide movement for
the universal eight-hour day by law. 1 Scores of eight-hour
leagues sprang up, the National Labor Union, the predecessor
of the Knights of Labor, indorsed Steward's plan, and during
the next few years laws were actually passed by a number
of states. First among these was Illinois in 1867. These
laws were not enforceable, and the movement died down
until it was revived by the growing Knights of Labor, which,
however, soon turned the course of action away from the
legislative to the trade union method.
During the past generation progress has been made mainly
through collective bargaining instead of by legal enactment. -
There have been, however, important exceptions. Over half
the states have enacted laws shortening the hours of employees
1 For a full description of the history and philosophy of this movement
see Documentary History of American Industrial Society, Vols. IX and X,
John R. Commons and John B. Andrews, ed.
2 At the November elections of 191 4 in the Pacific coast states of
Washington, Oregon, and California, the Socialists secured a vote on
initiated measures for the universal eight-hour day. All of these measures
were defeated, largely through the opposition of the farmer vote. The
Alaska legislature of 191 5 referred the question to the voters at the
next election. Resolutions favoring the legal eight-hour day for men
were defeated at both the 191 4 and 191 5 conventions of the American
Federation of Labor, although the vote on the second occasion was closer.
This action was taken largely on the alleged ground that if the legisla-
ture may fix maximum hours of work it will also fix minimum hours.
The real basis of opposition appeared to be the fear that legislative
action would weaken the movement for trade organization.
2 3 o PRINCIPLES OF LABOR LEGISLATION
on steam and on electric railways, and more than a dozen
states have eight-hour laws for the protection of workers in
mines and smelters. In two states, also, Mississippi and
Oregon, ten-hour laws were passed in 191 2 and 19 13 for
workers in manufacturing industries.
(a) Transportation. The regulation of hours of labor on
railroads presents peculiar difficulties. Almost invariably em-
ployees in other industries live sufficiently near their work to
enable them to return home at night. But the engineer or
fireman may find himself several hundred miles away from
home or even away from food and shelter at the end of a
stated number of hours' work. The problem therefore is to
arrange "runs" so that employees may at the end of their
work period find themselves in habitable quarters. The
length of the "run" must, of course, depend somewhat upon
the length of the railway division and upon the character of
the country through which the road extends.
One of the early court decisions dealing with hours on
railroads involved the case of an engineer who, after he had
been on duty for nearly seventeen hours, was summoned by
the master mechanic of the road to take out another train
which it was assumed would require only five or six hours of
work. In reality the second run lasted for a much longer
time, and on his return after thirty-one hours' service his
train collided with another train on the company's road. On
the ground of contributory negligence the court denied the
engineer's claim for damages for injuries he sustained. 1 Such
situations have not been infrequent and runs of thirty-six,
fifty, seventy, and at times even 100 hours have been re-
corded. 2 These excessive hours have often resulted in serious
accidents and great loss of life, and accordingly the first dec-
ade of the twentieth century saw the enactment, under the
influence of the powerful railroad brotherhoods, of many laws
regulating the length of the working day for railroad em-
ployees.
Although the legislation is of comparatively recent date,
1 Smith v. Atchison, Topeka and Santa Fe Railway Co., 39 Tex.
Civ. App. 468, 87 S. W. 1052 (1905)- . A _ _
2 For a vivid description of this subject see paper by A. B. Lxarretson,
American Labor Legislation Review, Vol. IV, No. I, pp. 120-128.
HOURS OF LABOR 231
already over half of the states of the union have placed such
acts upon their statute books. This legislation relates usually
to two classes of employees, those directly connected with the
handling of trains, such as engineers, firemen, conductors, and
brakemen, and those connected with directing the movements
of trains, such as despatchers, telegraphers, and signal-men.
Considerable uniformity exists in these legal restrictions.
For men actually handling the trains the majority of states
make sixteen hours the maximum limit for a day's work, to
be followed by eight or ten consecutive hours of rest. Cer-
tain classes of employees, such as those on sleeping-cars,
baggage-cars, or wrecking-trains, are frequently excluded,
while a few roads under a specified length are exempted, as
in New York, where the law applies only to lines of thirty
or more miles. Practically all states make exceptions in case
of "emergencies," a necessary exemption, but one which, if
not denned, can easily be used as an excuse for disregarding
all legal limitations.
The second class of railroad employees for whom hour
limitations have been established by law are those connected
with the movement of trains, such as telegraphers, despatchers,
and signal-men. Great irregularity of employment exists
among this class of workers, since an operator's work and dis-
tribution of time will depend entirely upon the frequency of
train service at his particular station. Here again legal hours
depend upon whether or not employment is continuous. In
the case of continuous employment hours are usually limited
to eight a day, and frequently the three-shift system is used,
particularly in the larger railroad centers. If employment is
not continuous, or if offices are open only in the daytime,
hours are usually limited to twelve or thirteen a day, to be
followed by a rest period of eight or ten hours, as with train-
men. Most states make a few exceptions or allow overtime
for limited periods, while two or three restrict hours only
where a certain number of trains, as eight passenger or twenty
freight-trains, pass daily.
Railroad employees on interstate lines are protected by a
federal statute, enacted on March 4, 1907, applying to all
"persons actually engaged in or connected with the move-
ment of any train" in the District of Columbia, or in any
232 PRINCIPLES OF LABOR LEGISLATION
territory of the United States, or on interstate lines. 1 By
this act hours are limited to sixteen a day, with certain pro-
visions for rest periods; 2 but no train-despatcher, telegrapher,
or any employee who transmits messages or orders by tele-
graph or telephone "shall be required or permitted to be or
to remain on duty for a longer period than nine hours" in
places continuously operated day and night, nor for more than
thirteen hours in places operated only during the daytime.
Overtime in cases of emergency, which is carefully denned in
the act, may be permitted for four additional hours on not
more than three days a week. The Interstate Commerce
Commission is charged with the duty of enforcing the act,
and it may require reports of violations and of the causes for
overtime, and may after full hearing extend the period of
permitted overtime in special cases. By the operation of the
federal act the great majority of railroad employees, even in
states without hour limitation laws, are protected, since but
few employees are engaged in intrastate train service ex-
clusively.
Somewhat akin to the problem of the trainman is that of
the motorman and conductor on street railways. Until the
early 'eighties, hours for streetcar employees were commonly
from twelve to fourteen a day, and often ran as high as sixteen
to eighteen. In 1864 a coroner's jury in the city of Philadel-
phia, passing upon a fatal accident, said: "Nor should we
expect vigilance and attention from employees worn out by
seventeen hours of incessant labor. . . . The constant occurrence
of passenger railway accidents demands from this jury an
unequivocal condemnation of the companies who compel men
to do work to which the bodily and mental frame is not usual-
ly equal." 3
During the 'eighties the states began to enact legislation
on the subject, until now about a dozen laws have been passed
limiting hours usually to ten or twelve a day. Most of these
acts provide for overtime in case of unexpected emergencies,
and many require extra compensation for such emergency
1 United States, Laws 1906-1907, C. 2939.
2 See "Rest Periods," p. 247.
3 United States Bureau of Labor, Bulletin No. 57, March, 1905, "Street
Railway Employment in the United States," Walter E. Weyl, p. 6ia,
HOURS OF LABOR 233
work, but very few give adequate attention to the equitable
distribution of working time. Although streetcar service is
one of the most constant forms of employment, the public
demands not only regularity, but also additional service at
the rush periods of the day, on Sundays and holidays, after
the theater, for excursions, public games, or special celebra-
tions, and on many other occasions, most of which do not
occur with any degree of regularity. Men must be employed
to meet these irregular and often unexpected demands. For
this purpose a long waiting-list is usually kept, and men are
employed and paid often for only two or three hours at a
time. The presence of these extra men acts as a stimulus to
the regular men, who for fear of losing their jobs will work
for a longer time than the normal period. This situation fur-
nishes an additional reason for the enactment of legislation
in several states definitely fixing the maximum number of
hours within which the legal day's work must be performed.
Rhode Island in 1902 provided that a day's work should not
be longer than ten hours, completed within twelve consecu-
tive hours' time. 1 Although this measure specifically per-
mitted contracts for overtime, the supreme court of the
state held the ten-hour day binding upon all companies, since
the legislature had expressly stated its intention to limit
the hours of all employees covered by the act. 2 Massa-
chusetts is among the more recent states which have at-
tempted to meet effectively the problem of proper distribu-
tion of time. In 19 13 the legislature limited working hours
to nine a day and set eleven consecutive hours as the maxi-
mum time within which the labor must be performed. 3 More-
over, this act specifically provides that threat of loss of em-
ployment or refusal of future work or hindering an employee
in securing other work will be considered as "requiring"
overtime, which is punishable by a heavy penalty.
Another method of regulating hours of service on street
railways is by the insertion of labor clauses in franchises
1 Rhode Island, Laws 1902, Cs. 1004, 1045.
2 Opinion to the governor (In re Ten- Hour Law for Street Ry. Corpora-
tions), 24 R. I. 603, 54 Atl.602 (1902). "The law before us is more clearly
within such power, for the triple reason that it deals with public corpora-
tions, the use of a public franchise, and a provision for public safety."
3 Massachusetts, Laws 1912, C. 533, as amended by Laws 1913, C. 833.
234 PRINCIPLES OF LABOR LEGISLATION
granted to railway companies. This method is much less
common in America than in European cities. In Paris,
for instance, one of the labor conditions stipulated in the
franchise for the subway was that daily hours should not ex-
ceed ten. Among the few American cities which have adopted
this plan are Dallas, where a twelve-hour day, and Cleveland
and Detroit, where a ten-hour day were secured on local car
lines.
Regulation of hours in water transportation is found in a
federal act of 19 13, limiting hours of deck officers to nine out
of twenty-four while in port, and, except in emergencies, to
twelve out of twenty-four while at sea. 1 The federal law of
191 5 regulating the working conditions of seamen provides
that when a vessel is in a "safe harbor, nine hours, inclusive
of the anchor watch, shall constitute a day's work." 2
(b) Mines and Tunnels. During the past generation several
states have taken still another step and have enacted legisla-
tion regulating the hours of labor for men in private employ-
ments where the safety or welfare of the general public is not
involved. This class of legislation has been applied particu-
larly to mines, smelters, and related industries.
The mining industries occupy an important position in the
industrial life of this country, since they employ over one and
one-half million workmen, practically all being adult males.
Coal-mining alone claims nearly one-half the total number.
Trade union organizations in both the coal and the metalli-
ferous branches of this industry have been among the largest
and most powerful in America.
The special dangers of mining have been frequently pointed
out, as well as the greater hazard in American than in foreign
mines. It has been shown, for instance, that the average
fatality rate in coal-mining in the United States during the
ten years ending with 19 10 was 3.74 a 1,000, in comparison
with a rate of 2 .92 for Japan, 2 . 1 1 for Germany, 1 .69 for France,
1.36 for Great Britain, 1.04 for Austria, and 1.02 for Belgium. 3
1 United States, Laws 1912-1913, C. 118.
2 Ibid., Lav.s 1914-1915, C. 153.
3 United States Bureau of Mines, Bulletin No. 60, 1913. "Coal-Mine
Accidents in the United States and Foreign Countries," Frederick W,
Horton, p. 87.
HOURS OF LABOR 235
The speed of the American miner is indicated by the fact that
he produces about five times as much coal in a day as does
the miner of either France or Belgium. This is partly due,
however, to greater use of machinery and to the more recent
development of American mines, which permits a greater
proportion of work to be done near the surface. These lat-
ter conditions are, however, partly offset by the fact that
American miners work about eighty days less a year than do
the French and Belgian miners. 1 Investigations of health
conditions in the various branches of this industry have re-
vealed the presence of injurious and explosive dusts, noxious
gases, poisonous metals or chemicals, sudden and wide varia-
tions of temperature and moisture, and impure air often vi-
tiated by powder smoke; in addition miners are commonly
exposed to diseases arising from soil pollution due to inade-
quate sanitary facilities. 2
Safety and health dangers in the mining industries have
become so well known that at the present time over a dozen
states, including practically all in which the mining industry
is important, limit hours in the various classes of this work
to eight in one day. Many mines operate on the two-or
three-shift system and a few of the laws make special
provision for additional hours at the time of changing shifts.
These eight-hour laws very frequently apply to all under-
ground workings, to smelters, or to any employment, includ-
ing that of hoisting engineers, involved in the mining, smelt-
ing, or refining of ores or metals. 3 Surface excavations, and
work carried on at less than a specified depth, such as 150 feet
in shaft work or 200 feet in tunnel work, are occasionally
exempted. Although in some of the deeper mines the heat,
moisture, and the difficulties of proper ventilation make even
eight hours of work a positive menace to health, 4 no mining
1 United States Bureau of Mines, Bulletin No. 6g, 1 9 1 3 , "Coal-Mine
Accidents in the United States and Foreign Countries," Frederick W.
Horton, p. 88.
2 S. C. Hotchkiss, "Occupational Diseases in the Mining Industry,"
American Labor Legislation Review, February, 1912, p. 131. S<
publications of the United Bureau of Mini, Washington, D. C.
a See Arizona, Laws 1912, C. 28.
4 In the Comstock silver mines in Nevada, at a depth of 2,000 feet,
work has been carried on in short shifts at a temperature of 150 F., the
men being freely supplied with ice-water.
236 PRINCIPLES OF LABOR LEGISLATION
law in this country has attempted to make any scientific ad-
justment of hours based on the degrees of danger in different
classes of mines.
The beginnings of such adjustment are, however, to be
seen in the laws of New York and New Jersey governing work
in compressed air. Under both of these statutes not only are
daily working hours regulated by the degree of pressure under
which the work is done, but they are divided into two equal
periods, the rest interval between which also varies according
to the pressure, as follows:
If the pressure
But
does
not
Number of hours'
Interval between
exceeds:
exceed:
work !
in 24:
working periods'-
Normal
21
pouni
is
8
hours
K hour
21 pounds
30
■i
6
1 1
I
30 "
35
ii
4
11
2 hours
35 "
40
11
3
11
3
40
45
11
2
1 1
4 "
45 "
50
11
1}
/ 11
'2
5 "
(c) Factories and Workshops. As indicated in the preceding
section, when legal restrictions do not directly affect public
health or safety, but apply mainly to the health of the in-
dividual adult male workers, we find fewer legal regulations.
The general declarations that eight or ten hours shall con-
stitute a day's work in the absence of special contracts or
agreements, found in the constitutions or statutes of about
half the states, amount merely to a statement of principles.
They have practically no effect upon the actual length of the
working day, since they do not attempt to prevent either im-
plied or written contracts for overtime, nor do they often pro-
vide a penalty for violation.
Only about a dozen states have succeeded in regulating by
legislation the hours of adult males in one or more employ-
ments in factories and workshops. Eight-hour laws are found
for laundries and electric plants in Arizona, for stationary fire-
men in Louisiana, for plaster and cement mills in Nevada,
while a ten-hour limit is placed in saw- and planing-mills in
Arkansas, in bakeries in New Jersey, in brick-yards in New
York, in certain textile mills in Georgia, North and South
Carolina, and in a few states in drug and grocery stores.
Only two states, Mississippi in 191 2, l and Oregon in 1913, 2
1 Mississippi, Laws 1912, C. 157. 2 Oregon, Laws 1913, C. 102.
HOURS OF LABOR 237
have limited hours for all classes of employees in general
manufacturing industries. Both states adopted the ten-hour
day (with certain exceptions), but the Oregon statute allows
three hours' overtime provided a 50 per cent, increase in pay
is given, while the Mississippi act as amended in 19 14 l per-
mits twenty minutes' overtime on each of the first five days
of the week, this time to be deducted from the last day of
the week.
c. Constitutionality. The two main legal principles involved
in the constitutionality of maximum hour laws for women are
equally important in connection with hour legislation for men.
There is, on one side, the right of free contract for the disposal
of one's own labor, and on the other the possible limitation of
this right by the police power in the interests of social welfare.
While it is now definitely settled that hour legislation for
women is a rightful exercise of the police power of the state,
the question is somewhat more uncertain in regard to hour laws
for men. The constitutional status of the latter type of laws
seems to depend on the purpose of the restriction and the class
of workers covered. The courts usually uphold hour legisla-
tion which applies to public work, and to private business if
the public safety is directly concerned, as with railroad train-
men, but opinions are conflicting on hour legislation for pri-
vate employment where the safety, health or welfare of the
employees alone is involved.
Although several earlier decisions were unfavorable, in 1903
the United States Supreme Court upheld the Kansas act of
1 89 1, which established the eight-hour day in public employ-
ment both for direct and for contract work. "It belongs,"
said the court, "to the state, as guardian and trustee for its
people, and having control of its affairs, to prescribe the con-
ditions upon which it will permit work to be done on its be-
half, or on behalf of its municipalities." 2
But while this decision supported the right of the state to
control the action of its political subdivisions, state courts have
not always followed its precedent on this point. In New
York, for instance, this right was denied on the ground that
municipal corporations are local bodies supported by local
1 Mississippi, Laws 191 4, C. 169.
1 Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124 (1903).
238 PRINCIPLES OF LABOR LEGISLATION
taxes, and arc therefore on the same footing as private cor-
porations. 1 In order, therefore, that there might be no
future question on these points, the people of the state in
1905 amended their constitution expressly giving the legisla-
ture the power to fix all conditions of labor on public work,
whether done directly by the state or through contractors. 2
A similar amendment to the Pennsylvania constitution was
voted down by the people in 19 13. But on the whole, de-
cisions have in recent years followed the main principles of the
decision in Atkin v. Kansas.
In private employments, when the element of public safety
is clearly and directly involved, as in legislation regulating
working hours in transportation, the courts have raised but
few objections. Though during the early days of this class
of legislation opinions varied considerably, the close connection
between the safety and welfare of the traveling public and
the physical condition of these employees has now been so
well established that recent decisions almost invariably up-
hold the main principle of hour limitation as a valid exercise
of the police power. Ir a decision given in 191 1 the United
States Supreme Court said: "The length of hours of service
has direct relation to the efficiency of the human agencies
upon which protection to life and property necessarily de-
pends. ... In its power suitably to provide for the safety of
employees and travelers, Congress was not limited to the
enactment of laws relating to mechanical appliances, but it
was also competent to consider, and to endeavor to reduce,
the dangers incident to the strain of excessive hours of duty
on the part of engineers, conductors, train-despatchers, teleg-
raphers, and the persons embraced within the class denned
by the act." 3
Various related questions arise from time to time involving
such points as the definition of emergency, 4 and the liability
1 People v. Grout, 179 N. Y. 417, 72 N. E. 464 (1904).
2 New York, Laws 1906, C. 506. Upheld in People ex rel. Williams
Eng. Co. v. Metz, 193 N. Y. 198, 85 N. E. 1070 (190S).
3 Baltimore and Ohio Railroad Co. v. Interstate Commerce Com-
mission, 221 U. S. 612, 31 S. C. 621 (191 1).
4 United States v. Chicago, Milwaukee and Puget Sound R. R. Co.,
197 Fed. 624 (1912); United States v. Kansas City Southern R. R. Co.,
202 Fed. 828, 121 C. C. A. 136 (1913)-
HOURS OF LABOR 239
of the railroad company in case of accidents connected with
overtime work. The courts have also had to consider the
legality of the so-called "split trick." They have held that
under the federal law the permitted hours of service may be
divided into two parts within the same twenty-four hours. 1
In some cases this rule has led to much practical difficulty in
the enforcement of the law, and a number of cases have been
brought into court in which train crews have had their time
of service extended beyond the maximum sixteen hours by
temporary "releases" at places where trains were delayed
en route. In a recent case the United States Circuit Court
of Appeals for the ninth circuit guarded against an abuse of
this practice by ruling that such a "release," to constitute a
break in the continuity of service, must be sufficiently long to
insure "a substantial and opportune period of rest" under all
circumstances. Whether or not a "release" was for such a
period was a question for the jury to decide in each case. 2
Another important point frequently raised is the division
of jurisdiction between state and federal laws. In case of
conflict between the provisions of a state law and the federal
act, the higher courts fmve practically always given precedence
to the federal act, largely because of the difficulty of separat-
ing interstate from intrastate operations. But where no con-
flict exists both laws may operate at the same time. Among
the later decisions on this subject is a New York case, carried
to the United States Supreme Court, involving the validity
of the New York eight-hour law for train-despatchers. In this
case the New York court held that the act was a valid exer-
cise of the police power, and that no conflict existed between
state and federal authority since the federal law limiting hours
to nine a day "prescribed a general minimum limit of safety
applicable to average conditions throughout the country,"
whereas the New York statute limiting hours to eight a day
"simply supplemented" the federal act by raising the limit
of safety in response to conditions prevailing within the limits
1 United States v. Atchison, Topcka and Sante Fe R. R. Co., 220 U. S.
37, 31 Sup. Ct. 362 (191 1). In this d» i ion the United States Supreme
Court upheld the practice of a railroad company in requiring telegraph
operators to be on duty from 6.30 a.m. to 12 m. and again from 3 to
6.30 P.M.
2 United Slates v. Southern Pacific Co., 220 Fed. 745 (1915).
240 PRINCIPLES OF LABOR LEGISLATION
of the state. 1 On appeal the United States Supreme Court
on May 25, 191 4, gave a unanimous opinion denying the con-
stitutionality of the New York act, as in direct conflict with
the federal act, holding that "Where there is conflict the state
legislation must give way. Indeed, when Congress acts in
such a way as to manifest its purpose to exercise its con-
stitutional authority the regulating power of the state ceases
to exist." 2 On the point made by the New York court that
the state law merely supplemented the federal act, the federal
court said: " It is not that there may be a division of the field
of regulation, but an exclusive occupation of it when Con-
gress manifests a purpose to enter it. . . . It [the federal act]
admits of no supplement ; it is the prescribed measure of what
is necessary and sufficient for the public safety and of the cost
and burden which the railroad must endure to secure it."
Another contention made by the New York court was that
in any case the federal law had not become operative at the
time of the alleged violation, November 1, 1907. But the
federal court said that it "considered it elementary that the
police power of the state could only exist from the silence of
Congress upon the subject and ceased when Congress acted
or manifested its purpose to call into play its exclusive power."
The important question as to whether the New York act was
a valid exercise of the control reserved by the state over cor-
porate charters was also raised in these cases, but no conclu-
sive decision was reached in either court.
The right to limit the working hours of men in mines has
been practically undisputed since the case of Holden v. Hardy
in 1898 upholding the Utah eight-hour law for this group of
workers. 4 This case has such an important bearing upon the
1 People v. Erie R. R. Co., 198 N. Y. 369, 91 N. E. 849 (1910). See
also Smith p. Alabama, 124 U. S. 465, 8 Sup. Ct. 564 (1888).
2 Erie R. R. Co. v. New York, 233 U. S. 671, 34 Sup. Ct. 756 (1914)-
See also Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729 (1913).
3 See also Northern Pacific Ry. v. Washington, 222 U. S. 370, 32 Sup.
Ct. 160 (1912).
4 Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 564 (1898). Immediately
after this favorable decision by the United States Supreme Court, Colo-
rado enacted a law identical with the Utah statute. One year later the
Colorado Supreme Court in an elaborate opinion refused to conform to
the opinion of the United States Supreme Court and declared the act
unconstitutional on the ground that public welfare was not involved,
since only the employee himself is injured by long hours {In re Morgan,
HOURS OF LABOR 241
right to limit the hours of adult men in general employments
that it should be given special attention at this point. In
connection with the custom of passing upon the validity of
state legislation under the fourteenth amendment to the
federal constitution, the court said: "This court has not failed
to recognize the fact that the law is, to a certain extent, a
progressive science; that in some of the states methods of
procedure which, at the time the constitution was adopted,
were deemed essential to the protection and safety of the
people, or to the liberty of the citizen, have been found to
be no longer necessary; that restrictions which had formerly
been laid upon the conduct of individuals, or of classes of in-
dividuals, had proved detrimental to their interests, while,
on the other hand, certain other classes of persons (particularly
those engaged in dangerous or unhealthful employments) have
been found to be in need of additional protection."
Two far-reaching conclusions were set forth in the opinion
given in this case. The first involved the question, Are the
health dangers connected with the occupation of mining suffi-
ciently serious to justify the legislature in separating out this
class of employees and interfering with the right of free con-
tract under the police power of the state? On this point the
court said: "But if it be within the power of a legislature to
adopt such means (provisions for proper ventilation, speaking-
tubes, protection of cages, etc.) for the protection of the lives
of its citizens, it is difficult to see why precautions may not
also be adopted for the protection of their health and morals.
It is as much for the interest of the state that the public
health should be preserved as that life should be made secure.
. . . While the general experience of mankind may justify us
in believing that men may engage in ordinary employments
more than eight hours per day without injury to their health,
26 Colo. 415, 58 Pac. 1071 (1899). So determined were the miners of
Colorado to have the shorter workday guaranteed them by legislation
that they succeeded in 1902 in securing an amendment to the constitu-
tion providing for the eight-hour day (Art. 5, Sec. 25a). Despite this
fact, it was not until 1905 that the legislature finally enacted an eight-
hour law. But not until 191 1 was an enforceable act passed which
was, however, immediately subjected by the efforts of the operators to a
referendum vote. Not until 19 13 was the question finally settled and
an effective act in force. These unfortunate events have played no small
part in creating the notorious situation recently existing in Colorado.
10
242 PRINCIPLES OF LABOR LEGISLATION
it does not follow that labor for the same length of time is
innocuous when carried on beneath the surface of the earth,
where the operative is deprived of fresh air and sunlight, and
is frequently subjected to foul atmosphere and a very high
temperature, or to the influence of noxious gases generated
by the processes of refining or smelting."
The second conclusion relates to inequality of bargaining
power, already treated in Chapter I.
As to regulation of men's hours in general factory employ-
ments, before further widespread gains can be secured through
the legislative method more definite information as to the
health dangers of excessive hours must be obtained, so that
greater encouragement will be given to legislators by the
higher courts of the land. Up to the present time court de-
cisions have been so varied that great uncertainty exists as
to the possibilities of the legal limitation of hours for adult
males.
The early unenforceable eight- and ten-hour laws were gen-
erally upheld by the courts, but when Nebraska in 1S91 at-
tempted to make such a law enforceable by requiring double
pay for all work in excess of eight hours, farm and domestic
labor being excluded, the law was declared unconstitutional
by the supreme court of the state in 1S94 both on the ground
of class legislation and as an interference with the right of
free contract. 1
The only case directly concerned with the work of adult
males in factories or workshops to reach the United States
Supreme Court is the bakers' case of Lochner v. New York. :
The decision in this case overthrew an earlier decision of the
New York Court of Appeals 3 upholding the constitutionality
of a ten-hour law for all bakery employees. In upholding the
act as a legitimate use of the police power in protecting the
welfare of the state', the New York court said: "Again, many
medical authorities classify workers in bakeries or con-
fectioners' establishments with potters, stone-cutters, file-
1 Low v. Reese Printing Co., 41 Neb. 127, 59 N. W. 362 (1894).
2 Lochner v. New York, 198 U. S. 45. 25 Sup. Ct. 539 (1905)-
3 People v. Lochner, 177 N. Y. 145, 69 X. E. 373 (1904)- It is interest-
ing to note that in both courts the decisions were reached by majorities
of only one, making altogether eight judges in favor of the constitutional-
ity of the law and eight against it.
HOURS OF LABOR 243
grinders, and other workers whose occupation necessitates the
inhalation of dust particles and hence predisposes its members
to consumption. The published medical opinions and vital
statistics bearing upon that subject standing alone fully justify
the section under review as one to protect the health of the
employees in such establishments."
A careful reading of the opinion of the federal court dis-
closes the fact that the court did not feel that sufficient evi-
dence was presented to it indicating the injurious effects upon
the health of the men who work long hours in bakeries to
justify the state in singling out bakers and interfering with
their freedom of contract. "Viewed in the light of a purely
labor law," said the court, "with no reference whatever to
the question of health, we think that a law like the one before
us involves neither the safety, the morals, nor the welfare,
of the public, and that the interest of the public is not in
the slightest degree affected by such an act. The law must
be upheld, if at all, as a law pertaining to the health of the
individual engaged in the occupation of a baker. . . . We think
that there can be no fair doubt that the trade of a baker, in
and of itself, is not an unhealthy one to that degree which
would authorize the legislature to interfere with the right to
labor, and with the right of free contract on the part of the
individual, either as employer or employee." In view of
more recent decisions of the federal court the opinion has fre-
quently been stated that a similar case might now be decided
in the affirmative, particularly if sufficient evidence concern-
ing health dangers of the trade existed and were presented
to the court in a thorough and scientific manner. 1
In 191 2 the Supreme Court of Louisiana declared an hour
law unconstitutional on the grounds of unwarranted classifica-
tion of industries. This act limited the hours of stationary
firemen to eight a day in manufacturing or business establish-
ments, offices, or warehouses operating day and night, but
exempted certain other industries, as the petroleum, saw-
mill, and cotton-gin industries, and sugar plantations. 2 This
classification of industries appeared to the court to be purely
1 On the subject of judicial investigation, see Chapter IX, "Admin-
istration."
2 Louisiana, Laws 1912, No. 245.
244 PRINCIPLES OF LABOR LEGISLATION
arbitrary, since it was difficult to see why long hours were
not as injurious in sawmills as in warehouses or offices. On
this point the judge said: "There is no suggestion in the
record that the occupation of stationary firemen is dangerous
or unhealthy to such a degree as to warrant the'interference
of the state. . . . The toil per se could not have warranted the
interference of the legislature because it permitted unlimited
toil in the plants excepted from the operation of the act.
Whatever may have been the motive for the passage of the
act, we are satisfied that it was not based on health con-
siderations." 1
Here again the court did not feel that sufficient evidence
was presented to justify the classification of industries as
contained in the law, and after this decision the legislature
amended the original law, making it apply to all stationary
engineers in cities with a population of 50,000 or more. 2
The Mississippi law of 191 2, 3 limiting hours of all employees
engaged in manufacturing or repairing to ten a day, but ex-
cepting cases of emergency or public necessity, was taken to
the state supreme court three different times and was each
time upheld. The court held that it was not bound by
Lochner v. New York, since in the law decided against in
that case no provision was made for emergencies under which
the "lightest violation of the provisions of the act would be
innocent." The court also called attention to the physical
and mental strain of present-day industry as compared with
earlier methods and declared: "It is also well known that in
the progress of society the relations between employer and em-
ployee have changed. Such law as that before us in the in-
stant case may not have been needed half a century ago, but
may be needed at the present time. ... It is well known that,
in the work connected with the running of machinery, the
operator is subjected to a mental as well as physical strain.
In many cases the nearness to machinery makes the work
dangerous in case of an overtaxing of the strength of the
worker, or any lessening in his alertness. We can readily
understand that all this was in the minds of the legislature
1 State v. Barba, 32 La. 768, 61 So. 784 (1913)-
2 Louisiana, Laws 191 4, No. 201.
3 Mississippi, Laws 1912, C. 157.
HOURS OF LABOR 24s
when the law now under discussion was considered. Besides,
it would not be unreasonable for the legislature to decide
that it would promote the health, peace, morals, and general
welfare if they were not permitted to extend their labor over
ten hours a day, and the legislature could also decide that the
best interests of the people in the state would be promoted by
limiting the time of work of this numerous class of its citizens
to the time mentioned. In fact, when we consider the present
manner of laboring, the use of machinery, the appliances,
requiring intelligence and skill, and the general present-day
manner of life, which tends to nervousness, it seems to us quite
reasonable, and in no way improper, to pass such a law so
limiting a day's labor." 1
One of the few instances where a court has specifically recog-
nized the right to leisure occurred in this case, when the court
said: "We pause here to remark the notable fact that it is rare
for the seller of labor to appeal to the courts for the preserva-
tion of his inalienable rights of labor; this inestimable privi-
lege is generally the object of the buyer's disinterested solici-
tude. Some day, perhaps, the inalienable right to rest will
be the subject of litigation, but as yet this phase of individual
liberty has not sought shelter under the state or federal con-
stitutions."
In 1914 the Oregon Supreme Court upheld the state ten-
hour law for adult males in factories. 2 The case was then ap-
pealed to the United States Supreme Court, but was still
pending in the autumn of 1915. The decision will be the first
by this court on an hour law for men in general employments,
and will to a large extent define their constitutional status.
If it follows its own opinion in the case of Holden v. Hardy, 3
declaring the inequality of bargaining power between em-
ployer and employee, the way is probably opened for much
greater regulation of the work of adult males than has here-
tofore been undertaken in this country. Equality of bargain-
ing power may be secured in some cases by freeing labor or-
1 State v. J. J. Newman Co., 103 Miss. 263, 59 So. 923 (1912).
2 State v. Bunting, 71 Ore. 259, 139 Pac. 731 (19141.
3 See p. 27. See also Adair v. United States, 208 U. S. 161. 28 Sup.
Ct. 277 (1908); State v. Browne and Sharpe Mfg. Co., 18 R. I. 16, 25
Atl. 246 (1892); Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct.
1 (1901).
246 PRINCIPLES OF LABOR LEGISLATION
ionizations from existing restrictions upon acts, not in them-
selves unlawful, which are necessary to carry out effectively
the purposes of organization. 1 But where organization fails
to protect any considerable group of workers or where this
protection is not provided in a reasonable manner, the sub-
stitution of the power of the state becomes a justifiable and
necessary interference with the right of free contract, for the
protection of health, welfare, and citizenship. Such inter-
ference, an analysis of the various decisions shows, has been
generally held legitimate by the courts.
2. Rest Periods
In spite of the considerable development of maximum
hour legislation in this country, only slight attention has been
paid — except for the recent agitation for one day of rest in
seven and some efforts to exclude women and children from
night work — to the important question of legal rest periods.
(j) Daily Rest and Meal-times
The most common form of legal requirement for daily rest
periods in private employments is found in the laws regulating
hours of labor for women. A number of states merely specify
that from one-half hour to one hour shall be allowed for the
noon meal. Under such laws, which do not restrict the num-
ber of hours of continuous employment, women have been
employed with no time for rest and meals for periods so long
as to be definitely harmful to their health. Several states
therefore make the provision more effective by prescribing
that the noon rest period shall be given after six or six and
one-half hours' work. If overtime is worked in the evening,
a few states require a rest period of twenty or thirty minutes
after 6 or 7 p.m. Most of the laws apply to all females and
a few apply both to boys and to girls, but the inclusion of
adult men workers is very rare.
1 See " Justification of True Collective Bargaining," pp. 115-118.
HOURS OF LABOR 247
In addition to the noon rest period a few employers have
voluntarily granted to employees, especially to women, a
fifteen- or twenty-minute rest in the middle of the morning
and again in the afternoon; but no legal regulations to this
effect exist in America. In European countries, however, the
beneficial effects of these shorter breaks in the workday have
been recognized in legislative enactments. In Belgium, for
instance, women in fruit-preserving must be allowed at least
fifteen minutes' rest in every five-hour work period in addition
to the noon rest. In the chocolate and confectionery industry
a second rest period of fifteen minutes in addition to the noon
rest must be allowed if the working day is between nine and
ten hours long, and a third rest period of the same length
must be given if the hours exceed ten. Such rest periods may,
under the increasing strain and complexity of modern industry,
add much to both the physical welfare and the efficiency of
the worker.
For men workers in America a daily rest period is oc-
casionally required by laws in the interest of health or public
safety. Thus a daily rest period as well as the maximum limit
of daily hours is fixed by law for railroad employees. Train-
men must be allowed ten hours' rest after sixteen hours' con-
secutive employment, but if they have been at work for an
aggregate of sixteen hours with brief intervals between, the
rest period need be only eight hours. Several states make no
distinction between consecutive and aggregate employment,
but set a fixed period of eight or ten hours' rest after sixteen
hours of work, while a few other states require this rest period
after thirteen, fourteen, or fifteen hours on duty. In addition
a few states, including Massachusetts, Maryland, and New
York, have enacted laws requiring that telegraphers, switch-
men, and others directing the movement of trains be given a
rest period of twenty-four consecutive hours twice eaeli
month, without reduction of pay. 1 In New York and New
1 The New York law was, however, held unconstitutional by the state
appellate division, third department, in People v. N. Y. C. & H. R. R. R.
Co., 163 App. Div. 79 (1914), on the ground laid down by the United
States Supreme Court in Erie R. R. Co. v. New York, 233 U. S. 671, 34
Sup. Ct. 756 (1914), that "there can be no valid state legislation covering
the same field where the federal authority has asserted its right to act,"
(See p. 239.)
248 PRINCIPLES OF LABOR LEGISLATION
Jersey, where tunnel and caisson operations have been scien-
tifically regulated, the hours of workers in compressed air
must be equally divided by a rest period varying in length
from one-half hour to five hours, according to the degree of
air pressure. 1
(2) Night Work
Night work legislation applies only to women and minors,
there being no regulation of the work of adult men in this
respect.
The investigations of the International Association for Labor
Legislation, begun in 1901, showed that serious physical and
moral dangers surrounded the work of women at night. It was
clearly demonstrated that recovery from fatigue is obtained
mainly through rest and sleep, and that sound sleep can
rarely be secured in the daytime, especially in the noisy and
crowded homes of many working people in industrial cities.
The lack of sunlight tends to produce anaemia and tuberculosis
and to predispose to other ills. Night work brings increased
liability to eye strain and accident. Serious moral dangers
also are likely to result from the necessity of traveling the
streets alone at night, and from the interference with normal
home life. From an economic point of view, moreover, the
investigations showed that night work was unprofitable, being
inferior to day work both in quality and in quantity. Wher-
ever it had been abolished, in the long run the efficiency both
of the management and of the workers was raised. 2 Further-
more, it was found that night work laws are a valuable aid
in enforcing acts fixing the maximum period of employment.
As a result of these investigations, the association called,
through the Swiss Federal Council, in Berne, in 1906, a con-
ference on woman's night work. This conference was at-
tended by representatives of fourteen leading European pow-
ers, 3 and an international convention was drawn up by which
1 See table, p. 236.
2 See the brief in the ease of People v. Charles Schweinler Press, by-
Louis D. Brandeis and Josephine Goldmark, pp. 260-307.
3 Austria, Hungary, Belgium, Denmark, France, Germany, Great
Britain, Italy, Luxemburg, Portugal, Spain, Sweden, Switzerland, and
the Netherlands.
HOURS OF LABOR 249
the various countries agreed to provide as soon as possible that
women industrial workers over eighteen be allowed at least
eleven consecutive hours of rest at night, seven of which must
fall between 10 p.m. and 5 a.m. In practically all of the signa-
tory countries the necessary legislation was enacted and the
prohibition was in force by January 1, 191 2. A number of
other states and dependencies have passed similar legislation.
Even in India the night work of women in factories is for-
bidden between 7 p.m. and 5.30 a.m.; Argentina forbids it
between 9 p.m. and 6 a.m. Several of the signatory states
have enacted legislation far beyond the provisions of the
treaty. France, Belgium, and Spain, for instance, have for-
bidden many kinds of industrial work between 9 p.m. and
5 a.m., and in Holland the prohibited hours are between 7 p.m.
and 6 a.m. Most of these European countries permit excep-
tions under certain conditions, especially when a delay in
handling perishable materials would cause great financial
loss, but such exceptions are as a rule very carefully safe-
guarded.
The backwardness of America in prohibiting night work
forms a striking contrast to the activity of Europe, the
American states forbidding such work by women being less
than ten in number. 1 Massachusetts was the pioneer, for-
bidding in 1890 the employment of women in manufacturing
and mechanical establishments between 10 p.m. and 6 a.m. 2
In 1907 the law was extended to forbid work in textile mills
between 6 p.m. and 6 a.m. 3 — the strictest regulation found in
the United States. Not one of these statutes, however, is
an inclusive night work prohibition. The Indiana law, for
example, applies only to factories, 4 while the South Carolina
law applies only to stores. 5 New York, by two separate
statutes, covers both stores and factories, 6 while Nebraska
covers a wider range of employment by including also laun-
dries, hotels, restaurants, and offices. 7 There is no statute
1 Connecticut, Indiana, Massachusetts, Nebraska, New York, Oregon,
Pennsylvania, and South Carolina.
- Massachusetts, Laws 1890, C. 183. 3 Ibid., Laws 1907, C. 267.
4 Indiana, Annotated Statutes 1908, Sec. 8021.
6 South Carolina, Code 19 12, Sec. 430.
•New York, Laws 1913, C. 83; Laws 191.4, C. 331.
7 Nebraska, Statutes 1907, Sec. 6940 (as amended by Laws 1913, C. 151).
250 PRINCIPLES OF LABOR LEGISLATION
law in Oregon forbidding night work, but the industrial wel-
fare commission, by administrative order, has forbidden it
in stores, factories, and laundries. 1
In some cases, however, these laws are so worded as to
prove unenforceable. In Connecticut, for example, the law
simply forbids the employment of women in certain lines of
work "after ten o'clock in the evening." 2 Therefore a manu-
facturer believed that he was observing the letter of the law
by requiring women to stop work at 10 p.m., but putting
them to work again from midnight till early morning. 3 It is
necessary that the law to be effective specify the entire period
during which work is forbidden.
Another small group of states recognize the strain of em-
ployment at night for women and seek to discourage it by
shortening the period which may be so worked. The Mary-
land statute is typical of this class of legislation. While by
day women may work up to ten hours, if any part of their
work falls between 10 p.m. and 6 a.m. the hours of employ-
ment are limited to eight. 4 With these exceptions, which
are confined to a few states and a few industries, the night
work of women is entirely unregulated in America.
Perhaps the slow progress of American laws forbidding night
work of women may be in part accounted for by the unfavor-
able attitude of certain of the courts. In 1907, eight months
after the international agreement to forbid night work, the
New York State Court of Appeals declared such a prohibition
unconstitutional. 5 The doctrine of entire freedom of con-
tract between employer and employee applying alike to men
and to women was emphasized and the court was unable to
trace any connection between the law and the promotion of
health. No account was taken of inherent sex differences
between men and women. Since this decision legislatures have
naturally been reluctant to pass night work laws. However,
as the dangers of night work for women become more widely
1 Industrial Welfare Commission of Oregon, Orders No. 3 and 5.
2 Connecticut, Laws 1913, C. 179- Tj _ . . ,
3 See Report of the State Factory Inspector, 1914, p. 29. It is reported
that this practice became general in munition plants during the boom
of 1915.
4 Maryland, Public General Laws 191 1, Sec. 14.
f* People v. Williams, 189 N. Y. 131, 81 N. E. 778 (1907).
HOURS OF LABOR 251
known, judicial opinion seems to be changing in respect to
the constitutionality of prohibiting it. A brief by Mr.
Brandeis and Miss Goldmark, bringing out the facts, was pre-
sented in defense of the new night work law passed by New
York in 1913. The highest state court, the court of appeals,
unanimously reversed its former decision, and taking cog-
nizance of the facts presented to it in regard to modern in-
dustrial conditions, upheld the law as a necessary protection
to the health of women, both for their own sakes and for the
sake of posterity. 1 The case was then carried to the United
States Supreme Court, where it was pending in the fall of
1915-
The injurious effects of night work are even more pronounced
on children, whose strength and powers of resistance are not
fully developed, than they are on women workers. Children
are, however, fortunately better protected in this respect than
women, there being no constitutional difficulty in their case.
About forty states have prohibited the night work of children
under sixteen, generally between 7 p.m. and 6 a.m., and in
addition, in Washington, where there were no statutory re-
strictions except in bake-houses, the industrial welfare com-
mission by administrative orders forbade the night work of
minors under eighteen in laundries and telephone and tele-
graph offices. The greatest abuses in connection with the
night work of children have been found in textile mills and
glass works, and on account of the strong opposition of the
manufacturers the states where conditions were worst have
frequently been the last to pass the necessary legislation.
However, by 19 15 all the northern textile states forbade the
work of children at night, and West Virginia was the only
important glass-manufacturing state which still allowed chil-
dren under sixteen to work on night shifts.
(3) Saturday and Legal Holidays
While more than a dozen states have made Saturday after-
noon a legal holiday, few, if any, have made effective pro-
1 People v. Charles Schwcinler Press, 214 N. Y. 395 (1915). See also
Chapter IX, "Administration."
252 PRINCIPLES OF LABOR LEGISLATION
vision for the enforcement of this or other laws fixing legal
holidays. The extension of the Saturday half-holiday in
private employment during recent years is often due to vol-
untary action by employers. The short workday on Satur-
day is more often found in summer than in winter, and more
often among clerical and mercantile Y than among industrial
workers. Occasionally strong labor organizations, such as
those in some of the building trades, have secured the forty-
four hour week, which means the Saturday half-holiday.
But probably women's hour laws have been one of the
strongest single influences in securing, though indirectly, a
shorter workday on Saturday to certain workers. During the
past decade many efforts to improve standards took the form
of cutting down the sixty-hour week, though still retaining
the ten-hour day; this in actual operation often meant a
Saturday half-holiday. Over a dozen states are still found
which allow ten or eleven hours of work daily, but set a
weekly limit of fifty-four to fifty-eight hours. 2 Several laws
also permit an increase in daily hours to secure a shorter work-
day one day in the week.
In public employment, as in private, the Saturday half-
holiday has become a common custom for clerical employees.
In addition, a few laws are found extending it to laborers as
well. For instance, Massachusetts in 19 14 by popular vote
provided a Saturday half-holiday without loss of pay for
all laborers, workmen, and mechanics employed permanently
by the state or by any of its boards or commissions.
In continental Europe the working week of five and a half
days is generally known as "the English week" because it
is more widely enforced by law in England than in any other
country. Thus in Great Britain laws are found forbidding
the employment of women and young persons on Saturday
after 1 p.m. in textile mills, and for more than eight hours in
1 The Consumers' League has been especially active in securing the
Saturday half-holiday for salesgirls. In 1914 it for the first time induced
most of the large New York stores to close all day Saturday during July
and August.
2 Connecticut, Delaware, Massachusetts, Michigan, Minnesota (mer-
cantile), New Hampshire, Ohio, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Vermont, Wisconsin, Wyoming. See "Women's
Hours," p. 215.
HOURS OF LABOR 253
non-textile factories and workshops. So important is the
Saturday half-holiday considered in Europe that it was pro-
posed as a subject for international treaty at the latest meet-
ing of the International Association for Labor Legislation in
1912.
(4) One Day of Rest in Seven
It has been pointed out l that under modern industrial
conditions many thousands of wage-earners are obliged to
work seven days a week, a practice which deprives them of
proper leisure and tends to break down their health. Remedial
legislation in the United States has been of two kinds. The
type of law found in nearly all the states is a descendant of
the old Puritan "blue laws" and attempts to forbid all Sun-
day work, primarily from religious motives. Such laws,
however, drafted before the rise of modern industry, general-
ly fail to protect either the worker or the Sabbath. Many of
them are meaningless because filled with exceptions; others
remain dead letters on the statute books; all fail to provide
proper means of enforcement. A few enforceable laws have
been passed prohibiting Sunday employment in a single occu-
pation, generally that of bakers or barbers, but have generally
failed in their purpose because the courts have tended to^ de-
clare them unconstitutional as making an arbitrary classifica-
tion of industries, which violates the equal protection clause
of the fourteenth amendment to the federal constitution. 2
But it is hardly practicable or desirable, at the present day,
to realize the aim of the old-time Sunday law and stop all Sun-
day work. Public necessity demands the continuous operation
of such services as telephone and telegraph lines, heat, light
and power plants, steam and electric railways, and hotels and
restaurants. Another large group of industries, important
among which are iron and steel works, cement factories, paper
and pulp, flour and grist mills, usually operate continuously
on account of technical requirements or sometimes simply for
1 See p. 201.
2 See Lindley M. Clark, "Labor Laws Declared Unconstitutional,"
United States Bureau of Labor, Bulletin No. gi, November, 1910, pp.
951^52.
254 PRINCIPLES OF LABOR LEGISLATION
economy. To remedy this situation an entirely new form of
law has been devised which recognizes that much seven-day
work is a necessity and that the objectionable feature is the
seven-day worker. This type of law, therefore, simply re-
quires that all employees be given a weekly day of rest, those
employed on Sunday being given a free day at some other
time in the week. Since such a law generally necessitates an
addition of one-sixth to the working force, it tends to elimi-
nate all unnecessary seven-day labor at the same time that
it secures to every workman a weekly rest day.
This modern legislative movement began in Switzerland,
where a law was passed in 1890 requiring each railway em-
ployee to be given, without loss of pay, fifty-two weekly rest
days each year, seventeen of them to fall on Sunday. Be-
ginning at about 1905 enforceable rest-day measures were
enacted in almost all the leading European countries. 1 These
laws generally name Sunday as the day of rest, but permit
the operation of continuous industries on that day provided
every employee gets some other day in the week free. As
with many other classes of European labor legislation, only
the general principle is laid down in the laws and special
extensions or exceptions are largely determined by adminis-
trative rulings. 2
In America four states and the federal government have
passed laws embodying this principle of one day of rest in
seven. The federal law applies only to post office employees. 3
The California and Connecticut statutes are nullified by ex-
empting "any case of emergency," 4 and in addition the Con-
necticut law specifically excepts a long list of occupations.
There remain the Massachusetts and New York acts of 1913, 5
which are similar in character and represent the most effec-
1 The list of foreign countries with such laws includes Austria, Bos-
nia and Herzegovina, Denmark, France, Germany, Italy, Portugal,
Roumania, Spain, Switzerland, British India, Canada, Cape of Good
Hope, Chile, and Argentina. (See New York State Department of
Labor, Bulletin N0.4Q, December, 191 1, "Rest-Day Legislation Abroad,"
John A. Fitch. See also Bulletins of the International Labor Office.)
2 These orders and decrees may be found in detail in the Bulletins of
the International Labor Office.
3 United States, Laws 1911-1912, C. 389, Sec. 5.
4 California, Code 1906, p. 722; Connecticut, Laws 191 1, C. 162.
6 Massachusetts, Laws 1913, C. 619; New York, L^ws 1913, C. 740.
HOURS OF LABOR 255
tive rest-day legislation yet passed in the United States.
Both apply to factories and mercantile establishments only,
but exclude janitors, watchmen, superintendents, foremen in
charge, employees caring for live animals, maintaining fires
or making repairs to boilers or machinery, and employees
working not more than three hours on a seventh day in setting
sponges in bakeries. In addition Massachusetts excludes a
long list of such occupations as those connected with news-
paper work, restaurants, drug stores, livery stables or garages,
the sale or distribution of gas, electricity, or milk, or any
emergency which could not reasonably have been expected,"
and New York excludes workers in milk and cheese plants
with not more than seven employees. New York furthermore
provides that if there are practical difficulties or unnecessary
hardships in carrying out the law, the industrial commission
may make variations "if the spirit of the act be observed
and substantial justice done," and if the variations apply to
all cases in which conditions arc substantially the same. 1 An
earlier amendment giving the commissioner of labor power to
exempt necessarily continuous processes in which no one was
employed for more than eight hours a day was declared un-
constitutional by the court of appeals on the ground that it
constituted a delegation of legislative power. 2 As an aid to
enforcement employers in both states must post a schedule
containing a list of employees who are to work on Sunday
and designating the day of rest given them.
Investigations carried on by the American Association for
Labor Legislation 3 in these states after the law had been in
force a year showed that its provisions were being generally
observed and that many employees who had previously been
obliged to work seven days a week were obtaining a weekly
rest day without undue hardship to industry.
Women and children arc also sometimes protected from
seven-day labor through the provisions of those maximum
hour laws which limit work to six days a week; other stat-
utes seek to insure a weekly rest day by fixing weekly
hours at six times daily hours or less. A few women's hour
1 New York, Laws 1915, C. 648.
- People p. Klimk Packing Co., 214 X. Y. 121, 108 N. E. 278 (1915).
3 American Labor Legislation Review, December, 1914, pp. 615-626.
256 PRINCIPLES OF LABOR LEGISLATION
laws, however, leave the way open for seven-day labor by
setting a daily but not a weekly limit, and one state, Arizona, 1
invites it by making the weekly working period seven times
the permitted daily hours.
It has been pointed out that Sunday laws applying to
single occupations have sometimes been set aside as class
legislation. General Sunday laws, however, have almost
universally been upheld by the higher courts. Two distinct
lines of reasoning have been followed. In the first half of
the nineteenth century, beginning with a New York case in
1811, 2 the constitutionality of the laws was seldom directly
involved, but was assumed on religious grounds in connec-
tion with the settlement of such questions as the scope of
their application, the validity of contracts made on Sunday,
the definition of "works of necessity or charity," or the classi-
fication of employments. In 1844 in North Carolina a case
first came up which was sustained on the grounds of the police
power of the state. For the next twenty years both lines of
reasoning found their way into court decisions, but since
1866 the state courts in sustaining these laws have relied al-
most entirely upon the police power, and all acts passed upon
by the federal Supreme Court have been upheld on this same
ground. 3
Representative of the reasoning by which Sunday laws
have been held a legitimate exercise of the police power is
the opinion of the state supreme court in Hennington v.
Georgia, 4 later quoted by the United States Supreme Court:
"There can be no well-founded doubt of its being a police
regulation, ... for the frequent and total suspension of the
toils, cares, and strain of mind or muscle incident to pursuing
an occupation or common employment is beneficial to every
individual, and incidentally to the community at large, the
general public. Leisure is no less essential than labor to
the well-being of man. Short intervals of leisure at stated
Arizona, Penal Code 1913, Sec. 717.
2 People v. Ruggles, 8 Johnson's Rep. (N. Y.) 290 (181 1).
3 As late as 191 5 a general Sunday law was attacked in Oregon as class
legislation and as a violation of the fourteenth amendment, but was up-
held by the state supreme court (State v. Nichols, 151 Pac. 473)-
4 Hennington v. State, 90 Ga. 396, 17 S. E. 1009 (1892); Hennington v.
Georgia, 163 U. S. 299, 16 Sup. Ct. 1086 (1896).
HOURS OF LABOR 257
periods reduce wear and tear, promote health, favor cleanli-
ness, encourage social intercourse, afford opportunity for
introspection and retrospection, and tend in a high degree
to expand the thoughts and sympathies of people, enlarge
their information, and elevate their morals.
"If a law which, in essential respects, betters for all the
people the conditions, sanitary, social, and individual, under
which their daily life is carried on and which contributes to
insure for each, even against his own will, his minimum
allowance of leisure, cannot be rightfully classed as a police
regulation, it would be difficult to imagine any law that
could."
The new one-day-rest-in-seven laws have been so recently
passed that in only one state has a test case reached a higher
court. A priori it would seem that these laws could be sus-
tained as police power regulations as the Sunday laws have
been, and in the main such a position was taken by the New
York State Court of Appeals on February 5, 191 5. The
court said: l "Can we say that the provision for a full day of
rest in seven for such employees is so extravagant and un-
reasonable, so disconnected with the probable promotion of
health and welfare, that its enactment is beyond the juris-
diction of the legislature? . . . We have no power of decision
of the question whether it is the wisest and best way to off-
set these conditions and to give to employees the protection
which they need, even if we had any doubt on that subject.
Our only inquiry must be whether the provision on its face
seems reasonable, fair, and appropriate, and whether it can
fairly be believed that its natural consequences will be in the
direction of the betterment of public health and welfare, and
therefore that it is one which the state for its protection and
advantage may enact and enforce." The classifications made
by the act have likewise been upheld, as meeting the actual
conditions of modern industrial life. Its limitation to em-
ployees of factories and mercantile establishments was rea-
sonable because "We know as a matter of common obser-
vation that such labor is generally indoors and imposes that
greater burden on health which comes from confinement
1 People v. Klinck Packing Co., 214 N. Y. 121, 108 N. E. 278 (1915)-
17
a$8 PRINCIPLES OF LABOR LEGLSLATION
many times accompanied by crowded conditions and impure
air." The exemption of dairies, creameries, and similar plants
employing not more than seven workers was also reasonable,
because of the perishable nature of the product, the heavier
burden of the necessary increase in the force of a small estab-
lishment, and because of the closer personal relation between
employer and employee and lessened strain in such small es-
tablishments. The power given to the commissioner of labor
to exempt continuous industries in which daily hours were not
more than eight, was, however, held to be an unconstitutional
delegation of legislative power. Thus the attitude of the
courts is apparently favorable to the extension of laws secur-
ing industrial workers a weekly day of rest.
(5) Annual Vacations
The average salaried worker would consider himself ill-used
if he failed to receive an annual paid vacation of two weeks
or more. But ordinarily no such provision is made for the
wage-earner. 1 In this respect employees of state and federal
governments fare better than workers in private employment.
About half a dozen states have laws providing annual vaca-
tions for several classes of employees. Representative of
these is the California statute, which allows an annual vaca-
tion of fifteen days with pay to all regular employees of state
hospitals, state commissions and boards, and the state print-
ing-office. 2 The federal government likewise provides annual
paid leaves of absence for several classes of employees, in-
cluding the employees of the Bureau of Engraving and Print-
ing, and the Government Printing Office, workers in navy-
yards, gun factories and arsenals, and railway postal clerks.
In Massachusetts in 19 14 an act providing a fortnight's paid
vacation for laborers employed by cities and towns was sub-
mitted to popular vote and accepted by over half of the cities
and towns of the commonwealth. Another method some-
1 In May, 191 5, the Milk Wagon Drivers' Union of Chicago signed an
agreement with their employers which included a provision for two
weeks' annual vacation with pay. This is said to be the first such pro-
vision in a signed trade agreement.
2 California, Laws 1909, C. 250, Sec. 1.
HOURS OF LABOR 259
times used to secure vacations to city employees is that of
inserting such provisions in city charters. For example, the
New York City charter gives executive heads at their dis-
cretion power to grant employees annual vacations of not
less than one week, but per diem employees may not be given
more than two weeks.
Laws requiring annual vacations have in this country cov-
ered only public employment, but in Europe they have some-
times been extended to private industry as well. Thus in the
canton of Berne, Switzerland, every woman who has been
employed on time rates in the same business for more than
one year must be given six consecutive holidays with pay,
after the second year's work eight holidays, after the third
year ten days, and after the fourth year twelve days. An-
other method of providing vacations sometimes used abroad
is the insertion of labor clauses in public service franchises.
For instance, the subway franchise in Paris requires that all
employees be given ten days' vacation annually with pay.
The foregoing discussion indicates that legal regulation of
the working hours and of the rest periods for the different
classes of employees in America has tended toward uniform
provisions, the same limitations usually being applied to all
industries covered by the law. In European countries, on
the other hand, in addition to broad maximum and minimum
regulations, frequent use is made of the method of determin-
ing the length of the work and rest periods in accordance with
the special hazards of each industry or occupation. Scientific
adjustment of hours of labor requires thorough and often con-
tinued investigations of actual conditions, and should com-
bine the practical knowledge of workers and employers with
the technical knowledge of experts. In many occupations
dusts and gases, poisons, or extreme temperatures, make it
safe to work consecutively for only short periods. 1 The pres-
ence in America of hazardous industries fraught with danger
to the life and health of thousands of employees working long
hours and frequently seven days a week, but as yet unregu-
1 The strike in the oil plants of Bayonne, N. J., for instance, during
the summer of 191 5, brought to public knowledge the work of the still-
cleaners who must toil in a temperature of 200 F. cleaning the huge vats
in which oil is refined.
2 6o PRINCIPLES OF LABOR LEGISLATION
lated either by trade organizations or by state control, indi-
cates the need for a system whereby permanent bodies will
be authorized to investigate scientifically such conditions of
employment and fix varying hours of labor on a basis which
will adequately protect the health and welfare of the em-
ployees and the state. The fact already noted, that in some
of the leading states of the country industrial boards or com-
missions have lately been created with authority to make
special investigations and to regulate hours in the various
industries, is significant of the direction which future progress
may be expected to take. 1
, l See Chapter IX, "Administration.
CHAPTER VI
UNEMPLOYMENT
A careful canvass in March and April, 191 5, of about 400,000
families in fifteen American cities showed 11.5 per cent, of
the wage-earners unemployed and an additional 16.6 per cent,
working only part time. A similar investigation in New York
City earlier in the year indicated that 18 per cent, of the
wage-earners were unemployed, and it was estimated that
the total army of unemployed wage-earners in New York City
at that time numbered about 44 2, 000. l The United States
Census for 1900 showed that 6,468,964 working people, or
nearly 25 per cent, of all engaged in gainful occupations, had
been unemployed some time during the year. Of these,
3,177,753 lost from one to three months' work each : 2,554,925
lost from four to six months each; 736,286 lost from seven to
twelve months each. 2
The employee's loss from this irregularity of work is two-
fold. Besides his enormous immediate loss in wages and
the resulting distress, there is the equally serious loss in the
weakening of moral fiber which comes with uncertainty, habits
of irregular work, and occasional lapses into destitution. Un-
employment is a culture bed for pauperism and all its accom-
panying evils.
Moreover, in addition to the losses by employees is the
direct financial loss to employers through the expense of
"hiring and firing." A number of employment managers
recently estimated the cost of hiring and "breaking in" a
new employee at from $50 to $200; in only one case was the
1 United States Bureau of Labor Statistics, Bulletin No. 172, 191 5, p. 7.
2 Similar data were collected by the government in 19 10, but are still
unpublished.
a6a PRINCIPLES OF LABOR LEGISLATION
estimate as low as $30. A machine-tool builder to whom the
matter had been suggested declared after a careful study of
his plant thai the hiring of 1,000 new persons in one year,
while the permanent additions to his force were fewer than
fifty, had reduced his profits by at least $150,000, or about
Si 50 for each new worker hired. 1 When many factories are
known to hire as many as 1 ,000 men a year to keep up a per-
manent force of 300, the magnitude of the resulting waste
becomes apparent.
Even this general statement of the wastes of unemploy-
ment indicates the imperative need of preventive measures.
Hence we are asking with increasing insistence, is unemploy-
ment a necessary evil? If not, to what extent is legislation
a solution?
In Chapter I it was suggested that unemployment may be
denned as the failure to make a labor contract. This failure
may be traced to one of three causes: (1) cessation of work
arising from trade disputes; (2) unemployability, or disability,
owing to sickness, old age, or other personal conditions; and
(3) inability of men who are willing and able to work to find
employment.
The present discussion relates only to the third part of
the whole problem of idleness. Legislation intended to mini-
mize idleness due to labor disputes is discussed in Chapter
III. The problems of unemployability and unemployment
are by no means identical, but are related to the extent that
much chronic unwillingness to work has resulted from the
demoralizing influence of unemployment, and therefore a
reduction of unemployment may decrease the additions to
the ranks of the unemployable. How to provide satisfactory
means of caring for the shiftless and the criminal is primarily
problem of charity and correction, but the prevention of
unemployment is a problem of industrial organization. In
this chapter the purpose is to describe the more direct legis-
lative remedies for unemployment due to the inability of
normal workers to obtain employment. These remedies may
deal either with (1) the regulation of private employment
offices, (2) the establishment and operation of public employ-
1 Magnus W. Alexander, "Hiring and Firing: The Economic Waste
and How to Avoid It," American Industries, August, 191 5, p. 19-
UNEMPLOYMENT 263
merit offices, (3) systematic distribution of public work, or
(4; the regularization of industry. A fifth important legisla-
tive remedy, unemployment insurance, will be discussed in
the chapter on "Social Insurance."
A study of the comparative possibilities of the various pro-
posed or attempted remedies for unemployment would be
much facilitated by statistics indicating the total amount of
involuntary idleness and what proportion is due to each one
of the several factors, such as cyclical and seasonal fluctuations,
unnecessarily frequent changes in the personnel of the work-
ing force and other preventable irregularity in employment,
and, lastly, to the lack of a centralized market for labor. But
accurate and comprehensive figures of this nature are not
available in the United States. The existence of unemploy-
ment to a significant degree is undoubted, but unfortunately
it is impossible at the present time to make more than a rough
guess as to the relative proportion of unemployment due to
each of the several causes mentioned.
In New York and Massachusetts, however, the state labor
departments regularly collect fairly reliable statistics in re-
gard to unemployment among organized workers. The mean
percentage of idleness in New York among the members of
"representative unions" l at the end of each month from 1904
to 19 1 4, due to causes other than labor disputes or disability,
ranged from 6.8 to 28 per cent. 2 In all but two years the
percentage was over 12. In the same period the unemploy-
ment resulting from other causes was comparatively small,
ranging from 0.3 to 4.2 per cent, for labor disputes and from
1 to 1.4 per cent, for disability. Of the 18.3 per cent, of
members of local trade unions reported as unemployed in
Massachusetts on December 31, 1914, all but 3.4 per cent.
were unemployed because of "lack of work" rather than be-
cause of labor disputes or disability. 3
It should also be noted that there is a wide seasonal varia-
1 In 191 4 these representative trade unions numbered 232 and had
140,406 members or 25.4 per cent, of the total union membership in the
state of New York.
2 New York Department of Labor, Bulletin No. 69, 191 5, "Idleness of
Organized Wage Earners in 1914," p. 6.
3 Massachusetts Bureau of Statistics, Twenty-eighth Quarterly Report
on Unemployment.
264 PRINCIPLES OF LABOR LEGISLATION
tion in the demand for labor. Statistics collected in New York
as to idleness of the members of labor organizations indicate
that the mean percentage of idleness during the period 1897 to
1 9 13 was, in all but three years, over 5 per cent, at the end
of September, and over 15 per cent. — that is, three times as
large — at the end of March. The federal Census of Manu-
factures for 1905 showed from the manufacturers' records
that in one month 7,017,138 wage-earners were employed,
while in another month there were only 4,599,091, leaving a
difference of 2,418,047. That is to say, nearly two and a half
million fewer workers were employed at one period of the year
than at another.
In addition to the irregularity of employment due to cyclical
fluctuations in the demand for labor, or industrial "crises,"
and that due to seasonal variations, a third important type of
idleness results from the casual or short time nature of
many occupations. The New York commission which stud-
ied unemployment reported in 191 1 that two out of every
five wage-earners are obliged to seek new places one or more
times every year. 1 In brief, the best available evidence in-
dicates that unemployment is chronic and the amount never
insignificant, even when industrial conditions are at their
best.
1. Regulation of Private Employment Offices
To the extent that there is somewhere a suitable "manless
job" for each "jobless man," the solution of unemployment
is simply the proper distribution of the labor supply. Per-
haps the commonest method of seeking to bring about this
distribution is by unsystematic individual search. A man
not recommended for a position by a relative or friend often
follows the easiest course, that which involves the least im-
mediate expenditure of money and thought. He starts from
home and drops in at every sign of "Help wanted."
"Help wanted," scrawled on a piece of cardboard, is the
symbol of inefficiency in the organization of the labor market.
The haphazard practice of tramping the streets in search of
* New York Commission on Employers' Liability and Other Matters,
Third Report: Unemployment and Lack of Farm Labor, 191 1, p. 38.
UNEMPLOYMENT 265
work is no method at all. It assures success neither to the
idle worker in his search for work, nor to the employer in his
search for labor. On the contrary, by its very lack of system,
it needlessly swells the tide of unemployment, and through the
foot-weary, discouraging tramping which it necessitates often
leads to vagrancy and to crime.
Another common method of connecting employer and em-
ployee is through the medium of advertising. Every large
newspaper in the country carries yearly hundreds of columns
of "Help wanted" and "Situations wanted," at a cost to
employers and employees estimated at about $5 for every
worker. If the money spent brought commensurate results,
there would be less ground for complaint. But at present
an employer advertises for help in several papers, because not
all the workers read the same paper. The employee lists
the positions advertised and then starts on the day's tramp.
At one gate fifty or a hundred men may be waiting for a single
job, while in other places a hundred employers may be wait-
ing each for a single employee. Unnecessary duplication of
work and expense by both parties is evident. In addition
to the expense, newspaper advertising also possesses inherent
possibilities of fraud. It is difficult for the newspaper, even
if it always tries, to detect misrepresentations, and the vic-
timized employee very rarely seeks legal redress.
In recognition of the need of more systematic means of
connecting the man with the job, private employment offices
of various sorts have long been established. Private bureaus
which charge no fees are conducted by various philanthropic
and semi-philanthropic agencies in all cities of importance,
but their activities consist largely in finding casual employ-
ment for near unemployables. In addition, many trade
unions and employers' associations maintain employment
bureaus for workers in special occupations. Some of them
are very efficiently organized and conducted. Notable ex-
amples are the printers' union "day rooms," and the chain of
employment bureaus conducted by the National Metal
Trades Association in fourteen principal cities of the United
States. The latter offices charge no fees, their registrations
number into the hundreds of thousands, and it is claimed by
the employers that they are not strike-breaking or blacklisting
266 PRINCIPLES OF LABOR LEGISLATION
Institutions. 1 Nevertheless, the usefulness of employment
bureaus under the partisan control of cither trade unions or
employers is limited by their potential or actual use as wea-
pons in a trade dispute. They lack the neutrality essential
to the satisfactory organization of the labor market.
(t) Abuses of Private Agencies
Private employment agents, doing business for profit, have
sprung up in all large centers. In 19 12 there were 249 of
them licensed and in operation in Chicago; in New York
they number about 700; and in all the states, probably about
5,000. Aside from a few specialized agencies, they handle
chiefly unskilled, domestic, and theatrical labor.
Many abuses are charged against the commercial agencies,
particularly misrepresentation of wages and conditions of
work, exaction of extortionate fees, sending applicants to
immoral resorts, and "splitting fees" with foremen and thus
inducing frequent discharges in order to get fees from men
employed to fill the vacancies. In the testimony in the hear-
ing on the petition for an injunction against the Washington
referendum practically abolishing commercial agencies, it was
stated that some of the private offices were so conducted as
to "have three men for one job; one upon the job, one going
to the job, and one coming from the job, and receiving com-
pensation from all." There are frequent instances, also,
where the commercial agencies accept fees and send the work-
men to distant points where there is no demand for laborers.
For example, in Kansas, the director of employment bureaus
states that during the harvest rush it became known that
"private employment agents were imposing upon men who
came to the state in search of work in the harvest fields, exact-
ing a fee from men seeking employment and then directing
them to parties who had not authorized the employment agent
to engage hands." 2 In the year ending May i, 19 13, the
1 A. J. Allen, secretary of the Associated Employers of Indianapolis,
in address before the American Association of Public Employment
Offices, 1914.
2 Twenty-ninth Annual Report of the Kansas Department of Labor and
Industry, 1913, p. 220.
UNEMPLOYMENT 267
commissioner of licenses of the city of New York reported
the investigation of 1,932 complaints against registered em-
ployment agents, resulting in nine convictions, the refunding
of more than $3,000 to victimized applicants, and the revoca-
tion of thirteen licenses. 1 Among the charges for which li-
censes were revoked were fraudulent conduct, misrepresenta-
tion, failure to refund fees, and sending girls to questionable
places.
(2) Restrictive Legislation
In the majority of states the abuses of the profit-making
agencies have brought about restrictive legislation designed
to prevent fraud and extortion and to insure moral surround-
ings. Under this legislation no one may carry on an employ-
ment office for profit without depositing a bond with the
state department of labor or the city authorities and securing
a license. The amount of the bond varies from $100 to
85,000, and the annual license fee from $10 to $100, often both
being graded according to the size of the city or the sort of
labor handled. Licenses are issued only if the premises are
found proper, and may, together with the bond, be forfeited
for violation of the law. About a dozen states prohibit the
location of agencies in saloons. Association with lodging-
houses or restaurants is also frequently prohibited, and Colo-
rado extends the prohibition to gambling-places. In several
states the sending of minors or women to immoral resorts is
forbidden. In many jurisdictions the law fixes a maximum
charge, usually either a certain per cent, of the first month's
wages or a fixed amount. Other related provisions are require-
ments as to form of receipt, and provisions for return of all or
part of the fee if work is not soon obtained or if a workman
is discharged in a short time. In California and the District
of Columbia traveling expenses as well as the fee must be
returned. Frequently it is specified that all advertisements
or other information shall be truthful. 2 In a number of states
a record of all applicants registered is required, but rarely
are the requirements comprehensive enough to give informa-
1 Report of the Commissioner of Licenses, New York City, 1913, p. 19.
2 Wisconsin (Laws 1915, C. 457) specifies in addition that advertise-
ments of private bureaus must state the existence of a strike or lockout.
268 PRINCIPLES OF LABOR LEGISLATION
tion valuable for statistical purposes. Among the notable
exceptions is New York, where to assist in the publication of
a labor market bulletin by the department of labor, private
employment agents must keep their records "in such form
as may be required by the commissioner of labor in order
to supply the same information as that supplied by state
offices. "
The validity of state regulation of private employment
agencies has seldom been denied by the courts. A California
statute limiting the amount of charges was declared an un-
constitutional infringement on the right to contract, 1 but
similar provisions in other states have, as far as is known,
been uniformly upheld. The requirement of a license has
been sustained, even when the license fee was placed so high
as to be practically prohibitive. Thus a Georgia law, fixing
a fee of $500 for each county in which the agent operated,
was upheld by the supreme courts both of the state 2 and of
the United States, 3 the latter decision being followed in other
southern jurisdictions. 4 The prevailing view is that license
regulations have for their object the promotion of public
health, safety, morals, and convenience, that they tend to
prevent fraud and extortion, and hence that they are within
the police power of the legislatures even though they may
somewhat restrict the right to carry on a lawful business
without legislative interference. 5
The almost unanimous testimony of investigators and public
officials, however, is that these provisions have not been suc-
cessful in stamping out the abuses of private offices, and the
result has been a widespread movement for the abolition of
such offices altogether. Complete suppression of private em-
ployment bureaus was recommended by the Trades and
Labour Congress of Canada at its annual meeting in 19 13, 6 and a
1 Ex parte Dickey, 144 Cal. 243, 77 Pac. 924 (1914)- The statute in-
validated was California, Laws 1903, C. 11.
'Williams v. Fears, no Ga. 584, 35 S. E. 699 (1900).
3 Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128 (1900).
* State v Napier, 63 S. C. 60, 41 S. E. 13 (1902); State v. Roberson,
136 N. C. 587, 48 S. E. 595 (1904).
6 People ex rel. Armstrong v. Warden of the City Prison of N. Y., 183
N. Y. 223, 76 N. E. 11 (1905); Price v. People, 193 111. 114, 61 N. E. 844
(1901).
6 Dominion of Canada Labour Gazette, Vol. XIV, p. 448.
UNEMPLOYMENT 269
resolution of similar tenor was adopted at the 19 14 convention
of the American Association of Public Employment Offices.
The popular protest against the abuses of private commercial
agencies was voiced by the adoption in the state of Washing-
ton of an initiative measure prohibiting the collection of fees
from workers by an employment agent. The reason assigned
in the measure is that "The system of collecting fees from
the workers for furnishing them with employment . . . results
frequently in their becoming the victims of imposition and
extortion and is therefore detrimental to the welfare of the
state." l This measure was expressly based on the police
power, and the United States District Court upheld the pro-
hibition inasmuch as "The state, under its police power, can
adopt any act which reasonably protects its citizens, or a
class of citizens, from fraud and extortion." 2 A similar law
was passed by the Idaho legislature in 191 5, forbidding private
employment offices except philanthropic or professional
agencies. 3
In a number of other countries also, dissatisfaction with the
private commercial agencies has led to more or less complete
steps for their repression. A German act of 1910 states that
licenses must be refused to private employment agencies
when there is no absolute need for them, and further declares
that the need does not exist when a public exchange is working
normally in the locality. 4 Licenses in Austria are conditioned
on the absence of a public employment office in the vicinity.
The province of Quebec seeks to restrict the number of private
employment offices by charging a fee of $200 where there is
a public office, otherwise only $25. A French law of 1904
authorizes the establishment of public offices by the com-
munes and at the same time authorizes the closing of the
private registry (commercial) offices upon payment of dam-
ages. 5 The actual achievements under this law have, however,
been slight.
1 Initiative Measure No. 8, adopted November 3, 1914.
2 Wiseman v. Tanner, 221 Fed. 698 (1915).
8 Idaho, Laws 1915, C. 169.
4 Report of the Union of German Employment Offices, International
Conference on Unemployment, 1910, Report No. 3, p. 31.
6 Law of March 14, 1904, Art. 11. See Bulletin of the International
Labor Office, 1904, French edition, p. 48,
2 7 o PRINCIPLES OF LABOR LEGISLATION
2. Public Employment Exchanges
The agitation for public employment offices has been due
partly to the search for a remedy for the abuses of private
agencies and partly to a deepening conviction that it is a
proper function of the state to help the unemployed find work.
The first American state to make provision for employment
offices was Ohio in 1890, followed by Montana in 1895, and
New York in 1896. • The majority of the present laws have
been enacted since 1900.
(1) State and Municipal Offices
There were in existence in the country in 191 5 between
eighty and ninety state and municipal employment exchanges,
maintained by some twenty-three states 2 and by more than
a dozen cities. 3
Some few states create a state employment office, but make
no provision for local branches. Since the work of such an
office must be conducted almost entirely by the slow and
unsatisfactory "mail order" method, this type of law has not
yielded very important results. The West Virginia bureau at
Wheeling placed about 2,000 applicants each year 4 in the
1 The original Montana and New York laws were soon repealed.
2 By the end of 191 5 provision for state employment exchanges had
been made in California, 191 5; Colorado, 1907; Connecticut, 1905;
Illinois, 1899; Indiana, 1909; Iowa, 1915; Kansas, 1901; Kentucky,
1906; Maryland, 1902 and 1914; Massachusetts, 1906; Michigan, 1905;
Minnesota, 1905; Missouri, 1899; Nebraska, 1897; New Jersey, 1915;
New York, 191 4; Ohio, 1890; Oklahoma, 1908; Pennsylvania, 191 5;
Rhode Island, 1908; South Dakota, 1913; West Virginia, 1901; and
Wisconsin, 1901. .....
3 In 1 91 5 public employment exchanges maintained by municipalities
were to be found in Phcenix, Ariz. ; Los Angeles, Sacramento, and San
Francisco, Calif.; Kansas City, Mo.; Butte, Great Falls, and Missoula,
Mont.; Newark, N. J.; New York, N. Y.; Portland, Ore.; Pittsburgh,
Pa.; Richmond, Va.; Aberdeen, Everett, Hoquiam, Seattle, Spokane,
and Tacoma, Wash.; and perhaps in a few additional cities. The three
states of Montana, Louisiana, and Idaho respectively authorize, en-
courage, and require cities to set up such agencies, but provide for no
central administrative control.
4 United States Bureau of Labor Statistics, Bulletin No. 109, 1912,
"Statistics of Unemployment and the Work of Employment Offices," p.
137.
UNEMPLOYMENT 271
eleven years following its establishment, but the office con-
ducted in Baltimore, Md., under the law of 1902 has had
only a nominal activity, 1 and the Nebraska law establishing
a public employment office in the bureau of labor has, because
of lack of funds, been practically a dead letter.- So ineffec-
tive was the Maryland office that in 19 14 a special depart-
ment was created in the local immigration bureau, for the
purpose of securing "efficient farm help to meet the demands
for such labor in the agricultural communities of the state."
The remaining states which have legislated upon this
subject authorize the establishment of local offices, usually
under control of the bureau of labor. This is the most im-
portant type of public employment bureau law in this country,
and is well exemplified by the New York statute of 1914. 3
By this statute a bureau of employment is established in
the state department of labor, under the immediate charge
of a director, who must be under civil service and who must
have "recognized executive and managerial ability, technical
and scientific knowledge upon the subject of unemployment
and administration of public employment offices and recog-
nized capacity to direct investigations of unemployment
and public and private agencies for remedying the same." 4
The commissioner of labor may establish such local offices as
he deems necessary, each to be in charge of a superintendent
under the general supervision of the director. These local
offices are to register applications from those seeking employ-
ment or employers seeking employees, and make periodic
reports to the director. Any office may be subdivided into
separate departments for men, women, and juveniles, or other
class of workmen, as farm laborers. The service is to be free
and penalties are prescribed for the acceptance of fees by the
officials. A coordination of the activities of the local bureaus
1 United States Bureau of Labor Statistics Bulletin No. log, 1912,
"Statistics of Unemployment and the Work of Employment Offices,"
pp. 127-129.
2 Ibid., p. 131.
3 New York, Laws 19 14, C. 181.
4 The desire of the framers of the New York law to assure the selection
of specially trained men for the work of managing the state employment
bureau resulted in the appointment of a director who had many years of
experience as an investigator of the organization and methods of employ-
ment bureaus.
27 2 PRINCIPLES OF LABOR LEGISLATION
is to be facilitated by a labor market bulletin and the inter-
change and publication of lists of vacancies. Partial recog-
nition is given to the common European policy of joint control
by directing the commissioner of labor to appoint for each
office a representative committee composed of employers and
employees, with a chairman agreed upon by the majority.
On the request of a majority of either side the voting on any
question must be so conducted that there shall be an equality
of voting power between employers and employees, notwith-
standing the absence of any member. Similar committees
have under the Wisconsin Industrial Commission been for
years an indispensable adjunct to the public exchange at
Milwaukee, and are provided for in the 19 15 laws of Illinois 1
and Pennsylvania. 2
Perhaps the most controversial point in the administration
of a bureau is the policy to be pursued in time of strike or
lockout. The first Illinois law establishing state exchanges
in 1899 3 was four years later declared unconstitutional be-
cause of the provision that applications to fill places vacant
because of a strike were not to be received. 4 The court held
that this provision deprived citizens of the equal protection
of the laws guaranteed by the fourteenth amendment, inas-
much as it discriminated between employers whose men were
on strike and other employers, and also between workmen
who wished to take places vacant because of a strike and work-
men who did not. Wisconsin had a similar experience. The
healthy instinct of which this prohibitory clause was an un-
skilful manifestation has been satisfied in most American
exchanges by publicity. Under the New York law, for in-
stance, either party to a trade dispute may file a statement,
which, with any answer, must be exhibited at the exchange.
The prospective employee is informed of the statements at
the same time that he is informed of the position, and it is
left for him to decide whether or not to take the work. In
Massachusetts it is even the practice in case of an industrial
dispute to stamp the introduction card which the employee
1 Illinois, Laws 1915, p. 414.
2 Pennsylvania, Laws 1915, No. 373.
3 Illinois, Laws 1899, p. 268.
* Mathews v. People, 202 111. 389, 67 N. E. 28 (1903).
UNEMPLOYMENT 273
is to present to the employer with the words, "There is a
strike on at this establishment." Under the publicity policy
very few applicants take strike-breaking jobs. Employers
and labor union representatives are thoroughly satisfied, and
consequently the exchange escapes the rocks of disaster on
either side. As an important corollary to this method of
handling a strike situation, the New York law includes the
further stipulation that no applicant is to suffer any dis-
qualification or prejudice at an exchange if he refuses to accept
an offered job on the ground that a strike or lockout exists
or because the wages offered are lower than those current in
the district for the same work. 1
Careful registration of all applicants is provided for, and
the commissioner of labor may also specify the form of regi-
sters for private agencies, which must furnish information on
request. Five per cent, of the annual appropriation for the
bureau may be spent in advertising.
A special feature of the law is the provision for assistance
to juveniles somewhat similar to the English system. Chil-
dren of working age may register at the schools, and a sub-
committee composed of employers, workmen, and persons
familiar with education or other conditions affecting juveniles,
must be appointed by the advisory committee to advise in
regard to the management of the juvenile department of the
employment offices and otherwise to assist parents and chil-
dren with respect to the choice of employment. No other
American law contains an exactly similar provision, though in
a few offices energetic superintendents are endeavoring to de-
velop this side of their work, and in the Pennsylvania act of
19 1 5 special arrangements are made for cooperation with
school placement bureaus and with the school authorities
generally.
Often, as has been recognized in the British and German
systems, lack of railroad fare to reach an offered position is
1 The Illinois court, however, following its line of argument in the.
Mathews case (see p. 272), has declared even the requirement of pub-
licity on labor disputes to be unconstitutional, on the ground of threefold
discrimination between certain employers and others, between certain
workmen and others, and between employers and other persons making
contracts. (Josma v. Western Steel Car & Foundry Co., 249 111. 508.
94 N. E. 945 (19"))
18
274 PRINCIPLES OF LABOR LEGISLATION
a serious obstacle to a willing but moneyless worker, yet no
American state authorizes its employment bureau officials to
advance the needed transportation. A few superintendents
do, however, advance fares in exceptional cases, and the Wis-
consin exchanges frequently turn over to applicants the trans-
portation advanced by the prospective employer, checking
the man's baggage to the employer as a safeguard.
In Wisconsin and Ohio a merging of the state and city plans
has been arrived at, in accordance with which the state pays
the salaries and administrative expenses while the town pro-
vides the premises, both governmental units being represented
on the joint board. The success of this method in securing
both local interest and efficient administration is marked, and
the next few years may see its adoption in a number of states.
Of the exchanges initiated by municipalities under their
own charters, the Seattle office established in 1894 has been
among the most successful, filling 33,342 positions in 1913. 1
An important part of the activity of this office has been the
shipment of unskilled workers to hop-fields and lumber-camps
in large groups, which has helped to keep the per capita cost
of filling positions down to the phenomenally low figure of
4 cents.
The public employment offices now in operation in the
United States are filling thousands of positions yearly
at a cost ranging, according to official reports, from 4 cents
to $2 apiece. In Wisconsin, where there are four state ex-
changes, well organized on the most approved lines, the cost
in 191 1 was about 35 cents per position filled. In Illinois,
during the twelve years, 1900-1911, there were 589,084 ap-
plications for employment, 599,510 applications for workers,
and 512,424 positions filled. Illinois now appropriates over
$50,000 a year for direct support of its state labor exchanges,
of which eight have already been established, and a similar
sum is expended in New York.
During the winter of 19 14-19 15, also, several public em-
ployment bureaus and labor department officials in the grain-
raising states organized, in cooperation with the United
States Departments of Labor and of Agriculture, the National
Twentieth Annual Report of Public Employment Office, Seattle, 1913.
UNEMPLOYMENT 275
Farm Labor Exchange for the efficient placing of harvest
hands. Since harvesting begins two months earlier in the
southern than in the northern part of the country, and fur-
nishes at most only a few weeks' work in any one place, it
was felt necessary to develop some means for more carefully
directing the large numbers of workers who "follow the
crops," and for preventing hardship to them by loss of time
and by congestion in districts already flooded with workers.
The work of the exchange is carried on from the offices of
the labor officials interested, and farmers, civic, and business
associations arc associated with it. Further beginnings of
interstate cooperation are to be seen in the Eastern Labor
Clearing House, initiated in the same winter through the
New York City municipal exchange, and in the American
Association of Public Employment Offices, organized in 19 13
to promote closer connections and uniform methods.
Notwithstanding the good work of a few, however, the state
and municipal bureaus are still far from furnishing an ade-
quate medium for the exchange of information on oppor-
tunities for employment. Only about half the states are
represented. Due to lack of civil-service requirements, many
of the managers are political place-holders of worse than
mediocre attainments. Some of the offices exist, as has been
seen, only on paper, others are poorly located, in out-of-the-
way places, and inadequately heated, lighted, and ventilated.
Many have therefore driven away the better class of workers,
and deal only with casuals. Appropriations are usually too
small for efficiency. A uniform method of record-keeping has
yet to be adopted. Statistics are non-comparable, and fre-
quently unreliable, if not wholly valueless. 1 There is prac-
tically no interchange of information between various offices
in a state or between states. In short, workmen are still
undergoing want, hardship, and discouragement even though
often within easy reach of the work which would support
them, if they but knew where to find it.
Nor does the evil end there. Every one who has studied
the problem realizes that method and system in putting men
1 Fur a full discussion of these statistics, see "Operation of Public Em-
ployment Exchanges in the United States," American Labor Legislation
Review, May, 191 4, pp. 359-371-
276 PRINCIPLES OF LABOR LEGISLATION
and opportunities for work in touch with each other will not
of themselves prevent oversupply of labor or of jobs. They
will do so no more than the cotton exchange guards against
an over- or an undersupply of cotton. They will serve merely
as levelers in the scales of labor supply and labor demand.
Besides the unemployment which is due to the failure of men
and jobs to find each other, there is much due to other causes
which even the best system of employment exchanges would
not directly eliminate.
But close students agree that these other causes of unem-
ployment cannot be successfully attacked without a basis in
comprehensive, conscientiously collected information such as
cannot be furnished by our present machinery for dealing
with the problem. LTnder present methods there exists no
automatic, cumulative means for collecting the facts. This
results, of course, in exaggerated statements in both direc-
tions. Our paucity of information on this complex and vital
question has continued, even though labor problems in one
form or another have taken the lead as subjects for legisla-
tion. Any scientific lawmaking on the programs of social
insurance — especially unemployment insurance — and of vo-
cational guidance must be grounded on facts of relative em-
ployment and unemployment of the workers, by trades, by
sexes, and by ages. Without a nation-wide system of labor
exchanges, no basis can exist for anticipating in an accurate
manner the ebbs and flows of the demand for labor. With-
out concentration of the information now collected and now
held separately in thousands of separate organizations through-
out the land, the possibility of looking into the future, or of
profiting by the past, is out of the question.
(2) Federal Activity
Growing realization of the foregoing facts has led to the
demand for a federal system of public employment bureaus.
Such a system would cover the whole country. Without
superseding either the state or the municipal exchanges, it
would supplement and assist the work of both, dovetailing
them into an efficient whole. Country-wide cooperation and
UNEMPLOYMENT 277
exchange of information would then be an accomplished fact
instead of merely a hope. Statistics for the study of unem-
ployment and for the progressive development of new tactics
in the campaign against it would be coextensive with the
national boundaries and comparable between different parts of
the nation. Regulation of private agencies doing an interstate
business would be an additional function of a federal system.
There was in 19 15 no direct or adequate federal legislation
for a national system of employment offices, but the par-
ticipation of the federal government in the National Farm
Labor Exchange has already been mentioned, and in addition
promising activities on a growing scale had been initiated
by cooperation between the Department of Labor and the
Post Office Department. A clause of the immigration act
of 1907 created in the Bureau of Immigration a Division of
Information, which was to secure and publish information
"to promote a beneficial distribution of aliens." Misappre-
hension and antagonism hampered the early work of the
division, but since the passage of the act of March 4, 19 13,
creating the Department of Labor, a new start has been taken.
The new department was required, among other duties look-
ing to the benefit of the country's wage-earners, to "advance
their opportunities for profitable employment," and the
Division of Information, together with the whole Immigra-
tion Bureau, was transferred to its jurisdiction. Under the
system which has been developed, the country is divided
into eighteen zones. Each zone has its headquarters, in
charge of an immigrant inspector and one assistant, and
usually one or more subbranches. 1 In cooperation with the
Departments of Agriculture, Interior, and Commerce, infor-
mation is secured as to opportunities for work, and the Post
Office Department assists by displaying in the local post
offices placards calling attention to the work of the division
and bearing instructions for applying. The form postal
cards requesting information are transmitted through the
post office free.
This expansion of work was begun in February, 191 5.
During the six years just preceding, the Division of Informa-
1 See Monthly Review of the United States Bureau of Labor Statistics,
Vol. I, No. i, July, 1915, p. 9.
27 S PRINCIPLES OF LABOR LEGISLATION
tion used to receive from 19,000 to 30,000 applications for
positions annually. In the first nine months of the new system
the number of applications rose to 137,858, and positions were
found for 34,142 persons. 1 Steps are under way for the
further development of the plan.
(3) European National Systems
In a number of European countries a national network of
employment offices is much further developed than in the
United States. By 19 10, for instance, there were in Germany
444 public labor exchanges, 325 of which were maintained by
municipalities and the remainder by voluntary associations,
with a government subsidy. 2 Over 200 of the more impor-
tant exchanges are affiliated in a loose voluntary federation,
the Union of German Employment Offices, founded in 1898.
The member exchanges vary considerably as to control,
organization, and methods. The majority are under the joint
management of employers and workmen, usually with the
chairman of the governing board appointed by the municipal
authorities. The number of these jointly managed exchanges
has been on the increase, and by 19 10 eighty-four of the 131
municipal exchanges affiliated with the federation were jointly
controlled.
Similar local federations exist in most of the states of the
empire. Until recently, however, the organization of the
labor market in Germany was still very imperfect. Two
essential principles of a national system of labor exchanges —
neutrality and centralization — were far from being realized.
The principle of neutrality was broken down particularly by
the employment bureaus of employers and of employees, 3 and
it was realized that for the success of their work the federa-
tions needed to be established by law and given power to
inspect and to establish employment bureaus. 4 Shortly after
1 Monthly Review of the United States Bureau of Labor Statistics, Novem-
ber, 1915, p. 20; December, 1915, p. 5-
2 International Conference on Unemployment, 1910, Report J\o. I, p. o.
3 The trade unions alone had about 1,000 exchanges in 1910.
4 Quarterly Bulletin of the International Association on Unemployment,
July-September, 19 13, pp. 689-690.
UNEMPLOYMENT 279
the outbreak of the war in 19 14 greater centralization was
obtained by the creation of an imperial employment bureau
to cooperate with the municipal exchanges, the trade unions,
and other interested bodies. 1
The subsidies to German labor exchanges are given by cities,
states, and the imperial government, the amount received in
1908 by the offices in the national federation being $62,500.
To this sum should be added subsidies in other forms, as free
telephone service, especially in the southern part of the em-
pire.
National subsidies play an important role in European em-
ployment bureau legislation. Several countries try to raise
the efficiency of local public employment bureaus by grant-
ing subsidies only to "recognized" offices, that is, offices which
have conformed to the standards fixed by the national govern-
ment. Switzerland, Belgium, and the three Scandinavian
countries have legislation of this character. In the Swedish law
subsidies were authorized to meet the expense of special
measures adopted to place workmen on the land, and the
public bureaus have in consequence been especially useful in
agriculture, drawing back into the country the superfluous
labor of the towns. In 19 12 of the 105,000 positions filled
by the thirty-two bureaus, 26,000 were in agricultural pur-
suits. 2 The Danish act of April 29, 19 13, is one of the most
important of European laws relating to public employment
offices. 3 It provides for the establishment of a central ex-
change at Copenhagen, and authorizes branch exchanges to
be conducted by towns, counties, or groups of towns. The
minister of the interior is authorized to designate some of
the recognized offices to act as central exchanges for sec-
tions of the country. To supervise the entire system the king
must appoint a director of labor exchanges, among whose
duties is that of maintaining cooperation among the recog-
nized local exchanges.
The first legislation to establish a well-unified and distinctly
national system of employment bureaus, however, was the
1 Mix Westerkamp, The Survey, January 23, 191 5, p. 441.
2 Erik Sjostrand, Quarterly Bulletin on Unemployment, July-September,
1913, p. 885.
3 Bulletin of the International Labor Office, 1914, pp. 1-5.
2 So PRINCIPLES OF LABOR LEGISLATION
British labor exchanges act of September 20, 1909. ' Earlier
efforts at establishing such bureaus were made by the Central
Unemployed Body for London in 1906, under authority of
the unemployed workmen act of 1905, and the resulting offices,
for which the German exchanges were taken as models, sup-
plied the main essentials of the present British system.
The act of 1909 gives to the board of trade, a body corre-
sponding somewhat to our federal Departments of the In-
terior, Commerce, and Labor, large discretionary powers as
to the details of the system. The board is authorized to
establish or take over labor exchanges wherever it thinks fit,
to make regulations for the management of these agencies,
to assist bureaus maintained by any other authorities, and to
establish advisory committees to assist in the management of
the exchanges. With the approval of the treasury, it may
authorize loans to cover traveling expenses of workers for
whom employment has been found through an employment
exchange.
The general regulations 2 made by the board under au-
thority of the act set forth in great detail the rules of organiza-
tion and management of the offices. Registrations of appli-
cants must usually be made in person and renewed after seven
days if employment is not obtained. In conformance with the
practice followed in the majority of the German offices, during
a labor dispute the parties are permitted to file statements in
regard to the dispute and applicants are to be informed of its
existence. Applicants who refuse positions because of labor
disputes, or because the wages offered are lower than those
current in the trade, do not sacrifice any of their privileges to
future services of the exchanges. The offices ' ' shall undertake
no responsibility with regard to wages or other conditions"
beyond supplying what information may be in their possession.
The general regulations also prescribe the conditions on
which railroad fares may be advanced as loans to workmen
who are sent to other towns to take employment. No ad-
vances are to be made unless the distance to be traveled is
1 9 Edw. 7, C. 7. For full text see Bulletin of the International Labor
ffi.ee, 1910, p. 21.
2 General Regulations for
of Trade, January 28, 1910.
Office, 1910, p. 21.
2 General Regulations for Labour Exchanges Managed by the Board
UNEMPLOYMENT 281
more than five miles, nor to points where a labor dispute is
in progress or when the wages offered are below the current
rates. Care is also to be taken to avoid "unduly encourag-
ing rural laborers to migrate from the country to towns."
In the first thirty-eight months of the operation of the ex-
changes they made advances to 28,321 workmen, totaling
$40,360, of which sum only 1.6 per cent, had been written off
as irrecoverable. 1
The general regulations also provide in some detail for the
constitution, procedure, and functions of the advisory com-
mittees. These are to consist of equal numbers of persons
representing employers and workmen, appointed by the board
of trade, with a chairman agreed upon by a majority of repre-
sentatives of the employers and of the representatives of work-
men, or, in default of such agreement, appointed by the board.
On request of a majority of the representatives of either, there
shall be equality of voting power on the part of employers and
workmen, and in such cases the chairman is to have no vote.
In practice, these advisory committees are not attached to
individual exchanges, but are appointed for large areas. One
or more have been appointed in each of the eight main dis-
tricts of the system. The subjects referred to them are main-
ly questions of principle, affecting the exchanges generally,
rather than questions of detail affecting any particular ex-
change or branch of the work.
Special recognition has been given in Great Britain to the
need of agencies for assisting juvenile workers in choosing
an occupation, finding employment in that occupation, and
avoiding frequent changes in the early years of their working
experience. Under the labor exchanges act and under the
education (choice of employment) act of 19 10 two distinct
methods for the organization of juvenile exchanges have
been developed.
Under the labor exchanges act the board of trade issued in
April, 1913, its special rules with regard to the registration
of juvenile applicants. These rules provide that the board
may appoint, after consultation with the local advisory trade
committees, special advisory committees for juvenile employ-
1 W. H. Beveridge and C. F. Rey, Quarterly Journal on Unemployment,
July-September, 191 3, p. 77.
282 PRINCIPLES OF LABOR LEGISLATION
ment, to be composed of persons representing employers and
workmen, and of persons familiar with education and other
conditions affecting juveniles. In addition to advising the
board with regard to juvenile employment, the committees
assist boys and girls with respect to their choice of occupation.
Thus the juvenile exchange is made an integral part of the
adult exchange, cooperation with the schools is secured
through the special advisory committee, and duplication of
effort is avoided. This system is perhaps the one best adapted
to American needs.
Under the education act, on the other hand, the situation
is reversed. The law authorizes "local education authorities
to give girls and boys information, advice, and assistance with
respect to the choice of employment," l if such work is not being
done by any other agency. Under this system, accordingly,
the juvenile labor exchange is a part of the school system,
frequently its offices are in the education building, and co-
operation with the adult exchange established by the board
of trade is secured through the advisory committee. The
system has many good features, such as the close supervision
of the educational authorities over the placement work, but
is weakened by imperfect correlation between the two ex-
changes. Liverpool furnishes a good example of this method,
while the London offices typify the first. 2
The exchanges in the British system number over 400.
Although the area of the country is only one twenty-fifth of
ours, the kingdom has been divided for their better adminis-
tration into eight districts— six for England and Scotland, one
for Wales, and one for Ireland. Each district has its divisional
office or clearing house, which is in turn coordinated with the
central office in London, thus connecting all the exchanges in
one national system. In addition, the exchanges proper are
linked with over 1,000 local agencies which assist in the ad-
ministration of unemployment insurance. In this way the
exchanges are brought in close touch with workers in all parts
of the kingdom.
1 Quotation from title of act, 10 Edw. 7 & 1 Geo. 5, C. 37. For full
text see Bulletin of the International Labor Office, Vol. VI, p. 36.
2 See Elsa Ueland, "Juvenile Employment Exchanges," American Labor
Legislation Review, June, 19 15, pp. 203-237.
UNEMPLOYMENT
283
The beneficial results of the exchanges are undoubted. Ex-
cluding certain occupations of a peculiarly casual nature, they
were filling before the war over 17,000 vacancies weekly, most
of which were vacancies for skilled labor, 1 and the number has
since increased. The following table shows the number of
applications for employment, the number of vacancies notified
by employers, and the number of vacancies filled, for the
month of March during each of the first six years:
OPERATIONS OF BRITISH LABOR EXCHANGES, BY SPECIFIED MONTHS
Month
Applications
for
Employment
Vacancies
Notified by
Employers
Vacancies
Filled
March, 1910
126,119
142,382
178,317
209,901
222,204
213,464
47,811
72,650
95,862
99,089
137,908
20,395
37,711
55.650
68,783
74.578
99,188
March, 1911 1
March, 1912
March, 1913
March, 1914
March, 1915
1 Five weeks.
The following table shows the usefulness of the exchanges
for the first five years of their existence :
OPERATIONS OF BRITISH LABOR EXCHANGES, BY YEARS
Year
Applications
for
Employment
Vacancies
Notified by
Employers
Vacancies
Filled
I910 '
1,590,017
2,OIO,II3
2,423,213
2,739,480
3,251,646
458,943
886,242
1,286,205
1,158,391
1,425,174
374,313
719,043
1,051,861
874,575
1,076,575
iqi 1
IQI2
IQIl
IQI4
1 Eleven months.
The proportion in 19 14 of vacancies filled to vacancies noti-
fied was 76 per cent.
3. Systematic Distribution of Public Work
A well-developed system of labor exchanges cannot, of
course, create jobs, but in addition to bringing the jobless
1 Pamphlet on Board of Trade Labour Exchanges, issued by Board of
Trade, May, 1914.
284 PRINCIPLES OF LABOR LEGISLATION
workers quickly and smoothly in contact with such opportuni-
ties as exist it can register the rise and fall in the demand for
labor. This knowledge would make possible intelligent action
for the prevention and relief of unemployment through the
systematic distribution of public work and the pushing of
necessary projects when private industry's demand for labor
is at a low level. Public work would then act as a sponge,
absorbing the reserves of labor in bad years and slack seasons,
and setting them free again when the demand for them in-
creases in private business.
(i) Emergency Work
Probably ever since unemployment became a modern in-
dustrial problem there have been more or less insistent de-
mands that the machinery of government be used for putting
temporarily to work those who were displaced from private
industry during a period of depression. It was felt that sup-
porting the unemployed in this way, or, rather, thus giving
them the chance under community direction to support them-
selves, was preferable to supporting them either by public
relief or by private charity. It was not likely to cost
any more, the stigma of pauperism would not be fastened
upon self-respecting persons out of work through no fault of
their own, and, finally, some improvement of permanent value
to the community would have been furthered.
As early as the panic year of 1857, when 70,000 were esti-
mated to be unemployed in New York alone, Mayor Wood
of that city sent to the common council a message in which
he said:
"I recommend that the comptroller be authorized to adver-
tise for estimates for furnishing the corporation with 50,000
barrels of flour and a corresponding quantity of corn-meal
and potatoes, to be paid for by the issue of a public construc-
tion stock redeemable in fifty years, and paying 7 per cent,
interest; these provisions to be disposed of to laborers to be
employed upon public works, at their cost price to the cor-
poration, all these works to be commenced forthwith under
the proper departments. Twenty-five per cent, should be
UNEMPLOYMENT 285
paid in cash. Every man who will labor should be employed
at a fair compensation, and the supplies thus provided be
distributed in return." '
Apparently the mayor's suggestion was not acted upon,
but Central Park was then under construction and the city
comptroller arranged to advance to the park commissioners
$1,000 a day until such time as the city should take $25,000
of the bonds. The commissioners agreed in return to select
not exceeding 1,000 of their workmen proportionally from the
residents of each ward. 2 In this way a considerable portion
of the work was made available when it could exert the largest
influence in preventing destitution and demoralization.
During the severe unemployment crisis of 1014-1915 over
100 cities throughout the country made special provision for
carrying on public work of various sorts, such as sewer-build-
ing, street and road-making, quarrying, forestry, drainage,
waterworks, building, painting, and even clerical duties. The
work was maintained for periods ranging from less than a
month to more than six months, thousands of men were em-
ployed in from two-day to two-week shifts, and hours and
rates of pay were as a rule the same as for regular employees
on the same grade of labor. In the majority of cases the
officials in charge declared that they had secured full efficiency
from the workmen, and some even stated that necessary work
had been done at a distinct saving.
Experiences with emergency work have not always been
gratifying. Poor work, increased expense to the community,
and political favoritism in the selection of applicants are
among the faults which have frequently interfered with its
accomplishing what was expected of it. On the whole, how-
ever, the opinion has been growing that these flaws are not
inherent, but due to poor administration, and that, if properly
managed, emergency work can be made an important agency
in maintaining during slack periods the labor reserves needed
when industry is booming.
The policy of giving temporary relief employment is em-
bodied into law in the English unemployed workmen act of
1 Report of the Massachusetts Board to Investigate the Subject of the Un-
employed, 1895, Part IV, pp. 7-8,
s Ibid., pp. 9-10.
286 PRINCIPLES OF LABOR LEGISLATION
1905, by which the central administrative body for London
was authorized to provide temporary work for the unem-
ployed. 1 An attempt was made in this statute to differentiate
relief employment from charity by stipulating that laborers
accepting work were not to be disfranchised.
In Germany relief work for the non-resident unemployed
is often associated with hotels for itinerant workers. Several
hundred of these, known as Herbergen, are private enterprises,
but a more modest type of relief stations, or "home shelters,"
is conducted by the public authorities. Legislation has been
enacted in Prussia looking to the establishment of a system
of these smaller relief stations (Verpjlegungsstationen) through-
out that kingdom. 2 The Prussian provinces may require rural
and urban districts to establish "labor homes for itinerant
workmen," 3 a portion of the expense to be borne by the
provinces and the state. These labor homes are to act as
employment registries for destitute men seeking work outside
their places of abode and to provide temporary board and
lodging in return for work done.
There is no similar legislation in this country, but some
experiments, notably that of the city of Seattle during the
winter of 19 14-19 15, may lead to further development of
agencies for caring for the itinerant worker. In Seattle public
funds were advanced to maintain an itinerant workers' home,
popularly known as "Hotel Liberty," and arrangements were
made for work in clearing grounds, grading roads, and work on
the pipe-line right-of-way. For tw r o days' work on one of these
jobs a man, registered at the hotel, was given a ticket good for
twenty-one meals. The work was rotated so as to give all
a chance to earn their board. The hotel was ably managed
and more than repaid expenses. The Seattle Chamber of
Commerce has recommended that the institution be made
permanent, and it has been suggested that a chain of similar
hotels for itinerant workers might be established along the
coast.
*5 Edw. 7, C. 18, Sec. 1 (5).
2 United States Bureau of Labor, Bulletin No. 76, May, 1908, "What
Is Done for the Unemployed in European Countries," W. D. P. Bliss,
p. 742.
3 Act of June 29, 1907, Bulletin of the International Labor Office, 1907,
p. 184.
UNEMPLOYMENT 287
(2) Adjustment of Regular Work
It is fast becoming recognized, however, that to wait until
the emergency has overtaken the community before the move-
ment to provide public work is set on foot is wasteful and
productive of unnecessary hardship. Public officials are
therefore more and more turning their attention to prepar-
ing in ordinary times for the period of stress which experi-
ence has shown is likely to follow in a few months or a few
years.
One of the earliest American experiments in this direction
grew out of an attempt to meet a specific emergency. In the
winter of 1910-1911 the city of Duluth, Minn., confronted
by an unusual number of seasonal workers turned adiift by
the closing of transportation on the Great Lakes, decided to
anticipate its need and cut through a wall of rock which
blocked the chief thoroughfare. Drilling and blasting were
done by regular city employees, but preparation of the rock
for the crusher was assigned to the unemployed, who were
given an average of three days' work each. Applicants were
hired and retained only if they were fit and willing to work,
and wages were set at $1.20 a day, a little less than the cur-
rent rate in order not to attract those who could find employ-
ment elsewhere. Payment in meals, clothing, employment
agency fees or railroad fare was given by the associated
charities, which referred the men to the work and was reim-
bursed by the city. 1 The plan worked so successfully that
it was followed in subsequent years, and in addition the city
has shifted much of its sewer building to the winter season
to assist in equalizing the amount of employment.
Such foresighted arrangement of public work is capable of
considerable extension, and may be efficaciously used to
counteract cyclical as well as seasonal fluctuations. The Eng-
lish statistician Bowley estimates that if in the United King-
dom a fund were set aside for public work to be pushed ahead
in times of depression, an average of $20,000,000 yearly, or
only 3 per cent, of the annual appropriation for public works
and services, would be sufficient to balance the wage loss from
1 W. M. Leiserson, "The Duluth Rock Pile," The Survey, September
20, 1913, pp. 729-731.
288 PRINCIPLES OF LABOR LEGISLATION
commercial depression. 1 If his suggestion were generally ac-
cepted, in each community or country a program of the
amount of public work contemplated for several years in ad-
vance would be laid out and then carefully planned to be
executed in the lean years. Thus public work, instead of
declining and thereby accentuating the depression, as is now
often the case, would exert a strong influence toward stabil-
ity. European experience shows that it is essential to the
success of such a program that the work be done in the or-
dinary way, the workers being employed at the standard
wage and under the usual working conditions and hired on
the basis of efficiency, not merely because they happen to be
unemployed.
Within the last few years the number of American cities
acting upon this principle has steadily grown. Several pro-
gressive communities have made definite plans to reserve
work on unimproved parks, sewers, and streets for future
dull periods. Several, also, without planning definite under-
takings, have issued bonds or established contingent funds
to provide the resources when needed. In Alameda, Calif.,
a special annual tax of i cent on each $100 of taxable property
was established in 19 15 to provide a relief fund for hiring on
public work "unemployed or indigent residents."
One of the most interesting developments, however, is the
Idaho law of 1915 2 which, for probably the first time in the
history of the country, recognizes the "right to work." Every
United States citizen who has been a resident of the state for
six months, and who does not possess more than $1,000 worth
of property, is guaranteed sixty days' emergency employment
on the highways or other public work yearly. Application is
made through the county commissioners, who must fix the
rate of compensation and may deduct half of the total ex-
penditure annually from the county taxes due the state.
Careful records must be kept, and persistent shirkers are dis-
qualified for a year. 3
1 Great Britain, Royal Commission on the Poor Laws, Minority Report,
1909, p. 1 195.
2 Idaho, Laws 191 5, C. 27.
3 For further details on the activity of American cities in 1914-1915 to
adjust their public work in preparation for future crises, see American
Labor Legislation Review, November, 1915, pp. 573~58i-
UNEMPLOYMENT 289
As the use of public work as a means of relieving unemploy-
ment has spread, city officials have increasingly felt the ham-
pering effect of charter limitations on the expenditure of
money. Many makeshift devices have been adopted for
defeating these restrictions, such as raising money by public
subscription, borrowing without interest, or transfer of funds
between departments, and in some cases business men have
had to furnish bonds to save the city officials from liability.
Consequently the conviction has been growing that budgetary
methods and, if need be, city charters must be modified to
permit greater freedom in the use of money for these under-
takings.
For some years the policy of consciously planning ahead
and reserving necessary public work for periods when the
wheels of private industry slacken has been finding favor
with European administrative bodies. Perhaps the most sig-
nificant results have been achieved in Germany, where as
early as 1894 this procedure was recommended by a Prussian
decree. Now nearly half a hundred German cities make a
practice of systematically adjusting their public work so as
to come in the slack seasons. At Nuremburg, for example,
between 800 and 900 men have been employed through the
winter on public developments held in reserve for that
season. 1 The same policy is followed by the government
departments, particularly the railway administrations. In
France, also, public work to alleviate unemployment has
had considerable development, and the prefects of the vari-
ous communes must report annually thereon to the minister
of commerce.
In Great Britain the use of public work on a national
scale as an equalizing reservoir for the labor market is partially
authorized by the development and road improvement funds
act of 1909. 2 Tins law sets aside sums of money which may
be advanced either as grants or as loans to associations not
organized for profit, for the purpose of aiding and developing
agriculture and rural industries, forestry, land reclamation
1 M. W. F. Treub, " L 'adjudication des travaux publics et la lutte
contre lc chdmage," Quarterly Bulletin on Unemployment, January-March,
1914, p. 249.
2 9 Edw. 7, C. 47.
19
2,)o PRINCIPLES OF LABOR LEGISLATION
and drainage, rural transportation, harbors, inland navi-
gation and fisheries. The act was not passed primarily
as an unemployment measure, but contains the provision
that when the execution of any work involves the em-
ployment of labor on a considerable scale the commis-
sioners must take into consideration "the general state
and prospects of employment." Under this clause a cer-
tain amount of influence can be exerted toward the timely
initiation of public improvements, but its scope is usually
overestimated. 1
The principle under discussion has, however, taken firm
hold among those interested in combating involuntary idle-
ness, and in 19 13, as the result of careful studies in many
countries, the following recommendations were laid before
the International Conference on Unemployment: (1) That
public works be distributed, as far as possible, in such a way
that they may be undertaken in dull seasons or during in-
dustrial depression; (2) that budget laws be revised to facili-
tate the accumulation of reserve funds for this purpose; (3)
that permanent institutions be created to study the symptoms
of depression in order to advise the authorities when to
initiate the reserved work; (4) that such work as land rec-
lamation and improvement of the means of communication,
which would tend to increase the permanent demand for
labor, be especially undertaken; and (5) that in order to secure
the fullest benefits from the reserved work, contracts should
be awarded not as units but separately for each trade.
4. Regularization of Industry
While methods of utilizing public work to counteract the
fluctuations of employment in private industry have for some
time occupied the attention of lawmakers, recently the de-
mand has found legislative expression that private industry
turn some attention to solving the problem at its source by
reducing, if not eliminating, these fluctuations. Regulariza-
1 A. D. Hall, "The Development Act and Unemployment," National
Conference on the Prevention of Destitution (Great Britain), Report of
the Proceedings of the Unemployment Section, 191 1, p. 245.
UNEMPLOYMENT 291
tion of industry is demanded by the interests of employer and
employee alike. The employer, with an expensive plant, re-
quires steady production to keep down overhead expenses
and to secure the best returns from the business; the em-
ployee needs steady work to prevent destitution and conse-
quent demoralization. It is not surprising, therefore, to find
government exerting pressure to the end that, as far as pos-
sible, every job be made a steady job. Society has in the
past attempted to adjust itself to the ups and downs of
business; it is now beginning to insist that business avoid
ups and downs.
Methods of regularization are as various as the industries
concerned, if not as various as the individual establishments.
Many employers have found it economical to organize em-
ployment departments for the purpose of studying and
remedying fluctuations in the size of the working force, and
in Boston, New York, and Philadelphia associations of em-
ployment managers have been formed to discuss their common
problems. Through these departments considerable hardship
has been avoided by reducing excessive "turnover" of labor,
by transferring workers from slack departments to busy ones
instead of discharging them, and by employing the whole
force on part time rather than part of the force on full time.
Careful planning of output for months or even for a year
ahead, the development of supplementary lines such as tennis
shoes and rubber tires in a rubber-shoe factory, and special
measures to overcome weather conditions, such as the intro-
duction of artificial drying in the brick industry, have also
been found helpful. Through cooperation with other em-
ployers for the maintenance of a common reserve of labor in-
stead of a separate supply for each firm, the intermittent char-
acter of such occupations as the building trades and dock
work has been effectually reduced.
Employers, however, are frequently no more far-sighted
than are other persons in the community, and may neglect
what is obviously to their own and other persons' economic
advantage if it requires much additional exertion or fore-
thought. Hence arises the need for governmental stimulus
toward regularization which is found in some of the newer
legislation on unemployment.
2Q2 PRINCIPLES OF LABOR LEGISLATION
(7) The Liverpool Dock Scheme
Perhaps the most striking illustration of what can be done
to "decasualize" casual employment is the system now in
operation on the Liverpool docks, where thousands of men
used to eke out a precarious and irregular 'longshoreman's
livelihood. Each ship company sought to attract enough men
every day to meet the need on the busiest days, and it has
even been alleged that some employers deliberately parceled
out the work so that many more than the usual number em-
ployed were encouraged to be on hand and available when
wanted. 1
To counteract the demoralizing results of this chronic
underemployment, what is known as the Liverpool dock
scheme was inaugurated by the British Board of Trade in
July, 19 1 2, under authority of the unemployment insurance
part of the national insurance act. In the first year of its
operation sixty-eight employers became parties to the plan,
and 31,000 dockers were registered. 2 A metal tally was
issued to each man; only men holding tallies are employed,
and new tallies can be issued only with the approval of the
joint committees of workmen and employers which are assist-
ing to administer the scheme. Workmen who fail to be hired
at the employers' regular stands go to one of fourteen "sur-
plus stands," which are in communication by telephone with
one another and with the six sectional clearing houses that
have been established in connection with the government
labor exchange. The system makes it possible to do the
same work with fewer men, but these are employed much more
regularly. The adjustment is said to have caused temporary
hardship for some workmen, but it is hoped that in time each
employer will keep the nucleus of a force on regular wages
and rely for extra men on a fluid reserve to be maintained
jointly by all the employers of the port. 3 The advantages of
maintaining one reserve for the industry as a whole instead
of separately for each employer, are obvious. Somewhat
1 R. Williams, The Liverpool Docks Problem, 1912, pp. 10-12.
2 Beveridge and Rey, " Labour Exchanges," Quarterly Bulletin on Unem-
ployment, July-September, 1913, p. 789.
3 See R. Williams, First Year's Working of the Liverpool Dock Scheme,
UNEMPLOYMENT 293
similar schemes are in force among the dockers of Goole and
of Sunderland, the cloth porters of Manchester, and the ship-
repairers of Cardiff and Swansea. 1
Headway can be made to some extent against seasonal
fluctuations also, under the proper encouragement of an effi-
cient labor exchange system. During the winter, for instance,
it has been suggested that building laborers could be assisted
to take up ice-cutting or logging, or to secure some of the
less skilled work in shoe, textile, or other factories which are
busier at that season. Through the London employment ex-
changes women's work in ready-made tailoring, which is
busiest in the spring and fall, has been dovetailed with hand
ironing in laundries, which is heaviest during the summer.
(2) Recent Progress
Distinct progress is shown in the laws of 1915 establishing
state employment bureaus in Illinois and Pennsylvania, both
of which instruct the administrative authorities to take steps
toward the regularization of employment. The Illinois stat-
ute is particularly comprehensive on this point, reading as
follows: 2
"The said general advisory board in cooperation with the
secretary of the bureau of labor statistics and the local ad-
visory boards shall place themselves in communication with
large employers of labor, including municipal and other pub-
lic authorities, and attempt to bring about such cooperation
and coordination between them by the dovetailing of in-
dustries, by long-time contracts, or otherwise, as will most
effectively distribute and utilize the available supply of labor
and keep it employed with the greatest possible constancy
and regularity. They shall devise plans of cooperation with
this object in view and shall seek to induce the organization
of concerted movements in this direction. They shall also
endeavor to enlist the aid of the federal government in ex-
tending these movements beyond the state."
1 Beveridge and Rey, Quarterly Bulletin on Unemployment, July -Sep-
tember, 191 3, pp. 795-799-
2 Illinois, Laws 191 5. S. B. 24, Sec. 1 (c).
294 PRINCIPLES OF LABOR LEGISLATION
It will be noticed that this clause contemplates the adjust-
ment of public as well as of private work. Much good should
come of it, if properly administered, and its operation will
be watched with close interest. A more definite inducement
to the regularization of industry on a comprehensive scale
is offered through the establishment of unemployment in-
surance. 1
!See "Unemployment Insurance," p. 409.
CHAPTER VII
SAFETY AND HEALTH
Prominent among the problems which the industrial revo-
lution brought in its wake is that of maintaining safety and
health in work-places. As long as industry was chiefly
agricultural, or carried on about the family hearth, with tools
relatively few and simple, the individual laborer might con-
trol the physical conditions under which he worked. But the
drift during the late eighteenth and the early nineteenth cen-
turies from farming to manufacturing, and from homestead
to factory methods, placed a growing proportion of wage-
earners in a new environment. They toiled now upon prem-
ises controlled not by themselves, but by another — the em-
ployer. Instead of working in isolation or in small groups,
hundreds were collected under one roof where the error or
illness of one might affect all his neighbors. New machinery,
new chemical processes, new forces such as electricity and com-
pressed air, have been ceaselessly developed, each involving
its own special dangers. Upon all production, speed, the rul-
ing spirit of a machine age, has imposed its exactions. Nor
have subjective factors been without their influence. Igno-
rance, recklessness, and inertia, manifested now by the leaders
of technical research, now by the masters of industry, and
not infrequently by the workers themselves, have contrib-
uted to create a situation in which the statistics of industrial
accident and disease are often justly compared with those
of the world's great battles.
Conservation of the life, health, and energy of our millions I
of wage-earners is not an individual question. It is a social I
question, demanding social action. This does not mean that'
private or voluntary efforts of the workmen, or of their em-
ployers, or of their physicians, should be in any way dis-
2 9 6 PRINCIPLES OF LABOR LEGISLATION
couragcd. On the contrary, such voluntary efforts should be
vastly increased. But the prevention of industrial accidents
and diseases is too great an undertaking to be left entirely to
individual action.
Though more than half the waking hours of the ordinary
wage-earner are spent at his place of employment, it is one
of the fundamental disharmonies of present-day industry
that he has little or no control over the conditions which there
surround him, and which so profoundly affect his well-being
and even his life. Individual complaint frequently leads to
loss of employment rather than to improvement of conditions.
As a member of a labor union the worker's power is potentially
increased, but is often, for various reasons, not effectively
exerted. Regulation of the physical conditions of employ-
ment cannot, on the other hand, be safely entrusted to the
individual employer, whose principal business, under com-
petitive conditions, is to secure profits. While many em-
ployers are exercising the utmost consideration for their
work-people out of motives of humanity, and many more are
doing so on grounds of efficiency, such motives cannot be said
to have developed into a controlling principle of industrial
life. Nor can the industrial accident and disease problem
be left to medical treatment alone, for prevention and not
after-care is the solution. Not only on account of the mag-
nitude of the problem, but also because of its nature, the pro- j
tection of the wage-earner from dangerous conditions of em-j
ployment is a proper function of government.
Frequently it happens that without the aid of uniform legal
regulations to force the recalcitrant minority into line, even
a vast majority of the manufacturers in an industry are power-
less to bring about reforms which they freely admit are de-
sirable. A striking example of this was revealed by the three-
year campaign which culminated successfully in the poisonous
phosphorus prohibition act. Match manufacturers represent-
ing 95 per cent, of the total product testified before Congress
that they could not substitute a harmless compound for the
slightly cheaper poison without a uniform law compelling all
employers in that industry to abandon the poison. All of
the other match manufacturers, representing the remaining
5 per cent, of the product, stood out stoutly to the last, even
SAFETY AND HEALTH 297
declaring that they would close their factories before they
would submit to this sanitary measure, already in compulsory
operation in practically all civilized countries of the world.
It required labor legislation to end the use of this unnecessary
deadly poison before "phossy jaw," the most loathsome of
all industrial diseases, could be abolished.
Legislative activities for the control of industrial accidents /
and occupational diseases have developed in all important /
countries along four main lines, namely, (1) reporting, (2)
prohibition, (3) regulation, and (4) compensation or insur-
ance. All four lines of activity are closely interrelated, and
depend for success largely upon one another. Reporting of
accidents and diseases is purposeless unless it leads to pro-
hibition or regulation of the sources of danger, and is likely
to be incomplete if not made part of a proper system of com-
pensation administration. Effort for prohibition and regula-
tion gropes in the dark without the light of experience made
available through thorough reporting, and is apt to be feeble
unless stimulated by the cooperative financial pressure exerted
by compensation. Compensation, in turn, is deprived, by lack
of careful reports, of the necessary actuarial basis for success-
ful operation, and accomplishes but the minor part of its pur-
pose if the payment of benefits fails to lead to systematic efforts
at prohibition or regulation. Upon the combined development
of all four devices depends the efficacy of the essentially mod-
ern movement for the protection of the industrial worker's
life, limb, and health. Leaving the fourth step, compensa-
tion, for treatment under "Social Insurance," this chapter
will concern itself with the first three methods of attack.
1. Reporting
While in many matters of social interest the gathering of
statistics is well developed, in others only the beginnings have
been made. In industry, for example, we know much about
the value of the raw materials and of the product, but com-
paratively little about the accidents and diseases which are
entailed upon the workers in the creation of that product.
Yet there can be no more important link in the whole chain
2 q8 PRINCIPLES OF LABOR LEGISLATION
of social effort for the prevention of industrial death and
disability than the securing of accurate data as to the nature
of the hazards, their extent, and the particular industries
and establishments in which they are most rife. The acquisi-
tion of this knowledge is an integral part of the modern
movement for the protection of life and health. It re-
veals the "sore spots" of industry. Not only does it point
out conditions introduced by changing methods in manufac-
ture and elsewhere which call for correction, but after cor-
rective legislation has been secured it acts as a valuable guide
to and check upon the efficacy of the administrative authori-
ties.
Such information, however, until comparatively recent
years, had been intelligently sought, if at all, only incidentally
by special commissions which investigated some more press-
ing phase of industrial abuse, submitted their reports, and
disbanded. The idea of a permanent census on the matter
is of tardy development.
(/) Accidents
It was not until 1886 that any American state placed an
accident-reporting law upon its statute books, and again, as
in many other matters of labor legislation, it was Massa-
chusetts which took the lead. By the act of June 1, 1886,
manufacturing and mercantile corporations were required to
report to the chief of the district police, the organization which
then had charge of factory inspection, accidents occurring in
their establishments and causing death or four or more days'
disability. A penalty was provided for failure to comply.
Four years later the law was extended to apply to all pro-
prietors of the designated classes of establishments, instead
of only to corporations. Similar statutes were enacted in
Ohio in 1888, Missouri in 1891, Rhode Island in 1896, and
elsewhere during the same decade.
These early laws did not bring satisfactory results. Fees
have seldom been offered for accident reports, and employers
have appeared reluctant to give their establishments an un-
enviable reputation for danger. Official enforcement, too, has
SAFETY AND HEALTH 299
been lax. Prosecutions for failure to report have been rare,
and the imposition of the stated penalties still rarer. "In
none of them," said a federal investigator in 1897, of eight
states which then had reporting laws, "is there any pretense
that anything like complete returns of accidents are ob-
tained." l
Since that time, in spite of its shortcomings and inade-
quacies, so useful has reporting proven itself as a guide for
inspection, safeguarding and advanced legislation, that it has
steadily spread not only to new states, but to new branches of
industry. 2 The kind of accidents to be reported varies great-
ly, ranging from all injuries in the more advanced states to
only those which result in death or in the incapacity of the
injured workman for a stated length of time, as for two days,
one week, and in rare cases for two weeks. The time of re-
porting is variously fixed at "immediately," twenty-four or
forty-eight hours, two weeks, once a month, and, in Louisiana,
" semi-annually." Accidents occurring to employees under
the workmen's compensation acts must usually be reported
immediately. Notification by mail on a blank provided by
the proper state authority is in most cases sufficient, but in
connection with fatal railway and streetcar accidents a tele-
phone or telegraph report, followed by a detailed written
statement, is often obligatory. Reports are usually made to
the state department of factory inspection, and a wide range of
questions must be answered. A standard schedule adopted
for use in important industrial states containing about half
the manufacturing wage-earners of the country is divided
into sections on (1) employer, place, and time, (2) injured
person, (3) cause, and (4) nature and extent of injury, and
each section asks a number of questions found by long
experience and careful study to be most successful in eliciting
the desired information. 3
'United States Bureau of Labor, Bulletin No. 12, September, 1897,
p. 565.
2 A standard bill for industrial accident reports, drafted by the Ameri-
can Association for Labor Legislation in 191 2, has been passed in several
states. See United States Bureau of Labor Statistics, Bulletin No. 757,
1915, "Industrial Accident Statistics," Frederick L. Hoffman, p. 151.
3 This schedule was prepared by the American Association for Labor
Legislation, and has been indorsed by the American Statistical Associa-
tion, the United States Bureau of Labor Statistics, the Workmen's Com-
3 oo PRINCIPLES OF LABOR LEGISLATION
While much progress has been made since the beginning of
the reporting movement in 1886, much remains to be done in
the direction of extending and of introducing uniformity into
the system. In a few states, and for a limited number of
industries, good work is being done, 1 but the failure to cover
all dangerous occupations and the wide differences in the
meaning of reportable accident still render the data confus-
ing and incomparable as between states. For a comprehen-
sive view of the situation in all industries and throughout the
country dependence must for the present be placed on the more
or less scholarly estimates which appear from time to time.
What is perhaps the most accurate as well as one of the
most recent of these studies is based upon insurance experi-
ence with nearly 38,000.000 lives, and places the number of
fatal industrial accidents for 19 13 at 25,000, and the number
of injuries involving disability of more than four weeks at
700,000. 2 The detailed figures are shown in the chart on
the following page.
Eight industries, it appears, are more hazardous than ser-
vice in the United States Army, and of these mining, with
metal mining predominating, is the most dangerous. Rail-
roading, electrical work, and quarrying are high on the list,
while general manufacturing, including ordinary factory
work, is apparently safer than agriculture, in which the in-
troduction of power-driven machinery has of late been add-
ing peculiar new hazards to those previously involved in the
handling of live animals. What these thousands of acci-
dents, occurring in every industrial state and country, mean
in terms of suffering, interrupted wage-earning, lowering of
efficiency and deterioration of standard of living, our com-
pensation laws are at last beginning to reveal with something
like scientific accuracy.
pensation Service Bureau, and the National Council for Industrial
Safety. Up to October 1, 191 5, it had been adopted by the labor depart-
ments of California, Iowa, Massachusetts, Minnesota, Nevada, New
Hampshire, New York, Pennsylvania, and Washington.
1 Especially excellent is the reporting work done by several industrial
accident or workmen's compensation boards, notably those of California,
Massachusetts, New York, Ohio, and Wisconsin.
2 United States Bureau of Labor Statistics, Bulletin No. 15/, p. 6.
3 o2 PRINCIPLES OF LABOR LEGISLATION
(2) Occupational Diseases
Hardly less serious, if any, than the misery and waste caused
by industrial accident is that entailed through the more in-
sidious danger of occupational disease.
(' Occupational disease has been defined as "morbid results of
occupational activity traceable to specific causes or labor con-
ditions, rind followed by more or less extended incapacity for
Work." * American interest in the subject is mainly a product
of the last few years. In 19 10 it was possible to record only
the appointment of the Illinois Occupational Disease Com-
mission, the completion of an investigation of phosphorus
poisoning in the match industry, and the holding of the First
National Conference on Industrial Diseases, an expert com-
mittee of which drew up a memorial on the subject for presen-
tation to the President of the United States. Practically
all of the many interesting American investigations and re-
ports on this subject have been made since that time.
The principal industrial health risks, as far as we now know
them, may be conveniently classified according to their nature
as follows: (1) dangerous gases, acids, and dusts (poisonous
and non-poisonous); (2) harmful bacteria and micro-organ-
isms; (3) compressed or rarefied atmospheres; (4) improper
lighting; (5) extremes of temperature and humidity; (6) ex-
cessive strain. Almost every calling involves danger from
one or more of these.
Considering merely the industrial poisons, "those raw ma-
terials and products, by-products, and waste products which,
in their extraction, manufacture, and use in industrial proc-
esses may, notwithstanding the exercise of ordinary pre-
caution, find entrance into the body in such quantities as to
endanger by their chemical action the health of the work-
man employed," we find already prepared a careful list of
fifty-four, 2 one of which alone, lead, is in daily use in more
than 150 trades, causing "painters' colic," "wrist drop," or
1 "Memorial on Occupational Diseases," American Labor Legislation
Review, Vol. I, No. 1, January, 191 1, pp. 125-143.
2 United States Bureau of Labor, Bulletin No. 100, May, 1912, 'List
of Industrial Poisons and Other Substances Injurious to Health Found
in Industrial Processes," Th. Sommerfeld and R. Fischer, pp. 733~759'
SAFETY AND HEALTH 303
even death. Connected with dusty trades of all sorts, from
silk-weaving to quarrying, are found the non-poisonous dusts
which by infiltration and mechanical irritation produce the
various occupational lung diseases. Moreover, the bacillus
of anthrax may infect tanners and workers on hair goods,
while ankylostomiasis, or "miners' hookworm," menaces
those who toil in warmth and moisture underground. The
tunnel and caisson worker dreads compressed-air illness.
Less easy to trace, but perhaps even more widespread, are the
obscure ailments which may arise in any industry, from in-
sufficient or excessive lighting, from extremes of heat, cold,
and humidity, or from work too heavy, too persistent, and
too intense without adequate periods of rest.
Incomplete as is our information on the prevalence and seri-
ousness of industrial accidents, even more incomplete is it
with regard to specific trade maladies, some of which arc
now being recorded in our hospitals and dispensaries. The
first American law for the compulsory reporting of these
diseases was drafted by the Association for Labor Legislation
after investigation of similar legislation in England and was
enacted in California in March, 191 1. Within five years, as
the result of vigorous and sustained effort, sixteen states
enacted similar legislation. 1 The earliest of these laws called
for reports on all cases of anthrax, compressed-air illness, and
poisoning from lead, phosphorus, arsenic, mercury, or their
compounds, 2 to which were later added brass and wood alco-
hol poisoning. 3 The most recent tendency, however, is to
make the laws include "any ailment or disease contracted as
a result of the nature of the patient's employment," 4 in which
form they will probably be productive of more important
results.
The duty of reporting falls upon the physician, who may
be either a general practitioner treating the case, or, in states
requiring a monthly medical examination of workers in special-
ly hazardous trades, the physician making such examination.
1 California, Connecticut, Illinois, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York,
Ohio, Pennsylvania, Rhode Island, and Wisconsin.
2 California, Laws 1911, C. 485.
3 Connecticut, Laws 1913, C. 14; New York, Laws 1913, C. 145.
4 Massachusetts, Laws 1913, C. 813, Sec. 6.
3 04 PRINCIPLES OF LABOR LEGISLATION
A standard certificate has been adopted in a majority of the
reporting states, 1 and requires the name and address of both
employee and employer, the nature of the business, the diag-
nosis and symptoms of the disease, and other pertinent in-
formation. In most cases reports must be made to the state
labor department, but occasionally they go to the board of
health, which transmits them to the labor department. In
a very few cases 2 a small fee of 50 cents is allowed for send-
ing in notices, but even where this is not done it is not felt
that any undue hardship has been caused to the medical pro-
fession by placing upon them this added duty.
Reliable statistical data for the country as a whole are,
however, still lacking. Again we must fall back on estimates,
and careful American authorities declare, on the basis of Ger-
man experience, that numbering our gainfully occupied popu-
lation at 33,500,000 no fewer than 284,000,000 days' ill-
ness occur annually, causing a social and economic waste of
nearly $75o,ooo,ooo. 3 Of this enormous waste fully one-
quarter, it is computed, could be prevented by deliberate
effort, largely in the direction of greater care and cleanliness
in the nation's workshops. Many unhealthful conditions in
industry, also, while they may not lead to actual absence
from work, are nevertheless productive of unnecessary physi-
cal discomfort which reacts badly on the worker's health and
strength. The effects of these daily minor drains upon in-
dustrial efficiency are necessarily difficult to trace or to meas-
ure, but they must in the aggregate be enormous.
2. Prohibition
The method of prohibition for the safeguarding of indus-
trial workers is usually resorted to only under severe provoca-
tion. But at times it appears to be the only effective way of
removing an intolerable industrial hazard, and instances of
its use are multiplying.
1 California, Maine, Maryland, Massachusetts, New Hampshire, New
Jersey, New York, Ohio, and Wisconsin. Like the standard accident
schedule, this certificate was drafted after careful study by the Associa-
tion for Labor Legislation. 2 California and Connecticut.
3 Memorial on Occupational Diseases.
SAFETY AND HEALTH 305
There are two ways in which the prohibitive method may
be applied. First, it may be used to exclude from employ-
ment those most susceptible to danger, whether children,
women, or certain classes of men. Second, it may be used to
outlaw the substances or instruments which render employ-
ment dangerous.
(j) Exclusion of Persons
a. Children. Provisions for the exclusion of persons from
industrial pursuits have been carried further with regard to
children than with regard to any other group of wage-earners,
on the general theory that the child is the special ward of the
state and most in need of special measures of protection.
The dangers thus sought to be guarded against may be
to the child's life, limb, health, or morals, 1 and the restric-
tions which have grown are based on considerations of age,
physique, and education.
(a) Age Requirements. The past century has witnessed an
almost complete reversal of public opinion as to the proper
age at which children should become breadwinners. With-
out scruple, and even in the belief that they were acting
charitably, the American colonists received from England as
bound apprentices large numbers of orphans and children of
the poor, ten to sixteen years of age, some even as young as
seven years. Laws were passed to keep these boys and girls
profitably employed, partly for the benefit of the community
and partly to save them from the dangers of idleness. When
manufactures arose Alexander Hamilton approved of them as
rendering children "more useful and . . . more early useful
than they would otherwise be." 2
These colonial traditions have now gone down before a
standard of working age based on the observed harmful effects
of premature labor. In 184S 3 Pennsylvania forbade the em-
ployment in textile establishments of children under twelve,
a standard which it the following year 4 raised to thirteen.
1 See, for instance, Kansas, General Statutes 1909, Sec. 5095.
2 Alexander Hamilton, Works, Vol. Ill, p. 207.
3 Pennsylvania, Laws 1848, No. 227. 4 Ibid., Laws 1849, No. 415.
20
3 o6 PRINCIPLES OF LABOR LEGISLATION
Within the next decade a twelve-year limit was established
in Rhode Island, 1 and a ten-year limit in New Jersey 2 and
Connecticut ; 3 in all three states the law covered manufac-
tures, and in Connecticut it covered mechanical establish-
ments also. In none of these states was any proof of age
required, and enforcement was everywhere very lax.
The first state to provide a special officer to sec that its
age restrictions on the employment of children were obeyed
was Massachusetts, in its law of 1867. 4 The previous year,
following a report by a commission on hours of labor, a law
had been passed forbidding the employment of children under
ten years of age in manufacturing establishments. The gov-
ernor at his discretion might instruct the state constable and
his deputies to enforce the law. It seems, however, that the
governor did not see fit to give such instructions, and in 1867,
when the act was amended to cover mechanical establish-
ments as w T cll as manufacturing, it was made a duty of the
state constable to detail a deputy to enforce all laws regulating
the employment of children.
About this same period the national labor organizations
became active in demanding the legal prohibition of child
labor below a minimum age limit. In 1876 laws against the
employment of children under fourteen years of age were
advocated by the Working Men's Party at a congress in
Philadelphia, and about the same time the Knights of Labor
took a stand for the prohibition by law of their employment
under fifteen years of age in workshops, mines, and factories.
The American Federation of Labor, organized later, indorsed
the same standard. Since then many influential societies
and women's clubs, as well as labor organizations, have sup-
ported and worked for the legal prohibition of child labor.
In 1904 the National Child Labor Committee was formed to
act as a clearing house for information on child labor, to in-
vestigate conditions, to educate public opinion, and to pro-
mote legislation.
The result of the work of this national committee and the
1 Rhode Island, Laws 1853, p. 245.
2 New Jersey, Laws 1851, p. 321.
3 Connecticut, Laws 1856, C. 45.
4 Massachusetts, Laws 1867, C. 285.
SAFETY AND HEALTH 307
various agencies that have cooperated with it is a large body
of legislation restricting the employment of children. All
states now forbid the employment of children in one or more
kinds of work until they have passed a fixed age limit. The
fourteen-year minimum age limit is established for general
factory work in all except six states. 1 In most states docu-
mentary proof of a child's age is demanded, and working
permits or employment certificates must be obtained by
the children and placed on file in the establishment before
they can be employed therein.
The age limit in some of the earliest child labor laws ap-
plied only to cotton and woolen factories and to a few other
special industries where the evils of child labor were sup-
posed to be most flagrant. In other laws the prohibition was
general for all work in "manufacturing or mechanical estab-
lishments." It is only in comparatively recent years that
the minimum age limit for employment has been applied in
the majority of states to mercantile establishments and other
places of employment as well as to factories. Several states
still have a different age limit for the employment of children
in stores and offices from that for employment in factories. 2
In most states children under fourteen years of age are now
excluded from employment in a list of establishments in-
cluding, in addition to factories, mills, workshops, and stores,
certain other places — such as hotels, restaurants, laundries,
bowling-alleys, and theaters — where conditions appeared to
warrant such exclusion.
Nevertheless, most of the state laws are defective in that
they fail to cover all the occupations from which children
should be excluded. In fact, the rapidly changing industrial
conditions render it practically impossible to draw up a list
of occupations that will be complete for any length of time,
even though it is complete at the time the law is enacted.
The tendency of those who are experienced in drafting child
labor laws now is to use the general term "in any gainful oc-
1 Utah has no age limit for general factory work; New Mexico, North
Carolina, and South Carolina have a twelve-year limit; in Georgia
widows' children and orphans between twelve and fourteen may be
employed on special permission of a commission of three public officials;
and in Mississippi the age limit is twelve for boys and fourteen for girls,
2 See, for instance, Alabama, Laws 19 15, C. 169.
3 o8 PRINCIPLES OF LABOR LEGISLATION
cupation, ' ' instead of a specified list. Agriculture and domestic
service are exempted from this general prohibition, except in
the Arkansas law enacted by initiative and referendum in 19 14.
The fact that so much progress has been made in the last
decade in the enactment of child labor legislation, and that
the fourteen-year limit has been so generally established,
especially for factory work, does not mean that premature
employment of children is eradicated. There is serious danger
that since the most sensational stages in the fight against
child labor have passed, public opinion will become apathetic
and not perceive the inadequacies of laws that may have at
one time been a great step in advance. Unfortunately most
of the laws bear the scars of conflicts with short-sighted legis-
lators as well as with powerful interests who either looked upon
the employment of children as necessary to their prosperity
or considered prohibitive legislation an encroachment on
their business rights. Exemptions — chief of which has been
the exemption of the "poor widow's" child and children of
"dependent parents," a relic of the days of the Elizabethan
poor law — have been the curse of child labor laws.
In addition to the minimum age of fourteen for entrance
to general factory work, many states set a limit of sixteen
years for certain more dangerous processes, and in some
states an additional two years' maturity is required for en-
trance to a number of extra-hazardous occupations. The
first group of occupations may include such employments as
the cleaning and oiling of machinery, the adjusting of belts,
the operation of machine saws or of stamping, washing, grind-
ing, and mixing machines, and the manufacture of lead prod-
ucts or of compositions containing poisonous acids, 1 while in
the second group is work in mines, at blast furnaces, or on
railroads, in the outside erection of electric wires, or in the
manufacture of explosives. 2 Some states have established
minimum limits as high as eighteen or even twenty-one for
night messenger service or other morally dangerous work. 3
1 Connecticut, Laws 191 1, C. 123.
2 Arizona, Revised Statutes 1913, Sec. 3127. _
3 New York, for instance, has a twenty-one year minimum for night
messenger service (Laws 1910, C. 342), and Michigan a similar minimum
for work in theaters or the like where intoxicants are sold (Laws 191 5,
No. 255).
SAFETY AND HEALTH 3°9
A growing tendency is manifest to give to state boards of
health or state labor departments power to add to the lists
of dangerous and extra-hazardous employments. 1 Age re-
strictions for entrance to dangerous occupations have been
repeatedly upheld as a valid exercise of the police power,'
and in some states illegal employment of a child deprives the
employer of the defenses of assumption of risk 3 and con-
tributory negligence. 4 The provision empowering health
authorities and others to extend the lists of prohibited occupa-
tions for children of certain ages has been held not to be an
unwarranted delegation of legislative authority. 5
All the important countries of Europe possess similar grad-
uated restrictions upon engaging in remunerative employ-
ment at too extreme youth, and the principle of adding to the
lists of prohibited occupations by administrative authorities
is well established. Frequently, also, the authorities are per-
mitted to allow exemptions from the application of the laws. 6
A serious shortcoming of most of our child labor laws is
their failure to deal adequately with child labor on city
streets. We have more or less thoroughly prohibited the pre-
mature employment of children in factories, stores, and other
places, but have inconsistently allowed boys and girls of ten-
der years to be exposed to perhaps a worse moral and physical
environment in vending newspapers, gums, and other articles
on the streets, without sufficient regulation. At present only
one state, Kentucky, has the same age limit, fourteen years,
for all street trades as for other employment. Several states
have a fourteen-year limit for bootblacking and peddling,
and a twelve-year limit for newsboys. So far only about half
the states 7 have passed laws regulating the employment of
1 As in Massachusetts, Laws 1913, C. 831, Sees. 4, 6.
- Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 Atl. 642 (1907).
3 Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755 (1905)-
4 Strafford v. Republic Iron & Steel Co., 238 111. 371. 87 N. E. 358
(1909).
5 Louisville, Henderson & St. Louis R. Co. v. Lyons, 155 Ky. 396,
159 S. W. 971 (1913)- X7 _ . „ ,
6 For extended discussions of this matter see Bulletins No. ao and ag 01
the United States Bureau of Labor, on "Woman and Child Wage-Earners
in Great Britain" and "Child Labor Legislation in Europe," respectively.
7 In 1915 legislation on this subject was found in Alabama, Arizona,
Colorado, Delaware, District of Columbia, Florida, Iowa, Kentucky,
Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New
3 io PRINCIPLES OF LABOR LEGISLATION
children in street trades, and in these the prevailing age limit
for newsboys is twelve years. Because of the additional moral
danger to girls the age limit for them is usually four or six
years higher than for boys.
Suggestions have frequently been made that a uniform age
limit for all regular gainful occupations is not scientific, as
some children are more mature and fit to work at thirteen years
of age than others are at fifteen. No practical method has
yet been found, however, of determining the physiological
age of children, and the age limit will probably always prove
the most satisfactory standard. The purpose of the minimum
age is to prevent improper toil before the child has passed
the most formative period of adolescence, and also to give
the child a chance for a necessary minimum of education.
Recent scientific studies of the physical effects of modern in-
dustry on children, and recent investigations 1 of the educa-
tional needs of children in industry, have seemed to indicate
that the fourteen-year limit is not adequate in either of the
above respects. There is a strong tendency in the more ad-
vanced states to eliminate all children under sixteen from in-
dustry. Ohio had for several years a fifteen-year limit for
boys and a sixteen-year limit for girls. A new law with a
fifteen-year minimum age limit has been passed in Michigan, 2
chiefly through the efforts of the Employers' Association of
Detroit. Industries of the best type are finding that children
under sixteen do not pay. Organized labor, also, has taken a
determined stand for the sixteen-year minimum age during
the months in which the public schools are in session, and for
a sixteen-year compulsory education limit. Educators are
generally accepting this as the standard that must eventually
be adopted.
(b) Physical Requirements. While it may be impracticable
to substitute a physiological for the ordinary chronological
Jersey, New York, Oklahoma, Pennsylvania, Porto Rico, Rhode Island,
Utah, Virginia, Wisconsin. In Nevada the law merely makes children in
street employment subject to the control of the juvenile courts.
1 See, for instance, Child Labor Bulletin, Vol. I, No. I, "Child Labor and
Education"; United States Bureau of Education, Bulletin 1913, No. 19,
"German Industrial Education and Its Lesson for the United States,"
Holmes Beckwith; Seattle Children in School and in Industry, published
in 191 5 by the Seattle, Wash., Board of School Directors.
2 Michigan, Laws 1915, No. 255.
SAFETY AND HEALTH 311
age test, it is nevertheless true that physical development as
well as age should determine the child's eligibility for em-
ployment. So far state laws have not designated any stand-
ard physical requirements, but have merely contained the
rather meaningless provision that children must be physically
fit. A physical examination of all applicants for certificates
is now required by the laws of ten leading states. 1 In several
other states the official granting employment certificates is
authorized to ask for the physical examination of the appli-
cant if he considers him of doubtful health and strength.
Because of the lack of definite standards these examinations
depend for their value almost entirely on the physician who
happens to make them. In New York City, for instance, the
physical examination of applicants for certificates is well
standardized. Blanks are used in the examination of each
child which include not only the height and weight, but a
test of the eyesight and hearing, and an examination of the
condition of the teeth, the heart, the lungs, throat, and nostrils,
and the general physical condition. The same blanks are
used throughout the state, but in smaller towns they are usual-
ly very poorly filled out.
If the physical examination is to be a real test of the child's
fitness, the medical examiner must know the prospective place
of employment and have a knowledge of the conditions and
processes in the various industries in which children are em-
ployed. Under the English law, accordingly, the certifying
surgeon must examine the child in the factory where he is
entering employment, and if the child changes employment he
must be re-examined in the same manner. 2 Wherever medical
examination of children in the public schools is extensively
developed, the records of the child's physical progress
should be kept in such form that they can be compared with
the examination at the time the child proposes to leave school.
In smaller cities the simplest arrangement is for the school
medical examiner to make the examinations of children apply-
ing for certificates. In New York state, where certificates are
1 Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New Hamp-
shire; New Jersey, New York, Ohio, and Pennsylvania. The Massa-
chusetts act (Laws 1906, C. 502) was the first of this type.
2 Factory and workshop act, 1901 (1 Edw. 7, C. 22, Sec. 64 (3)).
3 i2 PRINCIPLES OF LABOR LEGISLATION
issued by the boards of health instead of by the public schools,
the examinations are, of course, supposed to be made by the
health officers, or under their supervision, and there is seldom
any cooperation with the school examiners.
A single examination at the time of application for em-
ployment certificates will not, however, even when it has been
put on a more scientific basis than at present, be sufficient
protection for the health of working children. In order that
children may not be injured by the work they do, examina-
tions must be repeated periodically. New York has recently
recognized this fact by establishing a corps of medical ex-
aminers under the department of labor, who have authority
to examine children in any industry, and on their recommenda-
tion the employment certificate of any child found to be un-
fit for the work he is doing is canceled. This provision will
probably be embodied in the laws of other states as public
opinion gradually comes to realize the necessity of safe-
guarding the child's health after he has entered industry
in the same way as is now being done to a large extent up to
the time that he leaves school.
(c) Educational Requirements. Merely to compel the child
to go to school until it is fourteen years of age does not guar-
antee the attainment of any definite minimum of education.
Hence a number of states forbid the employment of children
who do not come up to certain standards of knowledge.
These standards, however, vary considerably. About half
the states require only that applicants for employment certif-
icates be able to read and write English. Illinois requires liter-
acy, but not necessarily in English. Several states require
the attainment of certain grades in the public schools, or
equivalent instruction. The completion of the sixth grade
is the generally accepted standard, though five states already
require the completion of the eighth grade. 1
A greater number of states require attendance at school for
a minimum period either during the year previous to the birth-
day at which the child becomes old enough to go to work, or
during the year previous to the time the certificate is
issued. This required period of attendance may vary from
1 California, Colorado, Nebraska, New Hampshire, and Vermont
though applicable to children fifteen years of age in California.
SAFETY AND HEALTH 313
the entire school year l to twelve weeks or less. 2 Instruction
in certain specified subjects, usually reading, writing, spelling,
geography, and arithmetic through common fractions, is re-
quired in some states. 3
The provision that children who have been granted "work-
ing papers" but are under sixteen years of age shall attend
school unless regularly employed is common, but little atten-
tion has been paid to its enforcement. Once an employment
certificate has been secured the child is usually forgotten by
the school authorities, unless the law requires that the certifi-
cate be sent direct to the employer and returned by him to
the issuing office when the child's employment terminates,
the certificate at no time becoming the property of the child.
The principal benefit of such a provision is that it tends to
check children from leaving school to enter temporary "blind
alley" jobs.
Much of the time of the child under sixteen who drifts
from one dull, monotonous job to another is wasted, as far
as education and training are concerned. Consequently the
completion of the eighth grade seems little enough schooling
to require of children who go to work under sixteen.
(d) Special Problems in Enforcing Restrictions on Child Labor.
Difficult as it has been, and still is, to place comprehensive
child labor laws on the statute books, it is even more difficult
to build up their effective administration.
The principal agencies for the enforcement of child labor
laws are the departments of labor, the school authorities, and
in some states the boards of health. Probation officers and
private child welfare agencies may sometimes aid. In some
states special child labor inspectors are appointed; in fact,
factory inspection has usually begun with the enforcement of
the child labor law before other labor legislation was estab-
lished. In all cases, however, enforcement rests primarily
with the factory inspection organizations.
Few, if any, states have an adequate corps of inspectors, 4
and in the southern states, where the child labor problem is
1 In Maryland, Massachusetts, Ohio, and Oklahoma.
2 In Alabama, Florida, Georgia, and South Dakota.
3 In Florida, Kentucky, Maine, North Dakota, and Oregon,
4 See Chapter IX, "Admin a," p. 41 s
S . i PRINCIPLES OF LABOR LEGISLATION
most serious, the provision for enforcement is most meager. 1
The experience of state after state has demonstrated that
without state inspection child labor laws are dead letters.
The issuance of employment certificates is the first step
in the administration of the minimum standards for entrance
to industry. In most states where certificates are required
they are issued by the local school authorities. In New York
they are issued by the boards of health, which has proven
very unsatisfactory for the state as a whole, as the health officers
are for the most part poorly paid and busy with their other
duties, and look upon the issuing of certificates as a tedious
task thrust upon them without compensation. In seven states
only no employment certificates are required, the affidavit
of the parent being accepted as proof of age. 2
Under the prevailing method of issuance through the school
authorities uniformity is secured by the use of standard blanks
throughout the state, by regular monthly or more frequent
reports either to the commissioner of labor or to the state
superintendent of education, and by a certain amount of
centralized supervision on the part of these officials. This
method is the most practical because the school office is the
most convenient place for the children and their parents to
go to obtain the certificates ; because the local school authority
knows the child through his record or through personal con-
tact, and thus there is less likely to be falsification in regard
1 In North Carolina the commissioner of labor statistics has no power
to inspect if the employer chooses to prevent him. In Alabama the en-
forcement of the child labor law has been entrusted to the state prison
inspector, who must divide his time with the inspection of jails and alms-
houses. An investigation made in Mississippi by the National Child
Labor Committee in 19 14 disclosed in nearly every factory in the state
wholesale violations of the law passed in 191 2, which by way of enforce-
ment merely provided that the county sheriffs were to inspect the fac-
tories "at least once each month," and the county health officers to in-
spect "at least twice each year." Only two of these local officials were
found who had ever been inside the places they were supposed to inspect,
and not a single one knew the provisions of the law. Those who had paid
any attention at all to it had contented themselves with naively asking
the owner of the mill if he was living up to the law. (See Child Labor
Bulletin, Vol. II, No. 4, February, 1914, "The Majesty of the Law in
Mississippi," Edward N. Clopper.) Following the exposure the Missis-
sippi legislators finally passed a law providing a factory inspector.
2 Mississippi, New Mexico, North Carolina, South Carolina, Tennessee,
Texas, and Wyoming.
SAFETY AND HEALTH 315
to age; and because the local school authority is likely to be
much more interested in keeping the child in school and will
make more of an effort to point out the inadvisability of al-
lowing it to leave for some temporary and unnecessary em-
ployment. The enforcement of the compulsory education
law, also, is so closely connected with the enforcement of the
child labor law that the two should be coordinated under
the school authorities in each community. The same sets
of records are necessary for the issuance of certificates and
for the enforcement of the compulsory education law. The
school census, the record of the child's age on entering school,
and its progress in school are equally important to the en-
forcement of both laws. Applicants who have been refused
employment certificates should be reported at once to the
school attendance department in order that they may be re-
turned to school, and the names of all children to whom cer-
tificates have been granted should be reported to the princi-
pals of the schools. In the regulation of children's work in
street trades, badges to be worn conspicuously and renewed
annually have been found essential to enforcement, and the
responsibility for administration rests chiefly with the edu-
cational authorities.
Cooperation between the child labor inspectors and the
schools is necessary that both may discharge their respon-
sibility to the best advantage of the child. A careful issuance
of employment certificates and a thorough enforcement of
the compulsory education law make the work of the labor
inspector much easier. It is desirable, furthermore, that
truant officers have the power to inspect establishments where
children are employed, and they should be the local represen-
tatives of the state child labor inspectors, reporting to them
all violations and aiding them in getting evidence to bring
prosecutions. The actual presentation of evidence in the
courts should always be done by the state inspector, who is
free from local pressure.
The important provisions of what has been called a model
law in regard to employment certificates are as follows : '
No child under sixteen should be employed unless the child
1 Practically the provisions of the Ohio law (General Code, 1910, Sees.
7765-7770-
316 PRINCIPLES OF LABOR LEGISLATION
presents to the employer an employment certificate, which
should be kept on file during the child's employment and re-
turned to the issuing office when the employment terminates.
These certificates should be issued only by the local super-
intendent of schools, or by some one designated by him in
writing, and should be given only after the following docu-
ments have been received and placed on file:
( i ) The pledge of the, employer that he expects to employ
the child and will return the certificate to the issuing office
as soon as the child leaves his employ.
(2) The child's school record, stating the age, ability to
read and write, and school grade, signed by the principal of
the school that the child last attended.
(3) Evidence of age, in the following order: (a) birth cer-
tificate ; (6) baptismal record or passport ; (c) school record
or other documentary evidence; (d) in the absence of anything
else, affidavit of the parent, with one or two disinterested
citizens. The child should personally appear before the issu-
ing officer for examination, and the officer should satisfy him-
self that the child is at least fourteen years of age, is able to
read and write English, and has had a course of instruction
equivalent to seven yearly grades in the public schools.
(4) A certificate from the school physician, board of health,
or a licensed physician appointed by the board of education,
in the order named, showing that the child is physically able
to do the work for which it is to be employed.
The certificate should be transmitted by the issuing officer
to the employer, and should not at any time come into pos-
session of the child, to be used as a license for idleness. The
blanks should be furnished by the state commissioner of labor,
to whom should be sent monthly a list of the names of chil-
dren for whom certificates have been issued, returned, or re-
fused. Such lists should give the names and addresses of
the prospective employers and the nature of the occupations
in which the children intend to engage. Factory inspectors
and truant officers should be empowered to demand that
certificates be obtained to prove the age of children apparently
under sixteen who claim to be over that age. 1
1 The federal Children's Bureau has commenced the publication of
thorough investigations of the administration of child labor laws in
SAFETY AND HEALTH 317
Even more for the sake of uniformity in enforcement than
for uniformity in restrictions on child labor, federal legislation
is needed. The plan of the Palmer-Owen bill pending in the
third session of the 63 d Congress was to place the enforcement
in the hands of the federal department of labor, whose in-
spectors would be free from local bias or pressure. The work
of these inspectors, it is believed by those who promoted the
bill, would not obviate the need of state factory inspectors
or of interest in the enforcement of the law by local school
officials and others, but it would support the local authorities
and aid them in resisting any influences which might be
brought to bear to prevent their prosecuting for violations.
Advocates of the measure believe, also, that the federal
courts would be more likely to find against a man who vio-
lated a federal law regarding the employment of children than
the local courts are to convict for violation of state laws.
This would be an important gain, because it is not at all an
uncommon thing for the state factory inspector to have a
case dismissed by the judge after the most careful evidence
has been presented, merely because the judge does not see
that any great injustice has been done the individual child.
For the better enforcement of child labor laws cooperation
between all the different agencies that are interested is es-
sential. The standards which have been and will be estab-
lished in regard to the entrance of children into industry will
never be thoroughly enforced until the problem of adminis-
tration is taken up with the same enthusiasm and persist-
ence which have marked the campaigns for legislation.
b. Women. The exclusion of women from various branches
of industry is based primarily on their inherently weaker re-
sistance to certain health dangers, and sometimes upon moral
grounds or upon their special need for protection at certain
periods, as just before and after childbirth. Legislation to
this end is much less extensively developed in America than
in Europe.
(a) Prohibited Employments. In America almost all laws
forbidding the employment of women in designated occupa-
various states, pointing out the strength and weakness of the laws. The
first of these to appear was "Employment Certificate System in Con-
necticut," Helen L. Sumner and Ethel E. Hanks, 191 5.
3 i6 PRINCIPLES OF LABOR LEGISLATION
lions or under designated conditions relate to work in mines
and saloons. Work in mines is forbidden to women in most
of the mining states, 1 and work in saloons (except by mem-
bers of the family) in about fourteen states, 2 but in neither
of those occupations has the problem of female labor been as
serious as it is in England and in some other European coun-
tries where similar prohibitions are in force. In addition, a
few scattered provisions of various sorts are found. Two or
three states have forbidden the employment of women in
cleaning moving machinery. 3 Arizona forbids the w r ork of
women "in any capacity" in which they must remain standing
constantly, 1 and New York and Ohio forbid women to oper-
ate certain kinds of emery and other polishing wheels. 5 New
York also forbids the employment of women coremakers in
foundries if the cores are baked in the room where they are
made. 6
In Europe the evil effects of certain kinds of work are much
better known than in this country, and it is well recognized
that even the most careful regulation of working conditions
in these occupations would not suffice to prevent injury to the
health of women employed therein. Accordingly, European
legislation forbids the work of women in a fairly wide list of
occupations, most of which involve the presence of dusts,
fumes, vapors, gases or substances of a poisonous or clearly
harmful character. Among women workers in white lead,
for instance, it was discovered that a serious derangement of
the reproductive organs frequently occurred, and that the per-
centage of miscarriages and still-births among married women
was exceedingly high. Therefore, in most European countries,
and also in Argentina, women are forbidden to work in the
dangerous processes in which this poison is used. In France
1 Alabama, Arizona, Arkansas, Colorado, Illinois, Indiana, Maryland,
Missouri, New York, Oklahoma, Pennsylvania, Utah, Virginia, Wash-
ington, West Virginia, Wisconsin, Wyoming.
2 Connecticut, Idaho, Iowa, Louisiana, Maryland, Michigan, Missouri,
Montana, New Hampshire, New Mexico, New York, Texas, Utah,
Vermont.
3 Louisiana, Minnesota, West Virginia.
4 Arizona, Revised Statutes 1913, Sec. 31 15.
5 New York, Laws 1913, C. 464; Ohio, General Code 1910, Sec. 1027;
15 (as amended by Laws 191 1, p. 428).
6 New York, Laws 1913, C. 464.
SAFETY AND HEALTH 319
females are forbidden even to enter a place in which any one
of forty-six especially dangerous processes is carried on, and
nearly one hundred additional occupations are forbidden
except under special protective conditions. Similar lists are
found in the more important European countries and even
Spain, long backward in social legislation, has forbidden the
employment of women and minor children in a long list of
occupations. While it is true that women in foreign countries
often engage in work done only by men in this country, yet
many women are undoubtedly at work here in industries so
dangerous to their health that an extension of prohibitory
legislation is urgently needed.
(b) Childbirth Protection. It was not until 191 1 that the
prohibition of the industrial employment of women for a
stated period before and after childbirth became the subject
of legislation in America. Such statutes were passed by
Massachusetts in 191 1, New York in 19 12, and Connecticut
and Vermont in 19 13. The Massachusetts act is a rep-
resentative one. It forbids "knowingly" employing any
woman in "a manufacturing, mechanical, or mercantile
establishment" within two weeks before or four weeks after
childbirth. 1
The desirability of such additional protection for working-
women at the time of childbirth has been recognized by most
European countries and by several outside of Europe. The
prohibited period is generally similar to that found in America,
from two to four weeks before and from four to six or eight
weeks after confinement. European laws are also rendered
more effective than the American by their frequent connec-
tion with provisions for maternity insurance. 2 For instance,
under the German system of health insurance, a woman
worker is paid benefits of half-wages for eight weeks follow-
ing confinement, or longer if she is unable to return to work
at the end of that time. Such insurance is needed partly to
make up for the income loss during the enforced period of
idleness, and may also be an important aid in the enforce-
ment of the law. The necessity for such law in effective form
is, however, undoubtedly less in this country than abroad,
1 Massachuseti ;, Laws 1911, C. 229.
2 Sec "Maternity Insurance," p. 393.
320 PRINCIPLES OF LABOR LEGISLATION
where the employment of women with young children is much
more frequent.
c. Men. Legal regulations for the exclusion of men from
dangerous employments are never of universal application,
as they are in the case of children and women, but are limited
to certain classes or groups of individuals who must be ex-
cluded on definite grounds, usually ascertained by examina-
tion. The grounds of exclusion may be either physical or
technical. Although the distinction does not always hold,
physical requirements are in the main intended to protect
the worker who is debarred, while in the case of technical
qualifications the protection of fellow-workmen or of the gen-
eral public is an added if not the main consideration. Physi-
cal qualifications, also, are usually concerned with health;
technical qualifications with safety.
(a) Physical Qualifications. Physical qualifications estab-
lished by law are of four kinds: (i) reasonable immunity from
the trade malady characteristic of the employment; (2) free-
dom from a trade malady contracted in the course of em-
ployment; (3) freedom from a contagious disease which might
be passed on to other workmen or to consumers of the product ;
and (4) freedom from physical defect of such nature as to
interfere with the proper performance of duty. It will be
noted that the first two qualifications look toward the health
of the workman himself, and that the last two look mainly
toward the health and safety of other persons.
The qualification of immunity from a particular occupation-
al disease was found in 191 5 in only two American laws, but
is more common abroad. The New York 1 and New Jersey 2
statutes regulating work in compressed air require that ap-
plicants must be found physically qualified by a physician
paid by the employer, and these laws also exclude persons
addicted to the excessive use of intoxicants. In Europe
examinations for entrance to compressed-air work are re-
quired in France and in Holland, the latter country specify-
ing a long list of ailments, such as obesity, heart or lung dis-
eases, and affections of the nose and ears, any one of which
debars from the work. Austria bars from work in paper-
1 New York, Laws 1909, C. 291.
2 New Jersey, Laws 1914, C. 121.
SAFETY AND HEALTH 321
mills all workers with open wounds, persons with delicate
respiratory organs, and consumptives. Still more common is
the requirement of a medical certificate of fitness as a condi-
tion of entering the more dangerous lead trades, which is
found in Austria, France, Germany, Great Britain, and Russia.
Germany specifically prohibits the employment in these
trades of applicants with lung, kidney, or stomach trouble, a
generally weak constitution, or an addiction to alcohol; France,
of those who exhibit symptoms of lead poisoning or of any
complaint likely to be dangerously aggravated by plumbism.
Belgium also forbids the employment of alcoholics in the
white lead, lead oxide, or lead paint trades.
It is obvious, however, that merely debarring from entrance
to an unhealthy trade those demonstrably susceptible to its
dangers is insufficient protection. The worker's real power of
resistance to a specific hazard often cannot be determined
until he has been exposed to it, and if he begins to show
symptoms of succumbing he cannot be too quickly removed.
Hence arises the necessity for the second qualification, free-
dom from a trade malady contracted in the course of em-
ployment.
Most common occupational diseases are of such slow in-
ception that a capable physician can detect them in the early
stages before their cumulative effects have become serious.
To make sure, therefore, that the originally healthy employee
is in fact successfully resisting the risk with which he is sur-
rounded, the initial examination, when it is given, must be
supplemented by periodical re-examinations at intervals grad-
uated according to the degree of risk. Sometimes periodic
examinations are required even when there are no restrictions
upon entrance to the trade.
Such is the case with the monthly examinations required
under the "lead laws" of the important lead using states.
The Ohio l and Pennsylvania 2 laws apply to the manufacture
of certain of the more poisonous lead salts, such as white
lead, red lead, and arsenate of lead (Paris green), while the later
New Jersey 3 statute covers also the manufacture of pottery,
'Ohio, Laws 1913, p. 819.
2 Pennsylvania, Laws 1913, No. 851.
3 New Jersey, Laws 1914, C. 162.
21
s%a princiRes of labor legislation
tiles, or ponvlain-enamelcd sanitary ware in so far as lead is
used.
In all three of these states the physician who discovers a
case of lead poisoning must report it not only to the state
departments of labor and of health, but also to the employer,
who after five days must not continue the "leaded" employee
in a dangerous process nor return him thereto without a
physician's written permit. 1
Provision for regular re-examination is also found in the
two American compressed-air laws already mentioned. Under
these the examination must be repeated after the first half-
day's work, on returning to work after ten days' absence
from any cause, and after three months' continuous employ-
ment, and workmen who have ceased to be qualified must
be excluded.
In the more dangerous lead trades workers are subject to
regular examination in nearly all European countries. Eng-
land and Germany, moreover, require examinations both in
alkali chrome works, where corrosions of the mucous mem-
brane are common, and in rubber vulcanizing works, where
there is danger from the noxious gas bisulphide of carbon.
France requires similar examinations in compressed-air work.
The frequency of examination varies from once a week in
the British white lead industry, to every six months among
German painters, although once a month, as in the American
lead trades, is the most usual period. In the Netherlands
stone masons are entitled to medical examination at the em-
ployer's expense once a year. In order that the advantages
of cumulative experience may not be lost, a factory record of
the results of medical examinations, especially if they result
in findings of disease, is nearly always required, and must
usually be kept by the examining physician. 2
1 Similar laws in Illinois (Laws 191 1, p. 330). and Missouri (Laws 1913,
p. 402) cover wider ranges of related industries, including zinc smelting
and work with arsenic, brass, mercury, and phosphorus, but do not re-
quire the removal from danger of workmen who show symptoms of the
TPmill" tint diSPfiSGS
2 In Germany this record is called a "control book," and must con-
tain the name of the person keeping it, first and last name, address and
age of each workman, date of his entering and leaving the employment,
date and nature of his illness, date of his recovery, name of the factory
physician, and dates and results of the medical examinations. The em-
SAFETY AND HEALTH 323
The third physical qualification, absence of contagious dis-
ease, is applied occasionally in bakeshops : and in other food
establishments, 2 while the fourth, freedom from physical de-
fect which might interfere with proper performance of duty,
is mentioned in a few states which require an examination
of railroad employees for color blindness or other defective
sight. 3
(b) Technical Qualifications. Far more numerous than the
examinations to test an adult workman's fitness for a given
occupation upon physical, or health, grounds, are those re-
quired in nearly all states for the licensing of men to carry
on certain trades after a test of experience, skill, or general
education. Laws for the examination and registration of
barbers, 4 horseshoers, 5 plumbers, 6 electricians, 7 moving-picture
machine operators, 8 chauffeurs, 9 railroad, 10 streetcar, 11 and
steamboat 12 employees, elevator operators, 13 and even aero-
nauts, 1 ' 1 are designed primarily for the protection of the pub-
lic, and need only be mentioned. More closely related to the
subject are technical examinations for miners and for firemen
and engineers in charge of stationary boilers.
Statutes requiring the examination and registration or
licensing of certain classes of coal mine employees exist in
ployer is responsible for the correctness of the record, and must show it
to the factory or medical inspector on demand. The Austrian health
register goes into even more detail.
I See, for instance, Connecticut, General Statutes 1902, Sec. 2570.
* Maryland, Laws 1914, C. 678, Sec. 1 (e).
3 For example, Ohio, General Code 1910, Sec. 12548.
4 Found in 19 15 in fifteen states.
5 Found in 19 15 in four states and in Hawaii. These laws have been
declared unconstitutional in Illinois, New York, and Washington, as
unduly interfering with a calling not requiring regulation on grounds of
public health and comfort.
6 Found in 19 15 in twenty-one states, the District of Columbia, and
Porto Rico.
7 Found in 1915 in Louisiana, Acts 1908, No. 178.
8 Found in 19 15 in three states.
6 Found in 191 5 in twenty-two states and in the Philippine Islands.
10 Found in 191 5 in seventeen states.
II Found in 1915 in only three states — Louisiana, New York, and
Washington.
12 Found in 191 5 in the United States, eight states, and the Philippine
Islands.
13 Found in 191 5 in Minnesota alone.
M Found in 191 5 in the one state of Connecticut, Laws 191 1, C. 86.
3 2 4 PRINCIPLES OF LABOR LEGISLATION
practically all of the important mining states. 1 Managers,
foremen or bosses, fire bosses, mine-examiners, and hoisting
engineers are the employees for whom licenses are usually
required, but some of the newer laws cover all miners, each of
whom, however, is allowed one unlicensed apprentice. 2 Candi-
dates must present affidavits attesting their good character
and sobriety, must have a specified number of years' experi-
ence, must be residents of the state, and must pass the exami-
nation prescribed by an examining board. The increase of
foreign-born workmen among the miners is reflected by the
growing number of states which require ability to read and
speak English. 3 A fee ranging from $i to $5 is charged for
the examination and license. The examining boards are com-
posed of from three to five men, one of whom is usually a
state mine inspector, the others being miners and mine-
owners or superintendents in equal number.
Finally, in a number of states 4 and in the District of Colum-
bia no one may serve as fireman or engineer in connection with
a stationary boiler who has- not been found qualified by a
state or local examining board. Moral character and tem-
perate habits, one to three years' experience, and a minimum
age limit are specified in a few instances, and the license is
generally revokable for negligence, intoxication, or violation
of law or regulations.
Because they fear loss of employment if found to be suffer-
ing from some disqualifying ailment, workmen have at times
protested against medical examinations conducted by the em-
ployer. Aside from possible abuse of such information, how-
ever, the advantages to be gained by the workman through
exclusion or timely removal from a disease-breeding occupation
would outweigh the hardship due to temporary loss of wages
while awaiting recovery or securing other work. Even the
1 Such statutes existed in 191 5 in the fifteen states of Alabama, Colorado,
Illinois, Indiana, Iowa, Kentucky, Missouri, Montana, Ohio, Oklahoma,
Pennsylvania, Tennessee, Utah, Virginia, and Wyoming.
1 Illinois, Laws 1913, p. 438, Sec. 1.
3 See, for example, Kentucky, Laws 1914, C. 79, Art. XVI, Sec. 1.
4 In 191 5 licenses for stationary firemen and engineers (exclusive of
those in mines) were required in the ten states of Georgia, Maryland,
Massachusetts, Minnesota, Missouri, Montana, Nevada, New Jersey,
Ohio, and Pennsylvania. Many cities also require licenses under city
ordinances.
SAFETY AND HEALTH 325
wage loss, when exclusion is due to illness, can be in large part
taken care of by the extension of workmen's compensation
to embrace occupational diseases and by the institution of
systems of public health insurance. 1 For the physician, also,
the practice of examining large bodies of men at the place of
employment will lead to added insight into the trade causes
of disease, an insight which unfortunately is as yet only
rudimentary. In any compulsory system of medical examin-
ation the physician should be employed by the state.
(2) Prohibition of Substances or Instruments
The most notable example of the application of the method
of prohibition to a dangerous substance is the world-wide
banishing of poisonous phosphorus from the match industry.
Within eleven years after the commercial introduction of the
phosphorus match in 1827 the disease known as "phossy jaw"
or phosphorus necrosis was attracting the attention of govern-
ment investigators. Various efforts to eliminate the disease
by regulation having signally failed, Finland in 1872 forbade
the use of white phosphorus in match factories, and similar
action was taken by Denmark in 1874. In France, where
match-making is a government monopoly, the profits from the
industry were wiped out by sickness and death claims until
a harmless substitute was discovered and the dangerous in-
gredient prohibited in 1897. Other countries followed, and in
1906, on account of the difficulty of eliminating poisonous phos-
phorus in countries with an important export trade, the Inter-
national Association for Labor Legislation secured an inter-
national conference at Berne which resulted in the unique
expedient of an international convention 2 providing for the
absolute prohibition of the manufacture, importation, or sale
of matches made from white phosphorus. This treaty was
signed at once by Denmark, France, Germany, Italy, Luxem-
burg, the Netherlands, and Switzerland, and a few years later
by Great Britain, Spain, and numerous colonies. 3 Canada
1 See "Health Insurance," p. 385.
2 For text of this convention see Bulletin of the International Labor
Office, Vol. I, 1906, pp. 275-276.
3 For complete list see table, Bulletin of the International Labor Office,
Vol. VII, 1912, following p. 503.
326 PRINCIPLES OF LABOR LEGISLATION
and Mexico also, without becoming signatories to the treaty,
have prohibited the poisonous substance in the match industry.
In the United States the question was first given national
prominence in 19 10 by the report of a federal investigation. 1
Two years later, in April, 191 2, Congress placed a prohibitory
tax of 2 cents a hundred on matches containing white phos-
phorus, and prohibited their import or export. 2 The power of
internal revenue taxation which Congress had previously exer-
cised for the benefit of bankers and farmers was thus for
the first time used for protecting the health of wage-earners.
Against only one other industrial substance — lead — has
the drastic method of prohibition been invoked, and in this
case the prohibitory legislation is found only in Europe.
Austria was first to act, forbidding in 1908 the use of lead in
all paints, colors or cement used for interior work, and the
same year the Swiss administrative departments were ordered
to forbid the use of white lead in painting carried on in their
behalf. The most thoroughgoing action in this regard, how-
ever, has been taken by France, which in 1909 declared that
after July 20, 19 14, the use of "white lead, of linseed oil mixed
with lead, and of all specialized products containing white
lead, will be forbidden in all painting, no matter of what
nature, carried on by working painters either on the outside
or on the inside of buildings." 3 Belgium, France, and Ger-
many also forbid the removal of lead paint by any dry rub-
bing or scraping process.
A few prohibitions apply not to substances, but to instru-
ments of work. One of these is contained in the Massachusetts
statute intended to protect textile mill operatives from "the
kiss of death." This law, in order to prevent the transfer
from worker to worker of tuberculosis and other infections,
prohibits the use of any form of shuttle "in the use of which
any part of the shuttle or any thread is put in the mouth or
touched by the lips of the operator." 4 Contagious diseases
among glass-blowers are guarded against in France and Portu-
1 United States Bureau of Labor, Bulletin No. 86, January, 1910,
"Phosphorus Poisoning in the Match Industry," John B. Andrews,
pp. 31-146.
2 United States, Laws 1911-1912, C. 75.
3 United States Bureau of Labor, Bulletin No. 95, July, 1911, p. 180.
4 Massachusetts, Laws 191 1, C. 281.
SAFETY ANl> ulau.. 327
gal by prohibitions against the use by more than one person
of the same blowpipe.
3. Regulation
The method of regulation, in the prevention of occupational
accident and disease, as in other social problems, is based on
the principle of toleration within limits. The majority of the
people may believe that certain dangerous machines or proc-
esses are so necessary a part of our industrial life that their
prohibition is at present undesirable or at least impracticable.
In dealing with industrial accidents and diseases the adoption
of this principle leads in the work-places to the installation of
machine guards, fire-escapes, dust and fume removal systems,
separate wash-rooms and eating-rooms; and for the work-
people to the limitation of working hours. As the latter
point has been considered in the chapter on "Hours of Labor " l
only the regulation of work-places need be treated here.
Furnishing a reasonably safe place in which to work is plain-
ly the duty of the employer, and was so recognized under the
common law and by the employers' liability statutes. Not
all employers, however, are equally watchful and energetic,
even if all were equally alive to their social responsibility in
the matter, and hence has arisen the need of standards,
drafted and enforced by public authority, which will throw
about the work-people the necessary protection. So diversi-
fied are the various branches of industry and the accident and
disease hazards in each that separate codes have grown up
about them. These codes deal in the main with (1) factories
and workshops, (2) mines and tunnels, and (3) transportation.
(j) Factories and Workshops
Modifying to meet its own conditions a mass of legislation
already existing in Great Britain, Massachusetts passed on
May 11, 1877, the first American law requiring factory safe-
1 See p. 200.
3a8 PRINCIPLES OF LABOR LEGISLATION
guards. This pioneer law touched on nearly all of the points
now covered by our most advanced statutes for the prevention
of factory accidents. It provided for the guarding of belting,
shafting, and gearing, prohibited the cleaning of moving ma-
chinery, required elevators and hoist ways to be protected,
and called for sufficient means of egress in case of fire. Prac-
tically every state in the union now has a factory and work-
shop act prescribing minimum conditions of safety.
a. Machine Guards. The point perhaps most frequently
dealt with is safeguarding of machinery. Mechanism for
the transmission of power, like belting, shafting, and gearing,
as well as active parts of machines, such as saws, planers,
mangles, and emery-wheels, must usually be securely guarded,
but if this is not considered possible it is sometimes required
that notice of the danger be conspicuously posted. Set-screws
or other projections must be countersunk beneath the level
of the shaft or otherwise guarded, while shafts and belts, and
floor openings through which they pass, must be cased or
railed off. A statute found only in the great textile state of
Massachusetts requires looms to be provided with guards
which will prevent injury from flying shuttles. 1 It has often
but not uniformly been held by the courts that failure to pro-
vide the required safeguards is negligence per se, 2 and that
the worker does not assume the risk of the employer's negligent
disregard of duty, even though he is aware of it. 3 Many safe-
guards can be applied best and most economically during the
original building of the machine, and Minnesota has pro-
hibited the manufacture or sale of mechanism with danger
points unguarded. 4 The same idea is found in the laws of
some European countries, and a growing number of American
dealers are acting upon it without legislative compulsion. 5
It is not sufficient, however, for a safeguard to be attached
to a machine. If it is to do its work it must be actually used.
1 Massachusetts, Laws 1909, C. 514, Sec. 101.
2 Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899 (1905).
3 Evansville Hoop & Stave Co. v. Bailey, 43 Ind. App. 153, 84 N. E.
549 (1908).
* Minnesota, Laws 1913, C. 316, Sec. 5.
6 John R. Commons, "How the Wisconsin Industrial Commission
Works," American Labor Legislation Review, February, 1913, p. 13;
Labor and Administration, 1913, Ch. XXXI.
SAFETY AND HEALTH 329
A number of states have therefore passed provisions forbid-
ding any person to move, displace, or destroy any safety de-
vice except under rules established by the employer, and some
specify immediate repairs as the only cause for which a machine
guard may be removed during the active operation of the
machine. A related clause forbids employees to operate or
tamper with machines with which they are not familiar or
which are not connected with their regular duties.
In case of accident it is important that the operative be
able to stop the machine at once. It is commonly required,
therefore, that shafting be fitted with tight and loose pulleys,
and that belt-shifters or poles be supplied for shifting the
belt quickly and safely from one to the other. Some states
require friction clutches for stopping machinery, and in ad-
dition to all these means of safety Illinois, among other states,
requires speaking-tubes, electric bells, electric colored lights
or other means of communication between the workroom
and the engine-room. Other regulations governing moving
machinery forbid cleaning or repairing it while in motion,
and overcrowding. Closely related to the foregoing provi-
sions are those dealing with covers or other safeguards on such
stationary equipment as vats and pans.
Among other provisions against accident are frequent re-
quirements that stairs must be properly screened at sides and
bottom, must have rubber treads if thought necessary by the
commissioner of labor, and must be furnished with sub-
stantial hand-rails. Stair openings on each floor must be
closed, as well as entrances to elevator shafts. Trap-doors,
fences, gates, or other safeguards may be required for hoist-
ways, hatchways, and well-holes. It is often required that
elevators be provided with automatic catches to prevent fall-
ing. In Wisconsin the industrial commission had, in 1915,
issued no fewer than fifty-four separate orders all looking to
the safe construction and operation of passenger and freight
elevators. 1
Protection against explosions of stationary boilers is best
exemplified by the methods of the Massachusetts Board of
Boiler Rules. This board, one of the earliest forerunners of
1 United States Bureau of Labor Statistics, Bulletin No. 148, 1914,
"Labor Laws of the United States," pp. 2313-2320.
3 3 o PRINCIPLES OP LABOR LEGISLATION
the industrial commission plan of drafting and enforcing
safety measures, was established in 1907. l It is composed of
five members: the chief inspector of the boiler inspection
department, who serves as chairman; one representative of
the boiler manufacturing interests; one representative of the
boiler-using interests; one representative of the boiler-insur-
ance interests; and one operating engineer. The duties of the
board include the formulation of rules for the construction,
installation, operation, and inspection of steam-boilers. For
this purpose public hearings and private conferences are held,
and the rules as formulated are submitted to the governor
for approval. When approved they are published and have
the full force of law. The success of this system in reducing
the number of boiler explosions has led to its adoption in
many states and cities, even as far away as Manila.
b. Protection against Fire. Though the prevention of fire is
of far more importance than providing means of escape, legal
provisions covering this point are of comparatively late devel-
opment. It was not until 191 1, for instance, that New Jersey
ordered cans to be provided for combustible waste, and it was
not until 191 2 that New York required gas-jets to be inclosed
in globes, wire cages, or other protection, and forbade smoking
in factories. Meanwhile, disastrous factory fires in both
states, due in part to lack of these safeguards, had attracted
the attention of the country, and resulted in much legislation.
In some states floors must now be swept daily and the sweep-
ings removed, and the quantity of explosives that may be
kept in a building is carefully regulated. Sometimes fac-
tories must be equipped with an automatic gas-cock or ap-
pliance by which in case of fire the supply of gas may be shut
off without entering the building.
Required means of extinguishing fires include pails of water
or sand, a standpipe and hose of specified dimensions, fire
extinguishers or automatic sprinkler systems. The major
part of fire laws, however, is devoted to provisions for prompt
escape. In the early days of this legislation, since no one had
taken the time to study out what would constitute effective
egress, lawmakers contented themselves in most cases with
1 Massachusetts, Laws 1907, C. 465, Sees. 24-28,
SAFETY AND HEALTH 331
ordering "suitable and sufficient" exits and escapes. Now
the most elaborate details as to material and construction
are found. Balcony escapes, fire towers, or chutes or to-
boggans may be used in different states. Doors must be con-
structed to open out or slide, and must not be fastened in any
way during working hours. Sometimes the number of em-
ployees to the floor is regulated, periodical fire drills are called
for, and gongs, and red lights or other "Exit" signs, must be
installed. A growing number of states require plans for fire
egress in new buildings to be passed upon by labor or building
department officials.
c. Lighting, Heating, and Ventilation. Although proper
lighting affects both the health and comfort of the work-
man and his liability to accident, less attention has been paid
to this phase of industrial safety and hygiene than to al-
most any other point of similar importance. Comparatively
few states have enacted any legislation on the subject, and
most of those limit themselves to meaningless and unenforce-
able provisions such as that factories must be "well and
sufficiently lighted." l
Artificial lighting in factories is notoriously bad because of
poor quality, insufficient quantity, haphazard distribution
resulting in spots of excessive intensity separated by danger-
ous shadows, and glare caused by lack of shades or diffusing
mediums. Many eye specialists assert that from 80 to 90
per cent, of headaches are due to eye strain, and in the pro-
duction of eye strain improper lighting is an important factor.
The effects of poor illumination are particularly severe upon
women workers, because of their more delicate nervous or-
ganization. Yet at the present stage of the art all harmful
light conditions in factories could be done away with easily
and cheaply. "It can easily be shown," declares one ex-
pert, "that a workman earning only $2 per day of ten hours
would have to lose but three minutes of his time to make a
1 Connecticut (General Statutes 1902, Sec. 4518) adds that painted,
stained or corrugated glass in factory windows must be removed, " where
the same is injurious to the eyes . . . upon the order of the factory in-
spector." In other words, Connecticut permits any factory -owner to
block out light by any one of the three methods named until ordered to
desist by the inspector, who must, however, first prove that the dark-
ness is injurious.
332 PRINCIPLES OF LABOR LEGISLATION
loss to the manufacturer equal to the cost of all the artificial
light he could possibly require during the entire day." '
Indications of what a really scientific law on factory light-
ing might be are found in the Holland statute. There women
and children are forbidden to work in establishments where
artificial illumination is ordinarily required between 9 a.m.
and 3 p.m. For processes exceptionally trying to the eyes,
such as embroidering, typesetting, and instrument-making,
a minimum light of one and one-half foot-candles is specified,
while for less exacting occupations the minimum is one foot-
candle.
A few states authorize the inspector to require changes in
heating apparatus found dangerous to health, but no stand-
ards of proper or permissible temperature are set up. Massa-
chusetts has established for certain textile processes a grad-
uated standard of humidity permissible at certain tempera-
tures, 2 but only there and in Illinois is the subject of humidity
mentioned. Yet apart from the presence of dusts and fumes,
the only atmospheric condition which has been thoroughly
proven harmful is the combination of excessive heat with ex-
cessive humidity.
Recognition of the importance of ventilation is more wide-
spread. Industrial dust and fume, whether metallic, chemical,
vegetable, or animal in origin, and whether poisonous or not,
are among the most insidious and serious of modern health
hazards, and the illness and death of wage-earners vary almost
in direct proportion to the contamination of the air supply.
Hence about half the states have enacted provisions that fac-
tories shall be ventilated. The wording, however, is in most
cases so vague that it means but little. Among the first laws
which attempted to establish even an elementary standard
of ventilation was the Illinois statute of 1909. Under this
act the amount of fresh air to be supplied depends upon the
kind of illumination used, the cubic air space furnished for
each employee, and the window area of workrooms. 3 Pro-
visions for from 250 to 600 cubic feet of air space for every
1 F. Leavenworth Elliott, "Factory Lighting," American Labor Legis-
lation Review, June, 191 1, p. 116.
2 Massachusetts, Laws 1910, C. 543.
3 Illinois, Laws 1909, p. 202.
SAFETY AND HEALTH 333
employee are now found in a few state laws, but more impor-
tant are the newer regulations providing for the retention and
removal of dangerous dust and fume at the point of produc-
tion by specially constructed hoods, hoppers, exhausts, and
fans. Regulations of this type have been established either
as statute laws or by administrative order principally in the
large lead-using states, such as Illinois, Missouri, New Jersey,
New York, Ohio, and Pennsylvania. 1 As additional precau-
tions, most of these laws require wet-cleaning methods, the
use of respirators, and separate lunch-rooms, and forbid bring-
ing any food or drink into the workrooms. Similar provisions
in the laws of other countries have helped reduce the risk of
lead poisoning far beneath previous American expectations.
For instance, in an American white and red-lead factory,
employing eighty-five men under unregulated conditions, the
doctors' records for six months showed thirty-five men "lead-
ed," while an English plant of the same nature, with ninety
employees, but under strict supervision, reported no cases
for five years. 2
In at least two cases ventilation statutes have been de-
clared unconstitutional by state courts, but both times upon
issues not related to the purpose or benefits of the laws, and
in both cases they were soon replaced by amended acts. In
1 90 1 the California law of 1889 was challenged on the ground
that it made the commissioner of labor the judge not only of
the need for means of dust removal, but also of the character
of the appliance to be installed. The supreme court upheld
the objection, 3 but the invalid statute was immediately re-
placed by a new law, giving the commissioner power to order
only proper appliances instead of some particular contrivance.
In Illinois a 19 11 statute forbade the use of emery or similar
wheels "in any basement so called, or in any room lying
wholly or partly beneath the surface of the ground." This
provision the Supreme Court of Illinois held to be an "un-
warranted discrimination," since it condemned all rooms of
the class named without reference to their adequate ventila-
1 For a comprehensive act of this type see New Jersey, Laws 19 14,
C. 162.
2 American Labor Legislation Review, December, 1914, p. 539.
?Schaezlein v, Cabaniss, 135 Cal. 466, 67 Pac. 755 (1901).
334 PRINCIPLES OF LABOR LEGISLATION
tion or lighting. 1 The legislature of 10-15, however, recnacted
substantially the same provision, with a change of wording
designed to overcome the objection.
d. Seats, Toilets, mid Dressing-Rooms. In safety and health
legislation, as well as in legislation on hours and wages, a dis-
tinct tendency is noticeable to single out women for special
protection, on the grounds of their greater physical weakness
and their comparative helplessness as wage bargainers. The
possibilities of injury from unsafe or insanitary conditions
are more apparent and it is easier to make a conclusive case
in their behalf. Not infrequently health and safety laws ap-
plied only to women when first passed, but were later extended
to protect all workers. For instance, in Colorado a law which
originally required hand-rails on stairways only in buildings
where women were employed was extended in 19 11 to cover
all work-places. 2 Or in some cases a law affording some pro-
tection to all workers may be of wider scope in its application
to women. Thus in Missouri mechanical means for dust
removal must be installed in all factories carrying on dusty
processes where five or more "persons" are employed, and
also in dusty workshops if the five or more employees are
"children, young persons, or women." 3
Particularly striking is the special protection of women
manifested in the laws on seats, toilets, and dressing-rooms.
In fact, legislation with regard to seats exists only for women.
As far back as the end of the 'seventies the dangers of con-
stant standing for salesgirls were recognized, and it was urged
that they be furnished seats and allowed to use them. A law
containing such provisions was passed by New York as early
as 1 88 1. Almost every state now requires suitable seats for
females in at least mercantile establishments. 4 The majority
of laws extend this requirement to manufacturing or to manu-
facturing and mechanical establishments, and several states
cover practically all employments. 5 The proportion of seats
1 People v. Schenck, 257 111. 384, 100 N. E. 994 (1913).
2 Colorado, Laws 1911, C. 132.
3 Missouri, Revised Statutes 1909, Sees. 7858-7859.
4 By the end of 191 5 only Idaho, Mississippi, Nevada, and New Mexico
were without such legislation.
5 Arizona, Arkansas, California, Kentucky, Louisiana, Missouri,
Montana, Ohio, Pennsylvania, Texas, Washington, West Virginia.
SAFETY AND HEALTH 335
to workers is sometimes fixed and in many cases the law-
specifics that employers must permit the use of the seats
when work will not thereby be interfered with. 1 These laws
are of little real importance in protecting health, however,
since it is practically impossible to see that employers and fore-
men allow the seats to be used even when provided. 2
Nearly all the states likewise require sanitary and separate
toilets for women workers in addition to those for men, and
about a third make provision for women's dresr.ing-rooms.
These provisions form a very important factor in maintaining
the health and morals of women workers in any establish-
ment; the character of the employment frequently makes
necessary a change from street clothes to work clothes, and
it is also highly desirable that a suitable place be provided
where women and girls may eat lunch, secure a little rest at
the noon period, and retire in case of illness.
For the lead industries, especially, careful wash-room
standards have been worked out, specifying hot and cold
water, a definite ratio of basins or of trough length to the
number of employees, soap, nail-brushes, and towels. In the
best lead laws, also, such as those of New Jersey, Ohio, and
Pennsylvania, hot and cold shower-baths are required, to be
used at least twice a week on the employer's time, and to in-
sure the use of the baths a bath register must be kept. A
few states require a sufficient supply of pure drinking-water
to be kept in a readily accessible place. Sometimes, es-
pecially in connection with foundries and casting-rooms, the
lead trades and compressed-air work, the dressing-rooms must
be properly heated and ventilated, and often supplied with
lockers and with facilities for drying clothes.
e. Protection from Infectious Disease. Modern industrial
processes subject large numbers of employees not only to
dangerous dusts and vapors, but also to a variety of disease-
breeding organisms, carried either by fellow-workmen or by
the materials worked upon. As a protection against such in-
fection a number of legal regulations have been adopted.
1 See Kentucky, Laws 1912, C. 77, Sec. 3, for both such provisions.
2 A law of this class which plainly defeats its own intent is the Dela-
ware statute of 1913 (C. 176) which provides that no girl under eighteen
may work in any employment which "compels her to remain standing
constantly, unless seats are provided."
336 PRINCIPLES OF LABOR LEGISLATION
Several states, for example, forbid sleeping in workrooms,
some require cuspidors to be furnished and to be cleaned and
disinfected daily. Massachusetts in 19 13 required that cloths
or other material provided for cleaning printing-presses must
1 >e sanitary, 1 and a California law of the same year laid down
the rule that all wiping-rags must be sterilized. 2 In every
industrial state hundreds of cases of infection or "blood-poison-
ing" occur yearly, and about six out of every seven of these
are the result of small scratches. The requirement now found
in some states for a first-aid kit in factories, workshops, and
mercantile establishments should assist in reducing this need-
less danger.
Prominent among the infectious diseases of industry is
anthrax, which arises in the handling of infected hides or hair.
Austria, Belgium, France, Germany, Great Britain, and Italy
have all turned their attention to eradicating this malignant
malady, but the United States remains inactive. The com-
monest legal safeguards are provisions for thorough washing,
for overalls, neck-coverings, and gloves, and for treating in-
stantly scratches and slight wounds which offer an entrance
to the bacillus. Disinfection of bristles and bales of hair from
suspected localities before any work is done on them is in-
sisted on in some countries.
/. Tenement House Manufacture. Difficult as are the prob-
lems connected with the regulation of labor conditions in
factories, they are not more troublesome than those en-
countered in the regulation of tenement workshops, where the
work is done by the family group in its customary living-
quarters.
Tenement house manufacture is often looked upon as a
pleasant and easy method whereby the mothers of the poor
may add to the family income in their leisure moments. The
fact is that such work has usually proven a menace to health,
to wage standards, and to the existing labor laws. Conges-
tion, insanitary quarters, lack of restriction on child labor, ab-
solutely unregulated hours, and miserable pay combine to
create a condition which endangers the lives not only of the
workers, but of the purchasers of their product. Often tene-
1 Massachusetts, Laws 1913, C. 472.
2 California, Laws 1913, C. 81.
SAFETY AND HEALTH 337
ment dwellers have been found at work on garments and arti-
cles of food while suffering from contagious diseases. 1
As early as 1885 New York sought to end the "sweating"
or tenement workshop system by prohibiting the manu-
facture of cigars and other tobacco products in tenement
houses in cities of the first class. The law was declared un-
constitutional, the court holding it an abuse of the police
power and an infringement of the cigar-maker's liberties in
that it sought to force him "from his home and its hallowed
associations and beneficent influences, to ply his trade else-
where." 2 Had this pioneer statute been sustained, the entire
problem of tenement house labor might have been disposed of
almost at its beginning.
The setback in the Jacobs case radically changed the method
of attack on the sweating system. Prohibition having been
declared invalid, for three decades nearly all effort was di-
rected toward regulation and the imposing of minor restric-
tions through a licensing system. In 1891 Massachusetts
passed "An act to prevent the manufacture and sale of cloth-
ing made in unhealthy places," and the following year New
York inserted in its newly codified labor law a provision for
the licensing and regulation of tenement workshops. Similar
provisions now exist in about a dozen states. 3
These statutes ordinarily require that home work on gar-
ments, foodstuffs, and tobacco must be done only in rooms
licensed by the factory inspection department. Only mem-
bers of the immediate family, which is carefully defined, may
be employed, and licenses may be issued only if fire-escape,
toilet, and all other health and safety laws have been com-
plied with. In case of disease, work must cease until the
board of health has declared the illness at an end and has
fumigated the apartment. A register must be kept of names
and addresses of persons taking out work, and goods given
1 See Second Report of the New York Slate Factory Investigating Com-
mission, "Manufacturing in Tenements," Vol. I, pp. 90-123; Report
on Condition of Woman and Child Wage-Earners in tlie United Slates,
Vol. II, "Men's Ready-Made Clothing."
2 In re Jacobs, 98 N. Y. 98 (1885).
3 In 1915: Connecticut, Illinois, Indiana, Maryland, Massachusetts,
Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, and
Wisconsin.
22
338 PRINCIPLES OF LABOR LEGISLATION
out must be labeled with the name and address of the manu-
facturer. Licenses arc revokable for failure to comply with
the law, or, in some of the newer acts, "if the health of the
community or of the persons employed thereunder requires it." '
The results of attempted regulation under even the best
of these laws have, however, never been satisfactory. On
February i, 191 5, for instance, there were almost 13,000
licensed tenements in New York City alone, and over 500 in
the rest of the state. As the working day of a factory in-
spector is eight hours long, it would require three inspectors
to each tenement, or an army of over 40,000 in all, to set a
continuous day and night watch upon these dwellings to see
that no violations of the law were going on ; and this estimate
takes no account of the fact that home work is covertly car-
ried on in unlicensed as well as in licensed houses. "After
twenty-one years," declare those who have long been sym-
pathetic observers of this legislation, "the difficulties of in-
spection have been proved insuperable." 2
In 1 9 13, therefore, after the able investigations of the state
factory investigating commission, New York once more re-
turned to the prohibitory method in dealing with this ques-
tion, and forbade work in tenement homes on food products,
dolls or dolls' clothing, and children's or infants' wearing-ap-
parel. 3 The prohibition covered both work done directly for
a factory and indirectly through a contractor, and was applied
to these articles first because of their close relation to public
health, especially the health of children. There is little doubt
that in the present state of public knowledge these restrictions
will be followed by others.
(2) Mines and Tunnels
Underground work of any sort obviously subjects the work-
man to greater dangers, both as to health and to safety, than
1 See, for instance, Maryland, Laws 1914, C. 779, Sec. 248.
2 Constitutional Amendments Relating to Labor Legislation and Brief
in Their Defense, submitted to the Constitutional Convention of New
York State, June 9, 191 5, by a committee organized by the American
Association for Labor Legislation, p. 51.
3 New York, Laws 191 3, C. 260.
SAFETY AND HEALTH 339
do most of the manufacturing industries. Distance beneath
the surface, artificial light, poisonous gases, explosive dusts,
dampness, intestinal parasites, extreme heat, and in some
kinds of work abnormal air pressure amounting often to sev-
eral atmospheres, all contribute to render underground occu-
pations extraordinarily hazardous. It is for this reason that
the validity of hour legislation for adult men has become
thoroughly established in the mining industry, although in
many other lines of work such restrictions are still subject
to attack on the score of unconstitutionality.
a. Mining. Under these circumstances it is not surprising
that mining furnishes a higher fatal accident rate than any
of the other main groups of industry. Metal-mining has a
higher death-rate than coal-mining, and employment in an-
thracite coal mines is more dangerous than in bituminous
mines, since the former are deeper and more subject to ac-
cumulations of noxious and explosive gases.
Coal-mining appears to be more dangerous in America than
in any other country. Standing second with regard to num-
bers employed, the United States leads all other important
coal-producing countries both in total number and in rate
of fatal accidents. During the ten years ending with 19 10
the average fatal accident-rate per 1,000 employed in coal-
mining was 3.74 for the United States, 2.92 for Japan, 2.1 1 for
Germany, 1.69 for France, 1.36 for Great Britain, 1.04 for
Austria, and 1 .02 for Belgium. 1
Health dangers and occupational diseases among miners
have been given much less legislative attention than has the
subject of accidents. Accidents are usually more spectacular,
their causes are more certain and more easily located, and,
moreover, an employer may be held in damages for accidental
injuries to mine workmen, while only two American states
have provided compensation for occupational diseases. 2
Among the more important legal provisions for safeguarding
the life and health of miners are the requirements for detailed
1 United States Bureau of Mines, Bulletin No. 6q, "Coal-Mine Acci-
dents in the United States and Foreign Countries," Frederick W. Horton,
p. 87.
2 For a further discussion of this subject see Chapter VIII, "Social
Insurance."
340 PRINCIPLES OF LABOR LEGISLATION
maps of mines showing all workings and open at all times
to mine inspectors, for a sufficient number of escapement
shafts, for proper ventilation and a supply of pure air, and
frequently for a special employee to inspect the mine daily
for explosive or poisonous dusts or gases. Precautions against
falling rock or coal must also be taken by carefully timbering
dangerous places as far as known. Rules are laid down in
regard to proper methods of drilling and blasting, and hoist-
ing-gears and cages for carrying men in and out of the mine
must conform to specific requirements. Safety-lamps, shelter-
holes, fencing of machinery, telephone connections, restrictions
upon the storing of explosives and upon the quality of il-
luminating oils — these and many more safeguards are fre-
quently required and carefully defined by law. In the newer
laws provision is usually made for a rather limited first-aid
equipment.
The enforcement of these provisions in the various states
is usually entrusted to a special body of mine inspectors, who
either form a separate bureau of mine inspection or are at-
tached to the state department of industrial inspection. Mine
inspection protects the property of the employer as well as
the lives of the employees, and many states require of in-
spectors a certain number of years' experience and also civil-
service examinations conducted by an examining board fre-
quently composed of representatives of employers and em-
ployees. The authority of the inspectors is sometimes far
reaching, extending even to the power of stopping work if the
mine regulations have not been obeyed. The best results in
the enforcement of mine safety and health legislation have
been achieved in states where, as in Illinois, joint conferences
of miners and mine-owners have been brought together for
the administration as well as the drafting of the laws.
A significant step, which may in time lead to national
regulation of mining conditions, was the establishment by Con-
gress in 1 910 of the federal Bureau of Mines with the function,
among others, of conducting "scientific and technologic in-
vestigations concerning mining," with a view to improving
health conditions and increasing safety and efficiency. The
bureau has no authority to do anything except conduct in-
vestigations, publish reports, and furnish advice, all enforce*
SAFETY AND HEALTH 341
ment of mine laws being left in the control of the states, but
within its limited field it has already performed valuable ser-
vices. Series of bulletins and technical papers distributed free
to miners present the results of the latest scientific inquiries
into the causes and prevention of mine explosions and other
accidents, and some half-dozen mine rescue stations have
been established, one in each of the more important coal fields
of the country. Connected with each station is a fully equipped
mine rescue car, in charge of a mining engineer and two es-
pecially trained miners, which tours the district, giving prac-
tical instruction in safety work, and is dispatched at once to
the scene of any disaster. Previous to creating this bureau,
Congress had enacted a code for the regulation of mining con-
ditions in the federal territories, which is still in force in
Alaska and in the insular possessions. 1
b. Work in Compressed Air. An industrial hazard brought
into prominence by the increasing construction of tunnels,
subways, bridges, and skyscrapers is compressed-air illness,
or the "bends." An investigator for the Illinois Commission
on Occupational Diseases secured interviews with 161 men
who had sustained attacks of the malady, and the medical
director at the construction of the Pennsylvania-East River
tunnels in New York in 1909 reported 3,692 cases, of which
twenty were fatal.
Thus far only two states, New York and New Jersey, have
attempted to control the disease by legislation, although in
other states similar steps have been taken through the method
of administrative orders. 2 The customary provisions include
physical examinations of all applicants for work and of all
employees at stated intervals, a sliding scale of working hours,
decreasing as the pressure increases, 3 and a period of gradual
"decompression," ranging from one minute for emergence
from a pressure of ten pounds above normal to twenty-five
minutes for emergence from a pressure of fifty pounds above
normal. Work under more than fifty pounds' pressure is
forbidden. The employer must maintain dressing-rooms with
lockers, hot and cold shower-baths, and provision for drying
1 United States, Laws 1 890-1 891, C. 564.
*See p. 351.
' See " Hours of Labor, Men," p. 236.
342 PRINCIPLES OF LABOR LEGISLATION
clothes. Medical attendants arc also required, as well as a
hospital lock for the recompression and treatment of sufferers
from the disease.
(j) Transportation
Protective legislation regulating working conditions in
transportation relates mainly to safety. The development
of aerial transportation had in 191 5 led to no labor laws ex-
cept the Connecticut provision that aeronauts be licensed l
and a Pennsylvania clause that they be over eighteen years of
age, 2 but in carriage by land and water a large body of statutes
has gradually grown up. These measures may either be de-
signed for the protection of employees, as in the case of auto-
matic couplers on railroads, and the provision for emergency
exits for seamen, or they may be intended primarily for the
protection of the traveling public, as in the case of boiler
inspection in both kinds of transportation. A few measures
such as the full-crew laws on railroads and in navigation have
been urged as a direct protection for both laborers and travelers.
The majority of transportation employees are engaged in
traffic which is interstate or international in character. The
more important legislation affecting this class of workmen has
therefore been federal rather than state. Railway employees
have been more often brought under state laws than have
seamen, but when any question has arisen over the respective
jurisdiction of state or federal authority the latter has prac-
tically always been given precedence by the courts.
a. Navigation. While slavery and serfdom have been
abolished for the majority of workmen in most civilized
countries, until 191 5 the seaman in America was kept in
a position of semi-slavery through employment under a con-
tract enforceable by imprisonment. This position of invol-
untary servitude gave him but little effective voice in regulat-
ing the conditions under which he worked. In the early days
of sea travel a ship-owner's interest impelled him to secure
an intelligent and competent crew which could protect his
cargo. But with the substitution of steam for sails, the spread
of lighthouses and channel markings, and the growth of
x See " Technical Qualifications," p. 323.
2 In the child labor code, Pennsylvania, Laws 1915, No. 177, Sec. 5-
SAFETY AND HEALTH 343
marine insurance and limited liability legislation, the quality
of seamanship has greatly declined. In the majority of serious
sea disasters in recent years the lack of both skill and numbers
in the working force has been officially reported. There has
apparently been a steady increase in the size of the load carried
without a corresponding increase in the number and skill of
those employed to handle it. The "seaman" has been dis-
placed by the "deck-hand," the American by the northern
European, and the latter by the immigrant of the southern
races.
In a few states legislation looking toward general marine
safety has been enacted, such as provisions for boiler inspec-
tion and signal lights, but most of the legislation affecting
seaman has been federal. As early as 1798 Congress recog-
nized the need of special protection for this class of work-
men, many of whom are single and homeless. In that year
the federal government established a marine-hospital fund
to maintain hospitals for the care of disabled seamen of ships
belonging to the United States. During the latter half of
the nineteenth century Congress continued its protective
policy toward seamen by legislation, regulating, among other
matters, the conditions of living and working on shipboard,
the size and experience of crews, and the construction and in-
spection of vessels. But despite these regulations the position
of seamen was held to be most unsatisfactory, and it was not
until the passage of the federal seamen's act of 19 15 that the
grosser injustices were removed. 1
While the outstanding features of this act related rather to
the personal freedom of seamen, 2 additional provisions were
made for the health and comfort of employees through the
requirement of proper washing-places and sleeping-rooms,
hospital space, fumigation, heating, lighting, ventilation, and
drainage.
It has been repeatedly pointed out that in case of accidents
at sea, such as fires or boiler explosions, a ship cannot sum-
mon assistance as a manufacturing establishment, for in-
stance, is able to do on land, but must rely upon its own crew
and the chance aid of near-by vessels. For this reason the
1 United States, Laws 191 4-1 9 15, C. 153.
2 See "Contract Labor," pp. 44, 45-
344 PRINCIPLES OF LABOR LEGISLATION
only way really to safeguard human life at sea is to provide
an equipment and crew adequate to meet any reasonable
emergency. The seamen's act of 19 15, therefore, provided
for a substantial increase in the size of the crews employed,
for a certain percentage of able seamen, for "certified life-
boat men," and for properly constructed life-boats, the num-
ber to be fixed according to the size and character of the ship
and its cargo.
b. Railroads and Streetcars. In the early days of railroad-
ing, reports of deaths and mutilations, particularly in connec-
tion with the coupling of cars, were repeatedly made public,
and the need of protective legislation became apparent, es-
pecially as the length and complexity of lines developed and
as speed increased. At the middle of the nineteenth century
only about 9,000 miles of railroad existed. In 1869 a through
route to California was opened, and by 1880 the total mileage
had increased to 86,000. Between 1880 and 1890 more miles
of new road were built than during the entire period previous
to 1875, and in the early 'eighties a few states enacted protec-
tive legislation. It soon became apparent, however, that state
legislation alone would result in long delays and in a great
lack of uniformity. As the occurrence of serious accidents
continued and as interstate commerce developed, the need
of federal regulation became more apparent.
Many experiments were carried on in search of proper
safety devices, and as early as 1868 a successful application
of air-brakes was made. But the most serious danger to
employees resulted from their being required to go between
cars in order to couple or uncouple them. It was not until 1887
that a satisfactory automatic coupler was devised for general
use. In order to compel the general adoption of the standard
coupler the necessity of federal legislation was recognized.
Although the Interstate Commerce Commission, created
by the federal act of February 4, 1887, had power to investi-
gate and to regulate rates, the act made no mention of safety
appliances or the protection of employees. The absence of
authority over these matters was remedied by the federal
act of March 2, 1893, and several subsequent acts 1 made
1 United States, Laws 1892-1893, C. 196; Laws 1902-1903, C. 976;
Laws 1906-1907, C. 225.
SAFETY AND HEALTH 345
it obligatory upon all roads engaged in interstate traffic to
equip all cars and locomotives with approved automatic
couplers, and to provide other safeguards such as power-
brakes and grab-irons. 1 In this particular, American labor
legislation was far in advance of European. The results of the
coupler legislation are particularly striking. In 1890, when
only about 10 per cent, of railway cars were equipped with
automatic couplers, accidents in the coupling of cars amounted
to nearly half of all casualties to trainmen. By 19 12, when
over 99 per cent, of all cars were so equipped, the proportion
of accidents from this cause was reduced to about 8 per cent.
The majority of early regulations imposed by the federal
government, however, left open to the various roads the de-
termination of the kind and character of devices to be in-
stalled. The absence of a central standardizing authority
resulted in lack of uniformity, and at times in the adoption
of inadequate or ineffective devices. In 19 10, therefore, an
act of Congress, in addition to making new safety provisions,
gave to the Interstate Commerce Commission power, after
proper hearings, to "designate the number, dimensions, loca-
tion, and manner of application of the appliances, " and there-
after such determinations were to remain as "the standards
of equipment," and any failure to comply with any require-
ment of the commission was subject to a "like penalty as
failure to comply with any requirement of this act." At
the same session of Congress the commission was given au-
thority to investigate all collisions, derailments, or other
accidents, to subpoena witnesses, administer oaths, take testi-
mony, and to require the production of all papers, books, and
other evidence. It might also make a public report " together
with such recommendations as it deems proper." One year
later $25,000 was appropriated for the use of the commission
in making tests and establishing standards 3 and a maximum
1 For the further protection of employees and as a stimulus to the
roads to use every possible safety precaution Congress also provided
that no employee injured on a train not equipped according to law could
be held to have assumed the risk of his employment even though he
knew of the violations. This provision has been upheld in the North
Carolina case of Greenlee v. Southern R. Co., 122 N. C. 977, 30 S. E.
115 (1898).
2 United States, Laws 1909-1910, C. 160.
3 United States, Laws 1910-1911, C. 285.
346 PRINCIPLES OF LABOR LEGISLATION
of $300,000 a year was appropriated to provide for proper
boiler inspection by a staff of fifty-three inspectors working
in close cooperation with the commission. 1
Beginning with the great increase in railroad mileage in the
early 'eighties, state legislation grew in volume and developed
along two lines, one mainly for the protection of employees,
and the other mainly for the protection of the traveling
public. Measures for the protection of travelers are of two
kinds. The first relates to mechanical devices for the pre-
vention of accidents, such as automatic bell-ringers, brakes,
headlights, and signal lights, while the second relates to the
qualifications and training of employees.
Among the measures which have been passed primarily
for the protection of employees are found such requirements
as those for the installation of grab-irons, ladders, running-
boards, storm windows in engines, the maintenance of a
proper temperature in mail or baggage cars, the regulation of
the height of bridges or other overhead structures, the
maintenance of a proper clearance around tracks, particularly
in railroad yards, the blocking of frogs and switches, and, for
employees engaged in repairing tracks, the erection of sheds
to protect them from inclement weather. For the safety and
convenience of employees who are frequently required to
travel long distances on freight or stock trains caboose-cars
must be provided, which must be constructed according to
certain rules of size, strength, safety, and comfort.
Employees on street or interurban railways are also fre-
quently protected through state legislation or municipal
ordinance. Such measures relate usually to inclosed vesti-
bules during the winter months, seats for motormen, and
proper automatic brakes, and occasionally to equipment for
the sanding of rails, to the examination of employees, and to
minimum age limits.
During the past few years the sharpest debate in matters
of protective railway legislation has centered about the full-
crew laws, which are held to protect both the public and the
employee. More than twenty states have enacted such
legislation. These acts usually apply to both passenger and
1 United States, Laws 1910-1911, C. 103.
SAFETY AND HEALTH 347
freight service on roads of given lengths, and fix the number
of employees — principally of brakemen— in proportion to the
number and kind of cars in the train. Full-crew laws have
been initiated by the railway men's organizations and have
been vigorously opposed by the railroad owners, who have
contended that as a rule larger crews are unnecessary because
of the reduction in the amount of work required of employees
since the introduction of safety devices, the formation of
special switching crews, and the generally improved methods
of handling trains. They point also to the increase in operat-
ing cost, resulting in reduced dividends and in curtailment of
improvements. 1
On the other hand, the trainmen point to the large number
of both fatal and non-fatal accidents, and to the increasing
strain upon railway employees due to the increase in the
weight of trains, in the number of tons per train, and in the
number of cars per man. They hold that by these increases
the railroads have made their greatest economies. The
trainmen maintain, therefore, that full-crew legislation serves
practically the same purpose as legislation restricting hours of
labor, in that both reduce the physical strain and thereby
the frequency of accidents.
This is the view which was adopted by the Supreme Court
of Pennsylvania when in 1913 2 it upheld the full-crew law
of that state, enacted in 191 1, 3 as having a real and sub-
stantial relation to the safety of passengers and employees
on railroad trains. The company presented evidence as to
the cost of the legislation, but the court held that "Uncom-
pensated obedience to a regulation enacted for the public wel-
fare or safety under the police power of the state is not taking
property without due compensation, and any injury sustained
in obeying such a regulation is but damnum absque injuria." 4
1 For a full discussion of this subject see bulletin Consecutive No. 73
of the Bureau of Railway Economics, Washington, D. C, "Arguments
for and against Train-Crew Legislation," 191 5.
2 Pennsylvania R. Co. v. Ewing el al., 241 Pa. 581, 88 Atl. 775 (1913)-
A similar decision was rendered in Chicago, Rock Island and Pacific
R. Co. v. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275 (191 1), upholding the
1907 law in that state.
3 Pennsylvania, Laws 191 1, No. 811.
4 In 1914 the railroad companies succeeded in repealing by a referendum
vote the Missouri full-crew law of 1913; and in Pennsylvania they in-
348 PRINCIPLES OF LABOR LEGISLATION
During the year 191 5 bills were introduced in a number
of states fixing the maximum length of trains. This legislation
is also strongly opposed by the railroads, on the ground that
they have expended large sums of money for improved road-
beds, yard and switching facilities, and for increased tractive
power of locomotives, which will be rendered useless if they
are not allowed to increase the length and weight of their
trains.
State provisions for railroad safety have frequently been
contested on the ground that regulations which apply to inter-
state commerce are a subject for federal legislation. But the
courts have uniformly held that where Congress has not legis-
lated upon these questions the states were entirely within their
rights. An interstate road, therefore, might either make such
changes as were necessary, as it passed from one common-
wealth to another, to meet the minimum requirements of each
commonwealth, or it might comply everywhere with the
maximum provision found in any of the states through which
it passed.
Although much of the protective railroad legislation is
mainly for the benefit of employees, it is recognized that the
safety of the public depends in large part upon the safety
of those who are entrusted with the care and management of
trains. It is this aspect of the matter which has largely in-
fluenced the courts in rendering favorable decisions on safety
and health laws for railway employees.
The enforcement of protective regulations in relation to
railway labor has in the majority of states been entrusted to
railway or public utility commissions created primarily to
supervise or regulate rates. In this class of legislation, as in
the regulation of conditions in factories, workshops, and
mines, it has been found impracticable to embody in the
statute law specifications which will be effective under diverse
and constantly changing conditions. For this reason many
legislatures have delegated to the railroad commissions power
to work out details of provisions and to prescribe safety rules
and regulations. This method of protection has repeatedly
been sustained by the courts. In 19 13 the law creating the
duced the 191 5 legislature to pass a repealing act, which, however, was
vetoed by the governor.
SAFETY AND HEALTH 349
Railroad Commission of Indiana, and an early ruling of the
commission fixing a 1,500 candle-power standard for locomotive
headlights, were both attacked as unconstitutional. The case
was carried to the supreme court of the state, which upheld
the delegation of legislative powers, declaring that "The de-
cisions of this court and the courts of other states in this
regard are clearly against the appellant's contention." 1
4. Development of Standards
A careful study of the early laws to preserve industrial
safety and health, as passed by Congress and by the legis-
latures of the fifty American states and territories, discloses
at once four fundamental defects.
(j) Defects of Early Legislation
First among these defects is the incompleteness of these laws.
It was long the custom of legislatures to specify in the law
the industries and danger-points which were to be safeguarded,
and to confine the inspectors' authority to the places and
conditions mentioned. Under this method many industrial
danger-points were overlooked. Perhaps ' ' buzz-saw " or " dan-
gerous dusts" or "foundry" was omitted from the law, in-
advertently or otherwise. Although often fraught with harm
to the worker, these unmentioned points were outside the
authority of the inspection officials, and the workers received
no protection until the law could be changed. Frequently,
too, a qualifying phrase greatly limited the operation of a
good law. For example, the law in one state required poison-
ous fumes generated "in the course of the manufacturing
process" to be removed. While varnishing the interior of
1 Vandalia R. Co. v. Railroad Commission of Indiana, 182 Ind. 382,
101 N. E. 85 (1913). This case was, however, appealed to the United
States Supreme Court where, in November, 191 5, it was still pending.
For a clear opinion on the delegation of legislative authority see Minne-
apolis, St. Paul and Sault Ste. Marie R. Co. p. Railroad Commission of
Wisconsin, 136 Wis. 146, 116 N. W. 905 (1908).
35© PRINCIPLES OF LABOR LEGISLATION
vats in ;i brewery two men died and one was totally blinded
for life, due to inhaling the poisonous fumes of wood alcohol
used in the varnish. But because varnishing vats is in the
nature of repair- work and does not come "in the course of the
manufacturing process," the inspectors could not legally
remedy the dangerous situation. It was necessary to wait an
entire year (in most states it would have been two years)
before the legislature convened and the law could be amended.
These illustrations indicate a common weakness of early
safety and health laws in many states.
The second fundamental defect is the absence of direct re-
sponsibility. Many laws placed no obligation whatever upon
an employer to safeguard danger-points nor upon the em-
ployee to aid in maintaining safety except "in the discretion
of the commissioner of labor," or unless "the commissioner
so directs," or "if in the opinion of the commissioner of labor
it is necessary." This type of legislation placed no duty upon
the employer to provide nor upon the employee to maintain
proper protection until required to do so by the inspector.
No protective devices had to be provided until the inspector
called and ordered them installed. Scarcely a state but has
had laws of this character.
The third fundamental defect is the absence of well-defined
standards. The old theory of factory inspection legislation
assumed that the legislatures, often made up largely of lawyers
and farmers, would define in the law the exact nature of pro-
tection to be provided in factory, workshop, or mine. But be-
cause of inadequate information, and possibly also because of
fear of adverse court decisions, our lawmakers vaguely re-
quired merely that dangerous machinery be " sufficiently guard-
ed," usually "where practicable," and left it to the poorly
trained and poorly paid inspector to enforce these indefinite
laws, usually "in his discretion." This discretionary power,
when placed in the hands of uninformed officials, brought this
method of lawmaking into disrepute among employers, em-
ployees, and the public.
The fourth fundamental defect is the lack of responsiveness
to changing industrial conditions. When it had become ap-
parent that many of the early laws were failing of their pur-
pose because of the foregoing blemishes, there followed a
SAFETY AND HEALTH 351
comparatively brief period during which efforts were made
to frame comprehensive, scientific provisions, free from
"jokers" and loopholes, and to secure their passage by the
legislatures. Perhaps the most noteworthy example of such
legislation was the standard law enacted in several states
providing for the protection of workers in the lead trades.
In this instance, after careful investigation by the federal
government supplemented by private studies and many con-
ferences, a very specific bill was drafted to apply to the various
processes in the manufacture of lead salts, and the resulting
legislation served a very useful educational purpose. In a
few states also the laws undoubtedly hastened the efforts of
employers to make their work-places sanitary. But it was
found that some specific safeguards minutely prescribed in
the statutes were very quickly out of date. In order that
they might be superseded by improved devices or methods
there was once more required the slow and expensive action
of legislatures, which in most states might not be in session
again for more than an entire year. The impracticability of
embodying in statute law specific danger-points and specific
remedies became clear.
(2) The Method of Administrative Orders
Legislators themselves began to recognize the futility of
attempting to formulate in the short and busy sessions, con-
vening in most states only once in two years, proper protective
measures. They saw that the proper persons to accomplish
this work efficiently were those who had an opportunity to
familiarize themselves with changing industrial conditions.
Therefore, in several states, legislators decided that they would
no longer attempt to enact laws specifying in detail what shall
be done, but instead would ask that work-places be made
safe. To carry out the will of the legislature they provided
a commission to work out with employers and employees the
best possible methods of protection. After public hearings,
the methods agreed upon were issued by the commission in
the form of administrative orders or regulations to apply
state wide and to have the force of law. Here we find the
352 PRINCIPLES OF LABOR LEGISLATION
very foundation of effective safety inspection work. The
key-note is cooperation. The experience of the worker, the
knowledge of the employer, and the critical constructive ability
of the expert are all needed in the formation of effective stand-
ards of health and safety and in the enforcement of these
standards.
This new method of regulating industrial conditions through
administrative orders cooperatively formulated and issued by
a permanent commission, has resulted in several states in a pro-
gressive and accurate adjustment of factory inspection to the
changing methods and new risks that accompany modern in-
dustry. Concerning this method a former chief factory in-
spector has said: "As a state inspector, my experience has
demonstrated that the arbitrary imposition of rules of law will
not, in itself, produce satisfactory standards for the safety and
health of employees in factories, mills, and workshops. . . . The
observations which I have made emphasize the importance of
cooperation and of education of both parties to the labor
contract as to what are ideal factory conditions. This co-
operation must be brought about if substantial results with
reference to safety standards are to be obtained through state
inspection." Fortunately scientific accident prevention has
recently been brought into the foreground by the adoption
of workmen's compensation acts, and it has quickened the
movement for reorganization of administrative boards in
many states.
No longer is it necessary in states like Ohio and Wisconsin,
for example, to wait two long years for a session of the legis-
lature in order to submit proposals for the proper protection
of the workers. No longer need specific rigid provisions be
drafted into bills and thrust upon the bewildered attention of
the legislators while temporarily in session at the state capitol.
The legislature has laid down the law in a broad way; the in-
dustrial commission, as rapidly as circumstances permit, may
fill in the administrative detail. Under this new system the
industry itself makes the laws for its own shop government.
Employers and employees, with the aid of impartial experts,
are learning through self-expression the importance and the
practicability of the now popular motto, "Safety first." The
prevention of industrial accidents and diseases, particularly
SAFETY AND HEALTH 353
when accompanied by social insurance, is becoming a matter
of enlightened selfishness; the general and the specific statu-
tory requirements of former years are being supplanted by
scientific standards developed through administrative orders
based on continuing investigations. 1
1 See Chapter IX, "Administration."
23
CHAPTER VIII
SOCIAL INSURANCE
For most of the economic hazards of life there has been
developed an appropriate method for the distribution of losses
and the subsequent elimination of risks. Marine insurance,
for the financial protection of those who send their goods down
to the sea in ships, was the first to be developed on an exten-
sive basis. Insurance against loss by fire is now a regularly
accepted precaution in every community. By this common
method of insuring against loss, each individual in the or-
ganized group is assured that in case of the destruction or
damage of his property he will be reimbursed from a fund
contributed little by little by the whole group. Insurance,
accordingly, has been denned as an arrangement for distribu-
tion among many of the losses sustained by a few.
By this thin-spreading of individual losses over a large
group, the man receiving an income from property destroyed
by shipwreck or by fire is in a position to reinvest. Evenj
more necessary than for the property-owner is insurance fori
the workingman, whose ability to labor is his only asset and!
who is peculiarly liable to be "deprived of his income. When|
the laborer, no matter how efficient he may be, has as a result
of either individual or collective bargaining secured a job for
himself even if at a wage and under hour limitations which are
temporarily acceptable, his economic position is still pre-
carious. He and his family are still face to face with excep-
tional economic risks including the suffering and want fol-
lowing accident, illness, invalidity or premature old age,
normal old age, premature death, and unemployment.
Peculiarly necessary, therefore, is this common arrangement
for group or social action known as insurance, when those who
suffer the losses are workingmen solely dependent for support
SOCIAL INSURANCE 355
upon their ability to labor. When provision for such in-
surance is made through legislation, it marks the development
of a settled policy on the part of society to provide protection
for one group in the community which either is in greatest
need of the protection or which on account of insufficient
income or forethought fails to buy such protection through
private commercial channels. It is therefore natural to term
this insurance social insurance.
The most substantial reason why wflg e-enrnerc: rin tint
voluntari ly insure themselves against the risks of accident and
illness, invalidity and old age, early death and unemploy-
ment, is insufficient , income. Reliable information from con-
servative private and public reports amply confirms the
statement that the average wage-earner with a family is not
receiving pay for his labor sufficient "to secure the elements
of a normal standard of living." 1
A further reason for the failure of the underpaid masses to
insure themselves is in differenc e or lark of foresight, enneem -
ing the p roblems of the futur e. Although thrift in the pres-
ence of subnormal living occasioned by low wages may at
times become a positive social vice, provision for the future
is on the whole necessary and beneficial. Furthermore, it
is recognized that for millions of laborers saving will take
place only under a distinct incentive. This "enforced sav-
ing" against the inevitable rainy day in the life of the work-
ingman is most effectively brought about through the periodi-
cal collection of dues or premiums for the support of the various
forms of social insurance. Moreover, it has been discovered
that community of interest in directly bearing the financial
cost of insurance furnishes a kind of cooperative pressure on
employers 2 which can be utilized effectively in the elimination
of risks in so far as they are preventable. The rapid develop-
ment of the "Safety first" movement which followed so
closely the enactment of workmen's compensation laws is
sufficient evidence of the preventive power of social insurance.
Thus, although beginning in each case with some form of
private organization, there has been developed, to meet the
peculiar risks which modern industrial workers must endure,
1 See Chapter IV, "The Minimum Wage."
8 See Chapter IX, " Administration."
356 PRINCIPLES OF LABOR LEGISLATION
a special kind of insurance, depending for its inclusiveness,
its financial security, its economical administration, and its
effectiveness in reducing the cause of each particular evil,
upon an clement of so cial co mpulsion.
Various countries have social insurance against accident
and occupational disease, against sickness, against old age and
invalidity, against death and the consequent dependency of
widows and orphans, and finally against unemployment. In
all of this social action an important element of self-defense
is not lacking. It_Js _clearly recognized that insurance i s
the most effective devi ce for protectin g society itse lLagainst
the press ure of incapacitated indivi duals who otherwise would
be thrown upon the com mu nity for maintenance. _ And while
attempting to a void the demoralizing round of charity, by^
means of an insu rance program which . aims at .nothing less
than e ventual abolitio n of pove rty, there is consci ously pro-
moted_a_system of individual care aimed at the scientific pro-
mot ion of the worke r's efficiency.
These advantages to society In protecting workmen against
the suffering and loss resulting from their being incapacitated
in any way for manual labor, Emperor William I of Germany
had principally in mind when on November 17, 1881, he sent
to the imperial legislature the historic message outlining a
complete system of social insurance. This document has been
so important in its influence in Germany and throughout the
world that it has been called by some enthusiasts " the monu-
ment of the new social order." It marked the beginning of
a great new movement in labor legislation.
1. Industrial Accident Insurance
The first kind of social insurance to be developed exten-
sively through legislation in the United States, probably be-
cause of the comparative ease of recognizing both the indus-
trial cause and the far-reaching extent of the evil, is insur-
ance against occupational accidents and diseases, or as it
is more popularly termed in this country, workmen's com-
pensation.
Oim ppnyatirm t o the injur e d workmanjs based -upeft-the
SOCIAL INSURANCE 357
theory, t^at the ^ngnrnpr of pmnomin gnorla f.hrmlH Vionr nil
f\ yn ^vpfMicpg. inrn r r orl Jn 1 hr> prrvrliint inn nf gtirVi gnnrk Among
those expenses must be included the pecuniary losses from
deaths and injuries QCCUmag i" thp regnlnr rnnrse of p godw?-
tion. Wages lost, medical attendance, and burial expenses,
in case of accidental injury or death are all losses which should
be considered as a part of the expense of production. If
these losses are to be borne by the workman, he indirectly
carries part of the expense of production. In order to avoid
this, the expense of work accidents, it is now generally agreed,
should be treated like all other expenses of production; it
should be borne by the employer in the first instance, and /
be shifted by him, in the form of increased prices, upon the
consumer of those goods in the production of which the in-/
juries were sustained.
Our present compensation laws have passed through a long
period of development, and have many precedents. As min-
ing and navigation developed in Europe, the workmen of these
two industries formed, in the eighteenth century and some-
times even earlier, mutual accident insurance associations for
their own protection. The above industries were the pioneers
in forming such mutual associations largely because each man
was greatly dependent for his safety upon the care of his fel-
low workmen. 1
In the handicraft production of the middle ages, not only
were the workmen very closely related, but there was also
a close connection between the master and his servants.
Manufacturing in the gilds was conducted on a small scale,
and each master had but few helpers. Accidents were not
numerous because machinery was not developed, and produc-
tion was carried on at low speed. When injuries did occur,
the master, at least theoretically, took care of the disabled.
This personal relation of employer and employee to a great
extent disappears with the development of large scale industry.
As the number of employees to each establishment increased,
the owner could no longer give them his personal attention
and care. The workman gained more personal freedom, but
1 United States Commissioner of Labor, Twenty-fourth Annual^ Report,
1009, "Workmen's Insurance and Compensation Systems in Europe,"
Vol. I, p. 977-
35S PRINCIPLES OP LABOR LEGISLATION
lost the aid of his employer in case of sickness and accident.
To recover damages he now had to seek relief by legal proceed-
ings, either under the common law or under statutes estab-
lishing employers' liability; he had to bring suit against his
master.
(/) Rules of Employers' Liability
The conditions under which the injured could recover in
court were based upon a series of rules which included (a) the
duties of the employer; (b) the burden of occupational risks;
(c) the fellow servant rule; (d) contributory negligence; and
(e) assumption of risks. 1
a. Duties of the Employer. It was considered the duty of
the prnployor tr> "gf r" ag °nnHe ^nrp in protecting his em-
ployees against injury while engaged in his service. 2 Nu-
merous court decisions defined this obligation of the employer
in considerable detail. He was required to provide a safe
place to work, to furnish safe tools and appliances, to con-
duct his business in a safe manner, and to select competent
fellow servants. B ut reasonable care required. the_£uarding
of _onlv those dangerous conditio ns of which th e em ployer had
knowledge or of which by the exercise of reasona hle-xaxe
he should have ha d knowledg e. 3 It is held by many experts
that no matter how great caution is taken against accidents,
many mishaps will occur which result in death or injury to
the workman. Establishments in which every machine is
guarded and where safety work is carried on ably and con-
scientiously, will nevertheless, it is declared, have numerous
accidents. These injuries are said to be due to the inherent
hazards of the ind ustry ; nothing will prevent them.
b. Burden of Occupational Risks. It is to these accidents
that the principle of the burden of occupational risks applies.
The employee assumes the ordinary risks of the emp1<~>yrnfmt.
in__wiii£hji e engages . In an early American case the court
stated that "The general rule, resulting from considerations
1 See E. H. Downey, History of Work Accident Indemnity, 1912, p. 17.
2 Priestly v. Fowler, 3 Meeson and Welsby, 1, 6 (England, 1837).
3 Magee v. Chicago & Northwestern R. R. Co., 82 Iowa 249, 48 N. W.
92 (1891).
SOCIAL INSURANCE 359
as well of justice as of policy, is, that he who engages in the
employment of another for the performance of specified duties
and services, for compensation, takes upon himself the natural
and ordinary risks and perils incident to the performance of
such services, and in legal presumption the compensation is ,
adjusted accordingly." 1 Freeing the employer from liability
thus left a vast number of injuries and deaths as a direct
burden upon the workmen and their dependents, with no
chance of obtaining damages.
c. Fellow Servant Rule. The rules holding the employer
responsible for exercising reasonable care in protecting his
employees, and exempting him from liability for inherent oc-
cupational hazards, were recognized uniformly by the courts.
The third, or fellow servant rule, involved more serious dif-
ficulty. T he usual rule of law is th at n. ma ster is responsib le
for the negligence or carelessness of his ser yants i n the course
of_th eir duties. Since very many accidents to workmen can
be traced to the carelessness or negligence of a. co-employee ,
the application of the rule as between fellow servants was felt
to be harsh. 2 Exception to the general rule was first taken
by the English Exchequer Court in [837 in the .-Case of Priestl y
v*. Fowler. 3 A butcher driver's helper was injured by the
breaking down of the wagon. He brought suit against the
butcher for damages on the grounds that the wagon was in-
sufficient for its purpose, and that it had been overloaded.
Damages were denied on the ground that if they were allowed
the master's liability would extend very far. He might be
held liable to the footman who was injured by a defective
wagon due to the negligence of the coachmaker, or to the
servant for the negligence of the cook in not properly cleaning
copper vessels in the kitchen. Besides, the opinion states,
the driver's helper "must have known as well as his master
and probably better" that the wagon was insufficient, or
overloaded, and might have refused to use it.
A similar decision was rendered four years later in America,
1 Farwcll v. Boston & Worcester R. R., 4 Metcalf (Mass.) 49, 57 (1842).
2 Consequently the courts, declare Shearman and Redfield in The Law i
of Negligence, "boldly invented an exception to the general rule off
masters' liability, by which servants were deprived of its protection."'
(p.n.)
3 Priestly v. Fowler, 3 Meeson and Wclsby 1, 5 (England, 1837).
360 PRINCIPLES OF LABOR LEGISLATION
without mentioning the Priestly case. In this case 1 damages
were denied a locomotive fireman who had been injured owing
to the negligence of the engineer under whom he worked.
It wa s held that the railroad company was not a guarantor
to one employee against the negligence of other employees;
that the fireman'should have been aware of the perils of his
employment, and that the plaintiff was paid for his labor
and for the danger to which he was exposed.
In 1842 Chief Justice Shaw of Massachusetts gave the fel-
low servant rule a definite formulation and a wide application
in deciding the case of Farwell v. B oston and Worcester R ail^
road Corporati on' 2 in favor of the defendant. An engineer
brought action for damages because he had lost a leg due to
the switchman's neglecting to change a switch. Justice Shaw
argued that any servant might reasonably anticipate that
his associates will at times be careless and negligent ; that this
is one of the risks of employment, to which, in legal pre-
sumption, the compensation is adjusted. Want of care can
be anticipated as much as a coupling out of repair. The
brakeman can guard against one as much as against the
other — being powerless against both.
This chain of reasoning was accepted as sound and con-
elusive, and numerous later decisions were based on it. It
relieved the master from all liability for an injury sustained
on account of the negligence or carelessness of a fellow ser-
vant provided the master had exercised reasonable care in
his selection. 3
d. Contributory Negligence. According to the doctrine of
contributory negligence a plantiff for damages for an injury
occasioned by the fault of the employer must, in order to win
his case, establish his own freedom from negligence. Any
negligence on the part of the injured, no matter how slight in
comparison with that of the employer, will cause him to lose
the suit, if without that negligence the accident would not
have occurred. Such negligence exists if the employee con-
tinues to work under conditions which are apparently danger-
1 Murray v. South Carolina Ry. Co., 1 McMullan 385 (1841).
2 Farwell v. Boston and Worcester R. R. Corporation, 4 Metcalf (Mass.)
49 (1842).
3 Seymour D. Thompson, Commentaries on the Law of Negligence, 1901-
1905, Vol. IV, p. 270, §4048.
SOCIAL INSURANCE 361
ous and which a reasonably prudent man would avoid, or if
his own want of due care contributed as a proximate cause
to the accident. 1
e. Assumption of Risk. As a last resort to free himself
from liability the employer could set up the defense that the
injured workman had "assumed" the risk. The risk referred
to in this connection is not the ordinary inherent hazard of
the occupation, but an abnormal danger of which the em-
ployee was fully aware, but in spite of which he continued to
work. The principle of assumption of risk has, however,
been modified in several states by statutes in favor of the
workman. This is particularly true in case of children and
of railroad workers.
It can easily be seen that with these last four rules all
aiming to relieve the employer of liability it is extremely dif-
ficult for the injured workman to win a suit for damages.
In order to gain a favorable verdict he must be able to show \
that the injury was the immediate result of the employer's
failure to exercise ordinary care, and that it was not contrib-
uted to in any degree by his own want of ordinary care.
Moreover, he cannot recover if the accident was due to an
ordinary hazard of the employment, or to the negligence of
a fellow workman, or to a defect due to the negligence of the
employer that was known to the injured and that created a
condition under which a prudent man would not have con-
tinued to work.
Satisfactory statistics are not available to show definitely
the proportion of injured men who received indemnity under
these liability doctrines. From the meager investigations
which have been made, however, it may be concluded that
but few _reco vej£d_dama ges, and th at the_amounts were jn
many cases shamefully small. Under the liability system |
insurance companies have engaged in carrying the employer's
risk. They have expert legal advice, and are able to con-
test wage-earners' claims even more effectively than the
average employer. It is true that numerous laws have been
enacted in most countries attempting to place more liability
upon the employer; Germany passed a law, wide in scope,
1 Butterfield v. Forester, u East 60 (England, 1809); Haley v. Chicago
& Northwestern Ry. Co., 21 Iowa 15 (1866).
3 6a PRINCIPLES OF LABOR LEGISLATION
to that effect in 1S71, and Great Britain followed in 1880.
Notwithstanding all attempted legal regulation, the position
of the injured workman was not mueh improved. To recover
he had to go to the courts and had to meet the strong legal
opposition of insurance companies or of his employer.
Not only are the i njured man's chanc es to w in his case very
small and the ma chinery too slow to bring relief when it is
most needed, but the system is extremely wasteful. The fol-
lowing figures taken from the records of ten insurance com-
panies for a three-year period will substantiate this state-
ment : l
Collected from employers $23,523,585
Absorbed by companies in profits and expenses. . 14,963,790
Received by plaintiffs' attorneys (approximately). 1,900,000
Received by injured workmen or their dependents
(approximately) 6,660,000
Of every $100 paid by the employer in premiums, but $28
reached the workman, and that amount only after a long
legal action.
An investigation of 327 firms in New York in 1907 showed
that these companies paid out on account of accidents $255,-
153, of which 56 per cent, reached the workmen, 2 the other
44 per cent, being consumed by court costs, insurance com-
pany's profits, legal fees, and other charges.
Without question but a small proportion of cases are taken
to court, because the injured knows an attempted recovery
is but a gamble with all odds against him. As a rule the in-
surance companies act as if their duty under employers'
liability is not to compensate the injured, but to defeat their
claims.
(2) Beginnings of Industrial Accident Insurance
Germany was the first country to realize that in order to
give certain and adequate relief to the injured workman it
was necessary to provide insurance for all laborers, and for
all accidents. The first bill to this effect was introduced in
1 New York Commission on Employers' Liability and Other Matters,
First Report, 191 o, pp. 29-31.
2 E. H. Downey, History of Work Accident Indemnity, pp. 82, 83.
SOCIAL INSURANCE 363
the Reichstag in 1881, but failed to be adopted. The follow-
ing year a second bill was introduced providing for sickness
and accident insurance. The sickness clauses, including pro-
visions for accident compensation during the first thirteen
weeks of disability, were passed in 1883, but the accident
insurance was again defeated. Finally in 1884 a bill pro-
viding compulsory insurance against accidents was passed
which became effective in October, 1885.
a. German System. The German law has been frequently
amended and extended in scope, and to-day practically every
industry of that country is included. The federal council
may exempt non-hazardous establishments upon application,
but as late as 1909 no such exemptions had been made. 1
An accident is held to exist "if because of a sudden event,
taking place at a definite time, the physical or mental con-
dition of a workman is injured through an external wound
or an organic disablement." All accidents occurring in the
course of employment and causing a disability of three days
or more are covered. It is not necessary that the injured
was actually working when the accident occurred. For
example a man may be exposed to certain accidents during
the noon hour, such as a boiler explosion, in which case he
is entitled to compensation. An injury due to some external
force such as lightning is considered a compensable accident
if the injured is exposed to such risk to a higher degree be-
cause of the nature of his employment. Accidents by fault
of a third party arc included if the origin or degree is ma-
terially influenced by the characteristics of the establish-
ment. This clause is broadly interpreted, and covers all
accidents due to negligence or lack of care of a fellow servant.
Under the German system the compensation of the injured
workman for the first thirteen weeks of disability comes from
the sick funds. During the first four weeks he receives 50
r cent., and from the fifth to the thirteenth week inclu-
e 66^ per cent, of his wages, and the latter proportion is
itinucd from the accident funds until temporary dis-
ability ceases. The sick funds are maintained by contri-
butions two-thirds of which are paid by the workmen and
1 United States Commissioner of Labor, Twenty-fourth Annual Report,
Vol. I, p. 993.
364 PRINCIPLES OF LABOR LEGISLATION
one-third by the employers. From the fifth to the thirteenth
week the additional 16^ percent, of wages is paid by the
employer in whose establishment the accident occurred.
Thus accident compensation comes from three sources:
( i ) From the first to the fourth week of disability, inclusive,
from the sick funds;
(2) From the fifth to the thirteenth week, inclusive, from
the sick fund and the additional i6^j per cent, from the
employer;
(3) After the thirteenth week from the accident insurance
associations composed of employers.
During the decade 1886 to 1895 accidents causing a dis-
ability of less than thirteen weeks formed 84 per cent, of the
total, and the cost of these injuries, paid from the sick funds,
is, according to Dr. Bodcker's estimate, 16^3 per cent, of the
total cost of accident insurance. Since the insured work-
men pay two-thirds of the expense of the sick funds, they
therefore provide about 11 per cent, of the cost of accident
insurance and the employers 89 per cent. 1
In addition to the monetary benefit, free medical attend-
ance, medicines, and appliances are provided. During the
first thirteen weeks these costs are paid by the sick fund, and
after that by the insurance associations. To bring about a
speedy recovery, and to avoid large pensions which would
result if the injured were permanently disabled, the insur-
ance associations have established numerous hospitals, con-
valescent homes, and similar institutions.
In case of permanent total disability the injured workman
receives 66^ per cent, of wages for life. For permanent
partial disablement he receives a pension in proportion to
the degree of disablement. In computing the amount, the
nature of his occupation and training are taken into considera-
tion; for example, the loss of a finger would affect a linotype
operator much more seriously than a foundry laborer, and
accordingly he would receive a larger pension.
Benefits are based on wages in the last employment. If
wages exceed $428.40 a year, only one-third of the excess may
be calculated.
1 United States Commissioner of Labor, Twenty-fourth Annual Report,
Vol. I, p. 999.
SOCIAL INSURANCE 365
If the accident results in death a funeral benefit is paid in
all cases, whether the deceased has left dependents entitled
to survivors' benefits or not. The amount paid is one fif-
teenth of the annual earnings, but not less than $11.90. This
benefit must be paid within one week after occurrence of
death, even if burial is impossible, as in case of drowning or
burning. A liberal pension is provided for surviving depend-
ents. The widow receives 20 per cent, of the average annual
earnings of her husband, for life. If she remarries she is given
three times the annual amount, or 60 per cent., in a lump
sum, but then her benefits cease. If a woman supporting a
dependent husband is killed, he receives 20 per cent, of her
wages as long as he is unable to support himself. Each child
receives 20 per cent, of the wages of the killed parent until
the age of fifteen, but the total benefits may not exceed 60
per cent, of the average annual earnings. If there are more
than two dependent children in addition to the widow, the
benefits are divided equally so as to total 60 per cent.
The cost of insurance is defrayed by assessments on em-
ployers based on the amount of wages paid to employees and
the nature of the risk. The board of directors of the insur-
ance association classifies the risks, and adopts a schedule of
charges which must be approved by the imperial insurance
office. Premiums collected are based upon the cost of the
previous year. It is evident that under such a system the
cost will increase every year until a maximum is reached.
Each year more widows are added to those already drawing
pensions, and each year more are added to the list of per-
manently disabled. Until approximately as many widows
and disabled die as are added each year, the cost of insurance
will increase. The argument is often made that under such
a system the new concerns do not receive justice. They are
assessed the same amounts as the older ones, and consequently
are obliged to pay for losses of the past, and for accidents to
which they did not contribute. The fallacy of this argument
is easily seen when we look at the underlying theory. The
burden of insurance must be borne by the industry, and not
by its individual members. When a new company becomes
a member of a trade association, that industry has already
caused a certain number of accidents and must bear the
3 66 PRINCIPLES OF LABOR LEGISLATION
losses. The individual employer finds remuneration in ad-
vanced prices, by which the cost of insurance lias been shifted
upon the consumer. The premium should be regarded more
in the nature of a tax upon industry. A new company knows
in advance what that tax is, and is able to make provision
for it when it is organized.
The most important branch of the administrative ma-
chinery of the German compulsory insurance law is the mutual
trade associations. Employers in related trades organize their
own associations, fix their own rates, and enforce their own
safety requirements, and to the special facilities which this
method affords is mainly due the conspicuous success of the
German system in promoting accident prevention. Each
Berufsgenossenschaft or trade association has its own constitu-
tion, but is closely regulated by the state and the imperial
insurance office. The last named authority, whose expenses
the government assists in defraying, is supreme over the whole
field of industrial insurance, and has its office at Berlin. It is
composed of a president, and permanent and temporary mem-
bers. The president and permanent members are appointed
for life by the emperor upon nomination by the federal coun-
cil. Of the thirty-two temporary members, eight are chosen
by the federal council, at least six of whom are from its own
membership, twelve are selected by employers, and twelve by
the insured. Subordinate to the imperial insurance office is a
system of local and superior insurance offices, each composed of
public officials with associates elected by and from employers
and employees respectively. Judicial and administrative
matters passed upon by the local office may, subject to
certain restrictions, be appealed to the superior office, and
from that to the imperial office, whose decision is usually
final.
According to the report of the imperial statistical bureau
issued in 1914, over 28,000,000 workmen were insured against
accidents in 19 12, and $42,500,000 was paid in indemnity.
The system is cheaply administered and cases are settled
quickly, giving relief when it is most needed.
b. Methods in Other Countries. The German insurance
system has been described in detail because it was the first
to be introduced, is one of the most efficient, and was the
SOCIAL INSURANCE 367
experiment upon which, in various degrees, other countries
based their acts.
Great Britain passed a compensation law in 1897 which was
frequently amended and amplified in scope until the present
law was enacted in 1906. 1 All employments, and all injuries
arising out of and in the course of employment, are covered.
In case of death three years' wages are paid in a lump sum
to the dependents. Disability benefits are limited to 50 per
cent, of wages, but continue for life if the disability is per-
manent. The employer bears the entire cost of compensation,
and may either carry his own risk under proper safeguards
or insure in a private or mutual company.
The principle of industrial accident insurance, or workmen's
compensation as it is usually called, is now so generally ac-
cepted that over forty foreign countries, including practically
all of any industrial importance, have laws of this character,
covering together some 50,000,000 wage-earners. 2 Benefits
range from 50 per cent, to 80 3 per cent, of wages, and in most
of the important countries medical and surgical aid is ren-
dered. To secure the payment of benefits, employers are
usually required to insure their risk, often in institutions pre-
scribed and controlled by the state.
c. Inclusion of Occupational Diseases. Though workmen's
compensation laws originally concerned themselves only with
mechanical injuries, such as cuts, broken bones, or loss of
members, it soon became obvious that elementary justice
required the extension of similar relief to the victims of specific
industrial diseases contracted in the course of employment.
The first country to take this forward step was Great Britain,
1 For complete summary of this and other European laws see United
States Bureau of Labor Statistics, Bulletin No. 126, 1914, pp. 131-179.
-Among the more important foreign countries with workmen's com-
pensation systems are: Austria, Belgium, Denmark, France, Germany,
Great Britain, Hungary, Italy, Japan, Netherlands, New Zealand, Nor-
way, Portugal, Queensland, Russia, South Australia, Spain, Sweden,
Switzerland, and Western Australia.
3 This latter percentage occurs only in the Swiss law of 191 1, Sec. 74,
and is payable only during the period of illness immediately following an
accident, after which the compensation for permanent total disability is
reduced to 70 per cent, of wages. Under both the Swiss and the German
laws, however, indemnity may be increased to ioo per cent, of wages in
exceptional cases requiring special care.
3 68 PRINCIPLES OF LABOR LEGISLATION
which in the act of 1906 included for compensation a schedule
of six of the commonest occupational maladies. While South
Australia 1 and Ontario 2 have followed this example, the
mother-country has three times expanded its original schedule
until in 1015 no fewer than twenty-five diseases were there
compensable. These include poisoning by lead, mercury,
phosphorus, or arsenic, compressed-air illness, anthrax, a num-
ber of miners' ailments, glass workers' cataract, and teleg-
raphers' and writers' cramp. In other countries, also, the
beginnings of similar consideration for victims of occupational
maladies are to be noted. Because of the peculiarly in-
fectious nature of the disease and its close connection with the
occupations in which it occurs, both France and Germany
now class anthrax, for compensation purposes, as an accident.
In France, also, by the financial law of 191 1, employers of
miners suffering from ankylostomiasis, or "miners' hook-
worm," are required to bear the expense of treatment and to
pay compensation. Foundations for a broad system of
occupational disease indemnity have, moreover, been laid in
Germany 3 and Switzerland. 4 In the former country the
federal council has been given permission, and in the latter
it has been ordered, to draw up a list of trade diseases which
shall be compensated for at the same rate as trade accidents.
Up to the beginning of 19 16, however, neither country had
drawn up its list.
(3) Compensation Legislation in the United States
As in other forms of social insurance, to be considered later,
the United States is far behind European countries in provid-
ing for the injured workman. The first legislation providing
for stated benefits without suit or proof of negligence was
enacted in Maryland in 1902, in the form of a cooperative
insurance law. 5 The law was narrow in scope, covering only
a small specific list of industries, and was declared unconstitu-
1 1911- 2 i9i4-
3 German workmen's insurance code, 191 1, Article 547.
4 Swiss federal law relating to sickness and accident insurance, 191 1,
Article 68.
s United States Bureau of Labor Statistics, Bulletin No. 126, p. 30.
SOCIAL INSURANCE 369
tional in 1904. 1 In 1908 Congress enacted a law granting to
certain employees of the United States the right to compensa-
tion for injuries sustained in the course of employment. In
19 10 an act was passed in Montana providing for the mainte-
nance of a state - cooperative insurance fund for miners and
laborers in and about mines. This also was declared un-
constitutional. 2
The first law of general application was passed by New
York in 19 10. It was made elective for most occupations, but
compulsory for an enumerated list of hazardous employments.
This statute was declared unconstitutional in 191 1 in the
case of Ives v. South Buffalo Railway Company, 3 but an
amendment to the constitution made possible the enactment
of a compulsory law in 19 14. Other states followed New
York's lead, and during the five years 1911-1915 compensa-
tion laws were enacted in thirty-one states and two territories
of the union. 4 Moreover, the 1908 law covering federal em-
ployees was extended to several additional classes of workmen,
including those on the Alaskan railways, and in 1907 the
United States Philippine Commission established limited com-
pensation for public employees in those islands.
One of the main obstacles to the enactment of effectiye_ com-
pensation laws has been the question of constitutionality . It
i s maintained that to require a per son to pay damage s Tor
an accident fo r whichThe was not to blame is taking property"
without~3ue^process_oyawTthat both employer and employee
are deprived of the right of trial by jury, and that the em-
ployer is charg ed with liability without fault.
Before the end of the year 191 5 the constitutionality of
compensation laws had been tested_hy. the, highest_courts of
1 Franklin v. United Railways and Electric Co. of Baltimore (1904).
Summarized in United States Bureau of Labor, Bulletin No. 57, 1905,
pp. 689, 690.
2 Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119
Pac. 554 (191 1).
3 Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431 0?"). .
* Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Illinois,
Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire,
New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, Texas, Vermont, Washington, West Virginia, Wisconsin, and
Wyoming.
24
370 PRINCIPLES (W LABOR LEGISLATION
no lower than twelve states. Four state courts declared such
laws unconstitutional, 3 upon Ihe above grounds, while all the
others upheld them.* Moreover, of the four states which suf-
fered an adverse decision, three — Maryland, New York, and
Montana — subsequently enacted laws which remained in force,
and the New York law was upheld by the same court which
in 191 1, before the constitution was amended, ruled out the
earlier act. The only point in a compensation law which had
1 >een passed upon by the United States Supreme Court was the
( )hio provision excluding from the obligation of the act shops
employing fewer than five persons, which was upheld as not
an arbitrary or unreasonable classification. 3
Among recent decisions, none is more indicative of a pro-
gressive attitude on the part of the bench than that in the
Jensen case, upholding the present New York law. The
decision, rendered in July, 191 5, establishes no new doctrine.
On the question of conflict of laws in interstate commerce
it reiterates the principle that regulations affecting such
commerce are within the jurisdiction of the state until
Congress by entering the field excludes state action, and
it emphasizes the well-established doctrine that no one has
a vested right, under the constitution, in the maintenance
of the common law.
On the question of the violation of the fourteenth amend-
ment of the federal constitution, the Oklahoma case of Noble
State Bank v. Haskell is considered to be decisively controlling.
Although it may be admitted that there is a taking of property
under the compulsory compensation law, it is less direct and
1 The unfavorable decisions in Maryland, New York, and Montana
have already been cited; the fourth was in Kentucky: Kentucky State
Journal v. Workmen's Compensation Board, 161 Ky. 562, 170 S. W. 1 166
(1914)-
2 The most important favorable state decisions are: In re Opinions of
Justices, 209 Mass. 607, 96 N. E. 308 (191 1); State ex rel. Davis-Smith
Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101 (1911); Borgnis v. Falk Co.,
147 Wis. 327, 133 N. W. 209 (191 1); State ex rel. Yaple V. Creamer,
85 O. 349, 97 N. E. 602 (1912); Sexton v. Newark District Telegraph
Co., 84 N. J. 85, 86 Atl. 451 (1913); Mackin v. Detroit-Timkin Axle Co.,
Michigan, 153 N. W. 49 (1915); Jensen v. Southern Pacific Co., 215 N. Y.
514, 109 N. E. 600 (1915); Western Indemnity Co. v. Pillsbury, Cali-
fornia, 151 Pac. 398 (1915); Hunter v. Colfax Consolidated Coal Co.,
Iowa (191 5).
3 Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571 (1915).
SOCIAL INSURANCE 371
at least as much in the public interest as the taking which
occurred in the Oklahoma case. "The theoretical taking,"
says the court, "no doubt disappears in practical experience
... a compulsory scheme of insurance to secure injured work-
men and their dependents from becoming objects of charity
certainly promotes the public welfare as directly as does an
insurance of bank depositors from loss."
It is the frequent recognition of the changed conditions and
their effect upon legal doctrine that constitutes the distinctive
quality of the New York decision. "In the way modern
undertakings are conducted it is rarely possible to trace the
personal fault to the employer, but he has been held liable
for wrongs of others under the doctrine of respondeat superior,"
says the judge. And again : ' This subject should be viewecjfj
in the light of modern conditions, not those under which the!
common law doctrines were developed. With the change im
industrial conditions an opinion has gradually developed!
which almost universally favors a more just and economical
system of providing compensation for accidental injuries to
employees as a substitute for wasteful and protracted damage
suits, usually unjust in their results either to the employer or
the employee, and sometimes to both. Surely it is competent
for the state in the promotion of the general welfare to re-
quire both employer and employee to yield something toward
the establishment of a principle and a plan of compensation
for their mutual protection and advantage."
The opinion ends with a reassuring note on the probable
attitude of the United States Supreme Court: "Fortunately
the courts have not attempted to define the limits of the police
power. Its elasticity makes progress possible under a written
constitution guaranteeing individual rights. The question is
often one of degree. The act now before us seems to be
fundamentally fair to both employer and employee. ... It
is plainly justified by the amendment to our own state con-
stitution, and the decisions of the United States Supreme
Court, notably in the Noble State Bank case, make it reason-
ably certain that it will be found by that court not to be
violative of the constitution of the United States."
Owing, however, to the adverse decision on the early New
York compulsory law in the Ives case, most American com-
372 PRINCIPLES OF' LABOR LEGISLATION
pensation acts have been made elective. That is, the em-
ployer is given his choice of accepting the act or of operating
under the liability law; but as an encouragement to the em-
ployer to elect compensation, the old liability defenses of fel-
low servant's fault, contributory negligence, and assumption
of risk, discussed earlier in this chapter, arc abrogated or
greatly modified. This is frequently called by its opponents
"club" legislation, but the courts have sustained it as a valid
exercise of legislative power [or a public end.
The relief which a compensation act gives to the injured
workman depends upon (a) the scale of compensation, (b) the
scope of the law, (c) the method of administration, and (d) the
security for payment of awards. A liberal law, that is, one
which provides a high rate of indemnity, will be of little
service unless it applies to many cases of accidents, and con-
versely a law covering many or all cases will not accomplish
what is intended unless the benefits provided are reasonably
high. Again, the practical results obtained, no matter how
liberal the law, will be seriously impaired unless means are
provided for effective administration and for securing the
actual payment to the injured worker or to his dependents of
the amount awarded.
a. Scale of Compensation. The object of indemnity is two-
fold — first and more important, to restore the workman's
earning power as completely and quickly as possible, so that
society will not be burdened with disabled human beings,
and second, to provide for the support of the family while the
surgical and medical treatment is being given. To effect
the former it is imperative that he receive efficient medical
and surgical care.
(a) Medical Attendance. The importance of medical at-
tendance is often underestimated. Proper, immediate care
tends not only to reduce the period of disability, but also to
diminish the number of serious, perhaps permanent complica-
tions. Lifelong impairment of earning capacity frequently re-
sults from improper care of fractures; infections or "blood-
poisoning" could be almost eliminated by efficient immediate
attention. Of 721 infections reported to the Wisconsin In-
dustrial Commission during a two-year period ending Sep-
tember 1, 1 913, about 600 were the result of small scratches
SOCIAL INSURANCE 373
and breaks of the skin. 1 These cases represented a total of
1 2,500 working days lost, and, under the Wisconsin law, a com-
pensation of about $40,000. Had proper care been provided
this large loss of time and money could have been avoided.
Full medical aid at the employer's cost is of benefit to the
workman in that it relieves his suffering, reduces the period
of disability, and permits his return to full earning capacity
in shorter time; at the same time,' in virtue of this fact, it
is beneficial to the employer inasmuch as the amount of
compensation is reduced. If the wage-earner is required to
provide medical treatment himself, he will not receive as good
care. The average laborer has little means to pay for good
service, even when earning full wages. When disabled and
receiving only a part of his wages, he is even less able to pro-
vide himself with proper care.
The amount of medical aid, in proportion to the total in-
demnity, is large. During 1914 a total indemnity of $1,254,-
000 was paid to injured workmen in Wisconsin. Of this
amount $420,000, or 33.3 per cent., was for medical aid. 2
Other states and insurance companies report the amount of
medical aid at from 29 per cent, to 43.8 per cent, of the
total cost of compensation. 3 Thus it is evident that medical
care is a very important factor in a compensation law and
should not be underestimated. It is of such importance to the
welfare of the injured and their dependents that the law should
require the giving of full free medical attendance, medicines
and appliances, and should impose a limit neither in time nor
in amount. Such is the requirement under the German law,
and besides vastly benefiting the injured it has achieved mar-
velous results in preventing permanent impairment.
The laws of our states are not so liberal in this respect.
While most states provide for medical care, they also impose
either a time limit, an amount limit, or both. The time limits
range from one week to ninety days, while the amount varies
from $25 to $250. In several states the administrative boards
have control over the amounts, and may extend the maximums
at their discretion.
1 Industrial Commission of Wisconsin, Shop Bulletin No. 5.
2 Figures obtained from Wisconsin Industrial Commission.
3 Workmen's Compensation, Senate Document 419, pp. 32, 33.
, i PRINCIPLES OF LABOR LEGISLATION
h is evident that with such low limits a large part of the
medical care must be borne by the injured. The amounts
may be sufficient to take care of the less serious injuries, but
in case of accidents resulting in fractures, dislocations, and
serious sprains a large part of the burden falls on the work-
man himself.
(b) 1 1 T ailing Period. It is customary, in compensation laws,
to provide no monetary benefits for the first few days of dis-
ability. The intervening time is known as the "waiting
period" and its object is to prevent malingering; that is, to
prevent a slightly injured man from pretending inability to
work, with the expectation of drawing part of his wages. On
the other hand, if the period is too long it will prove a hard-
ship to the injured. The proper length of the period is hard
to determine and varies with individual cases, but it seems
that three days is sufficient. 1 This view is upheld by actual
accident experience. Studies of accidents made by Dr. I. M.
Rubinow and by the Wisconsin Industrial Commission show
that about three-quarters of all accidents requiring medical
attendance terminate within two weeks, and that two-thirds
terminate within one week. Of these two-thirds, one-half
cause no disability other than on the day when the accident
occurs, and one-quarter cause disability lasting from one
to three days, while only one-quarter result in disability ex-
tending over more than three days. For example, a total of
36,000 accidents requiring medical attendance would be dis-
tributed about as follows :
Length of Disability Number of Accidents Per Cent.
Two weeks and more 9,000 25
More than one but less than two weeks 3>ooo 8-1/3
More than three days but less than one week. . . 6,000 16-2/3
More than one but less than three days 6,000 16-2/3
One day (day of accident) 12,000 33~i/3
Total 36,000 100
Hence, if the waiting period is two weeks only about a quarter,
and if it is seven days, only one-third, of the injured receive
1 The American Association for Labor Legislation recommends a
waiting period of not less than three nor more than seven days. See
"Standards for Workmen's Compensation Laws," American Labor Legis-
lation Review, December, 1914, p. 587.
SOCIAL INSURANCE 375
compensation. By reducing the period to three days, one-
half of those injured would be entitled to benefits.
In a small number of states there is no waiting period and
compensation begins on the day of accident. A few states set
a seven-day period, and most of the others provide for two
weeks. In some, however, compensation is paid from the
day of injury in case disability continues for more than a
specified period, as two, four, or eight weeks. Since the large
majority of accidents cause disability which terminates in a
short time, it is important that the period during which no
compensation is paid be made short. A short waiting period
is also an inducement for the employer or insurance company
to render the best treatment to the injured. The sooner the
man is able to return to work the less the compensation will
be, hence small accidents will be taken care of in a much
better way.
(c) Compensation for Total Disability. Injuries for which
compensation is paid may be divided on the basis of their
severity into three large groups, namely (1) death; (2) partial
disability or impairment of earning capacity such as the am-
putation or loss of function of a member; and (3) total dis-
ability of either a permanent or a temporary nature. The
vast majority of accidents result in disability of the last-
named sort.
The best American laws, such as are found in New York
and Ohio, award to the disabled workman 66% per cent, of
wages (within certain limits) during the entire period of dis-
ability. In permanent cases, of course, this means a pension
for life. The limits referred to are in New York a maximum
payment of $20 a week and a minimum of $5 a week, except
that if full wages be less than $5 full wages are paid.
Most of the laws, however, contain provisions far less liberal.
In some states the percentage of wages paid is 65, 60, or 55
per cent., and in the majority of American commonwealths
which have compensation laws it is still as low as 50 per cent.
The rate in the law of 1908 covering federal employees was
100 per cent (for one year only), but the executive order of
March 20, 19 14, applying to employees in the Panama Canal
Zone, where nearly half of the accidents to government em-
ployees occurred, changed it to 50 per cent, in that district.
3;6 PRINCIPLES OF LABOR LEGISLATION
The weekly maximum, also, is often lower than in New York,
l>eing sometimes $15 or $10, and in the Colorado act passed
as late as 191 5 the weekly maximum was as shamefully low as
$8. Besides granting a low percentage of wages, frequently
held down by a weekly maximum limit, most states still fur-
ther restrict the total amount to be recovered, either directly
or — what amounts to the same thing — by stating a maximum
period beyond which compensation is no longer payable.
Time limitations vary from 260 weeks to eight years, and
money limitations from $3,000 to $6,000.
The reason for these unprogressive restrictions is not hard
to find. It is that our compensation laws are based upon the
idea of merely keeping the injured and his family from star-
vation, rather than upon the principle of replacing wage loss.
The common 50 per cent, scale is obviously insufficient to
keep a family from hardship. Most workmen hardly receive
when employed enough to pay their current living expenses,
and when their income is cut in two these expenses cannot be
met. The low weekly maximums fixed in many states in-
tensify the deprivation. A family whose head receives or-
dinarily $25 or $30 a week has a fairly high standard of
living, and if in case of accident the maximum recoverable is
limited to $10 or $12 weekly, that standard cannot be main-
tained. This is especially true if disability is of long contin-
uance, yet some states which fix a $10 maximum for the first
300 or 400 weeks of disability reduce that sum thereafter to
$8 or even as low as $5 a week.
These excessive limitations upon the amount of compensa-
tion w r ork considerable hardship to the cases which they
affect, and should not be included in the law. If the accident
results in permanent total disability , the injured should receive
two-thirds of his wages for life, as is the case in Germany.
Nothing short of this will bring the proper relief. With a
two-thirds normal income the family will be deprived of some
things, but still the amount is sufficient to maintain about
the same standard of living, and even in the lower paid classes
to keep the family from dependence on charity. Under our
system of laws children are required to go to school until a
certain age, which means considerable expense. If in case of
accident causing a total loss of earning capacity no proper
SOCIAL INSURANCE 377
compensation is provided, or if the compensation period is
limited, it frequently means disintegration of the family.
(d) Compensation for Partial Disability. Compensation for
permanent partial disability is based in most states upon a
fixed schedule of a certain number of weeks' benefit for each
specific dismemberment, such as fifteen weeks for the loss of
a little finger, 125 weeks for an eye, or 215 weeks for a leg.
While this system of a fixed charge for each dismemberment,
regardless of its effect upon earning power, is easily adminis-
tered, it is open to serious criticism on the grounds of arbitrari-
ness and injustice. A system like the German, in which par-
tial disability is defined as a proportion of the loss of earning
power, is more difficult to administer but results in more equi-
table settlements. In response to the criticism that the num-
ber of weeks' benefit allowed by the fixed injury schedule is too
small there has been a tendency to increase the specific peri-
ods, but the best thought is now against this method and in
favor of indemnifying on the basis of the loss of earning power.
California for this purpose has worked out a schedule estimat-
ing the percentage of impairment in earning capacity caused
by each specific injury to workers of various age groups in
each industry in the state. If the injured suffering a perma-
nent impairment of earning capacity is a minor, his compensa-
tion should be increased until he reaches the age of twenty-
one, as his wages would probably have increased had he not
been injured. Several of our states already take cognizance
of this fact, and the number is growing.
(e) Compensation for Death. If the injury results in death
a funeral benefit should be paid in all cases, whether or not
the deceased had dependents entitled to compensation.
About $100 is sufficient to cover all essential funeral charges.
Some states have laws providing funeral benefits only if
there are no dependents entitled to compensation, but most
grant funeral benefits in all cases.
Our states have thus far not been very liberal in prescribing
the amount of compensation to be paid to dependents. Very
few of them grant pensions to widows for life or until remar-
riage. New York, the most liberal state in 191 5, prescribed
30 per cent, of wages for the widow until death or remarriage
and 10 per cent, additional for each child, the total not to
378 PRINCIPLES OF LABOR LEGISLATION
exceed (><>-. s per cent. A few states limit the death benefit to
a specified monthly amount, such as $35 or $50, while others
set a maximum for the total, varying from $2,000 to $6,000.
A life benefit to the widow and additional amounts for
each child up to the age of eighteen is the only rational sys-
um to adopt. Statistics show that the average age of in-
jured workmen is about thirty-two years. A young family
which loses its supporter at such an age cannot exist very
long on $3,000 or less. So small an amount will mean that
the family must lower its standard of living, and that the
children will not receive the proper care and education. Here
again compensation is regarded more in the light of a means
of preventing starvation than as a reimbursement for the loss
of earning power. The rates adopted by New York, men-
tioned above, are the most liberal in America, conforming
elosely to those of the German law. It may be expected that
in the future other states will follow New York's example and
grant to the widow a pension for life or during the period of
widowhood. If there are no dependents, the death benefit
should be paid to the state insurance fund if there is one, or
to the administration fund or to some other proper body.
This last provision is found in one or two laws, but if there
are no dependents all other states provide for funeral benefit
only. Full death benefits in all cases would tend to wipe out
the desirability to employers of engaging single men with no
dependents, or foreigners if the law excludes non-resident alien
dependents. To what extent this discrimination is practised
is difficult to discover.
The question as to whether alien non-resident dependents
should be entitled to death benefit has been considerably dis-
cussed, and a few states still expressly exclude them. In a
number of other states they are expressly included, and else-
where, as no mention is made of them, they are apparently
included by implication. There seems to be little justifica-
tion for excluding non-resident dependents; if our industry
has been responsible for the loss of a family supporter, due
remuneration should be made regardless of nationality or
residence.
b. Scope of Laws. A compensation system should apply
to all employments, and cover all injuries. In the early days
SOCIAL INSURANCE 379
of the movement, however, partly because of administrative
difficulties and partly because of the incompleteness of public
education on the subject, the exclusion of certain classes of
workers, and of certain sorts of injuries, was found temporarily
advisable.
(a) Employments Included. The four large groups of
workers commonly excluded from the protection of early
American compensation laws were farm laborers, domestic
servants, casual employees, and workers in employments not
carried on for the profit of the employer. In fixing the employ-
ments to be covered, three different methods have been
followed. One is to enumerate the employments to which
the act applies, another is specifically to exclude certain
employments, and the third is to exclude establishments with
less than a certain number of employees. Often two of
these methods are found in the same law. Of the three the
first, the "enumerated industries" plan, is the most objec-
tionable. It is difficult to draw the line between hazardous
and non-hazardous industries. A laborer may be killed no
matter how non-hazardous the occupation seems. As has
often been stated, it is that industry in which a person is
injured which is hazardous. The enumeration system is not,
therefore, in harmony with the theory on which compensation
is based. Of the other two methods, the "minimum number
of employees" plan is perhaps the better. By specifically
enumerating the excluded industries frequently a large
employer, as for example a large farm operator, is left out.
If the law applied to all employing four or more persons,
such an operator would be included.
In interpreting the exclusion of casual laborers the term
casual is often misconstrued. It should apply only to the
employment and not to the laborer. Freight handlers at a
dock, who work only when a boat is to be loaded or unloaded,
are for compensation purposes by no means casual laborers.
The irregularity of their employment is inherent in and a
necessary part of shipping by sea, and should in no way operate
to bar them from accident indemnity.
(b) Injuries Included. All injuries sustained in the course of
emplcyment should be compensated, except those occasioned by
the wilful intention of the employee to bring about the injury
3 So PRINCIPLES OF LABOR LEGISLATION
or death of himself or his fellow workmen. These are clearly
not a hazard of the industry, and should not be compensated.
Some states also exclude accidents caused in part by the
intoxication of the injured employee. Such exclusion is likely,
however, to cause litigation over the question of whether or
not the employee was "intoxicated"; and since compensation
legislation aims at preventing litigation and securing prompt
aid, limitations of this sort are to be deprecated. Moreover,
the safety of fellow workmen requires that the employer be
discouraged from hiring men who are prone to intoxication,
and an excellent method of accomplishing this result is to
make subject to compensation all accidents occurring to such
employees.
In order to induce the workman to make use of the safety
appliances supplied by his employer, the compensation may be
reduced if he wilfully fails to use such guards and appliances.
On the other hand, the compensation should be increased in
the same proportion if the employer fails to provide the proper
devices, and the laws of some states include penalties of this
nature. In Wisconsin, for example, the injured receives an
increase of 15 per cent, in compensation if the employer did
not provide guards as required by law, but, on the other hand,
his compensation is reduced 1 5 per cent, if he fails to use the
guards when they are provided.
(c) Occupational Diseases. The inclusion of occupational
diseases in compensation laws has been much discussed in
America. It is recognized that numerous diseases are con-
tributed to by the work which a man is doing. Working at
a dusty occupation causes tuberculosis. Employments re-
quiring sudden changes in temperature are instrumental in
bringing about pneumonia and other organic ailments. To
cover all these diseases would, however, make a compensa-
tion law very complex and difficult to administer, and such
disabilities are probably better taken care of under health
insurance. 1 Nevertheless there are some diseases which are
so plainly and directly caused by the nature of the employment
that they should unquestionably be included. Among these
are lead, mercury, and phosphorus poisoning, compressed-air
1 See "Health Insurance," p. 385.
SOCIAL INSURANCE 381
illness, anthrax, and a number of fatigue diseases such as
miners' nystagmus and telegraphers' cramp. Massachusetts
has been paying compensation for such injuries regularly under
its act, and in 1915 the California law was amended to permit
similar payments. In 19 15, also, Pennsylvania amended its
constitution to allow the passage of laws establishing com-
pensation for occupational disease, and a clause to the same
effect was embodied in the proposed new constitution for the
state of New York which failed of adoption.
c. Method of Administration. There are two general ways
of administering compensation laws. One is to appoint a cen-
tral board with general powers of enforcing the law, and the
other is to create no machinery for the administration of the
act, but to provide that all questions arising shall be settled
by the courts. Of the states now having laws, less than a
third, most of which are of little industrial importance, have
no central administrative body and leave the administration
to the courts. All other states have adopted the central ad-
ministrative plan.
Recent investigations made by the National Civic Federa-
tion and the American Federation of Labor, 1 and by the
American Association for Labor Legislation, 2 indicate that the
administrative board plan is much superior to the court pro-
cedure scheme. The two studies agreed in estimating that
in New Jersey not over 60 per cent, of the amounts payable
under the statute were being paid, and the report of the
Association for Labor Legislation made it clear that the court
procedure plan was mainly at fault for this defeat of the
legislative intent. The chief flaws in the court system were
pointed out to be (1) the delay of court procedure, (2) the
cost of court procedure, and (3) the unfitness of the courts
for the settlement of compensation claims.
Prompt, honest, and full compensation, and medical aid as
required, are the vital factors in bringing relief as desired by
the law, and to achieve these purposes a central board with
broad powers is essential. States with central boards having
1 Report upon Operation of State Laws, Senate Document No. 419, 63d
Congress, 2d session. ,,
2 ''"I'hr. se Years under the New Jersey Workmen's Compensation Law,
American Labor Legislation Review, March, 1915, pp. 3l -102 -
38a PRINCIPLES OF LABOR LEGISLATION
full power to make rules and regulations require receipts to
be filed showing actual payment of compensation, and since
they provide for arbitration hearings in cases of dispute there
is little danger of fraud and deception of workmen, and pay-
ments are promptly made. The board should consist of three
or five members appointed by the governor and should have
power to employ necessary assistants. To insure their ade-
quate attention to the responsible duties of their position, its
members should be required to devote their entire time to
its work.
d. Security of Payment. In order to protect the employer,
as well as the workmen, liability under the compensation laws
is commonly carried by an insurance company. Should
several of his men meet with a serious accident at one time,
the small shopowner or contractor would not be financially
able to pay the compensation. For this reason most states
compel employers to insure their risk unless they can give
satisfactory evidence that they are able to bear losses due to
accident even if very serious. This, of course, means that
practically all small employers will carry insurance, while
many large companies will carry their risk themselves.
The carrying by a concern of its own risk is sometimes
called "self -insurance," and in addition thereto three other
methods have been developed: (i) insurance in a state fund;
(2) insurance in a stock company; and (3) insurance in a
mutual or interinsurance company.
State insurance funds have been established in a number
of the more advanced states, including California, New York,
Ohio, Oregon, and Washington. Sometimes, as in Washington
and Oregon, insurance in this fund is compulsory, while other
states permit insurance in authorized private companies.
Short as their experience has been, the success of the efficiently
managed state fund is undoubted. One of the latest of these
to be started, that in New York, found its expenses in its first
six months' experience to be only 17 per cent, of premiums,
and even this low proportion was shortly afterward cut to
12 per cent. Notwithstanding its rates were 20 per cent,
lower than those of the casualty companies, the fund declared
dividends averaging 20 per cent, on its first six months'
business, and estimated that New York employers had saved
SOCIAL INSURANCE 383
half a million dollars by selecting state insurance. At the end
of the first year two of the largest corporations in the state
transferred their insurance to the state fund, and others were
contemplating similar action.
Stock companies carry on business for the profit of their
stockholders. As a consequence of their large business solicit-
ing organization, comprising thousands of agents, their manag-
ing expenses are excessively high. In Wisconsin in 19 14 the
operating expenses of these companies were 38 per cent, of
earned premiums, or 79 per cent, of compensation benefits.
Mutual insurance companies seek the protection of their
own members, who are the policyholders. They do not need
the large, expensive organization which a stock company must
have, and therefore their managing expenses are lower.
Mutual insurance is insurance at actual cost, any excess of
premium remaining the property of the policyholder and being
refunded in the form of dividends. In the state last cited
the operating expenses of these companies were only 18 per
cent, of earned premiums. As a result of these low operating
expenses mutuals can sell insurance at about 25 per cent,
lower rates than stock companies. A strong feature of the
mutual insurance method, provided it be made general and
brought under close supervision as in Germany, is the added
inducement to employers to do their own factory inspection.
Such voluntary inspection, if stimulated by the financial in-
ducement of reduced insurance rates for safer conditions, has
generally been found even more effective than state inspec-
tion.
Intcrinsurance companies, commonly called "exchanges,"
are, like the mutuals, operated purely for the protection of
their members, but are more expensive. They provide in-
surance to a stated amount, and members become liable to
limited assessment, commonly to twice the amount of pre-
miums. The business is transacted through a manager,
called the attorney-in-fact, who receives a fixed percentage of
premiums, commonly 30 per cent., for his services. Besides
this 30 per cent., the subscribers must pay for the expense of
claim adjusting, amounting in the state of Wisconsin to 7 per
cent, during 10 14. Thus, the total cost of operating expenses
was 37 per cent., or over twice that of mutuals, and yet the
384 PRINCIPLES OF LABOR LEGISLATION
members received no greater protection than the mutuals
provide.
Insurance rates are quoted on the basis of $100 wages
paid by the employer. A rate of $4.50 means that for every
Si 00 which the workmen receive in wages, the employer must
pay the insurance carrier $4.50. Rates obviously depend
greatly upon the benefits provided by the compensation act,
and thus we have different rates in the various states. An-
other factor which largely determines the insurance rate is
the hazard of the industry. Thus we have one rate for logging,
one for machine shops, one for breweries, and so on. But
even in establishments of the same industrial group widely
different hazards will be found. One company may perhaps
take great interest in safety work, while another does not.
The former would be a better risk than the latter and is en-
titled to a lower rate. This allowance is accomplished under
a merit rating system. Instead of one flat rate for an entire
industry, this system seeks to adjust the rate of each em-
ployer to the hazard of his particular establishment. A sched-
ule of credits and charges is provided, so that the employer
receives credit for conditions tending to reduce or prevent
accidents, and, conversely, he is charged for conditions con-
ducive to accidents. American experience in accident in-
surance is so limited that rates have heretofore been little
more than estimates. Gradually experience is growing, how-
ever, and with it rates are constantly being reduced.
The feature of accident prevention just alluded to is too
often underestimated when discussing compensation laws.
After all, to prevent the injury is of greater significance than
to provide compensation for it; accident prevention is the
greatest feature of a comprehensive accident indemnity plan.
The accident prevention or safety movement has spread
rapidly in the last few years, and the chief factor in this de-
velopment is the growing correlation between accident pre-
vention and compensation. State agencies are usually effec-
tive in accident prevention work to the degree that they
secure the cooperation of employers and of workmen. Their
main function consists in educating these two in methods of
safety. State agencies can order the application of mechani-
cal safeguards. Their rules afford standards. But their
SOCIAL INSURANCE 385
inspectors can do but little in comparison with what the em-
ployer and employee can do, under the stimulus of an ade-
quate compensation system.
Insurance companies have no power to compel the safe-
guarding of machinery, but they can frequently attain the
same end by increasing or reducing the insurance rates under
the merit rating system previously discussed. Many com-
panies now have a force of inspectors who investigate the risk
before the final rate is computed. During 1914 the amount
expended on factory inspection and accident prevention by
insurance companies in Wisconsin equaled 2.6 per cent, of
the total earned premium. What has been accomplished
through the cooperation of these agencies cannot be determined
because accident statistics in this country have never been
adequately compiled in a comparable manner until recent
years. The indications, however, are that the number of
fatalities and serious injuries is gradually being reduced.
In order to secure more satisfactory industrial accident and
occupational disease statistics for purposes of prevention as
well as for rate making, a number of government bureaus and
interested organizations are now jointly engaged in working
out uniform industry classifications and uniform methods of
reporting. 1 If the classifications agreed upon are finally
adopted in all states, the occupational accident and disease
statistics will be comparable, and a vast amount of valuable
information will then be available.
2. Health Insurance
The development of machinery, the expansion of industry,
and the growth of the wage-earning class have not only brought
into existence the problem of industrial accident, but have
also added importance to the question of the wage-earner's
ill health. Since a large amount of the worker's time and
energy are expended in the workshop, it is natural that in-
dustry and the conditions connected with it are among the
important factors seriously affecting his health. Foresight,
'See "Reporting," pp. 297-304.
25
3 S6 PRINCIPLES OF LABOR LEGISLATION
consequently, has led to the introduction of health insurance,
which is gradually being extended to cover all occupations,
even those in which the risk to health is less obvious.
(/) Early Steps in Health Insurance
The importance of adequate provision in case of illness or
invalidity was recognized by the workers long before the era
of social insurance. As early as the middle ages the insuffi-
ciency of individual action was realized, and a more satis-
factory arrangement, that of insurance, was initiated by
the mediaeval gilds. Under these early plans insurance was
purely voluntary and the workers had to bear the full cost.
This optional unassisted form of health insurance still exists
in many civilized countries. In this country it is provided
to a limited extent by trade unions, fraternal societies, estab-
lishment funds, 1 and insurance companies. It is the only
form of health insurance so far in practice here. But under
optional insurance most workers are either unwilling or unable
to make regular outlays for the premium, and thus are left
without the much-needed insurance protection. Other weak-
nesses frequently charged against the system are inefficiency
of management, inadequacy, lack of state supervision, finan-
cial instability, and, in the case of profit-making insurance
companies, excessive cost.
A remedy for these defects was offered in the device of
government subsidies and control. This measure marked the
beginning of the second stage in the history of health insur-
ance and directly prepared the way for the compulsory prin-
ciple. The aim of government subsidies is to relieve the
worker from a part of the burden and thus to stimulate in-
surance ; the aim of control is to secure efficient management.
Subsidies are usually given to the so-called recognized societies,
that is, health insurance organizations which answer certain
requirements and submit to government regulations.
The system of subsidized insurance was first introduced in
1 Funds organized among the workers in one plant or establishment,
usually under the control of the employer.
SOCIAL INSURANCE 387
Sweden in 1891, and existed in 191 5 in six countries: Sweden,
Denmark, Belgium, France, Iceland, and Switzerland. The
financial assistance granted in these countries and the gov-
ernment supervision, potent though they are, cannot be ex-
pected to be a very vigorous stimulus to insurance among the
classes most in need of it. Obviously compulsory insurance,
transferring a considerable part of the burden to industry and
including in the system those workers who most require this
protection, is a more effective way of meeting the need.
(2) Compulsory Health Insurance
Although Germany was the first country to introduce com-
pulsory health insurance, the principles of this reform had
been previously worked out elsewhere. Long before 1883, the
first date in the official history of social insurance, there
existed in several states of Europe insurance associations in
which the elements of compulsory state supervised insurance
were found. It was left, however, for Germany to gather
these dispersed components into one coordinated unit and
thus to become the fatherland of social insurance. Among
the illustrious thinkers connected with this forward step Bis-
marck occupies a conspicuous place. The " Iron Chancellor"
keenly realized the need of adequate protection of the working
people and recommended to statesmen and legislators that they
accustom themselves to think continually of the workman and
to make his welfare a direct object of national policy. There
was another motive which stimulated Bismarck's interest in
the problem. This was his desire to deter the working class
from Socialism, "to bribe the working classes, or, if you like,
to win them over to regard the state as a social institution
existing for their sake and interested in their welfare." 1
On November 17, 1881, Emperor William I in his celebrated
message to the Reichstag announced his intention of intro-
ducing, among other reforms, a bill for health insurance.
The bill became law in 1883. Besides Germany, compulsory
health insurance existed in 191 5 in Austria, Hungary, Lux-
1 W. H. Dawson, Social Insurance in Germany, 1912, p. 11.
3 88 PRINCIPLES OF LABOR LEGISLATION
emburg, Norway, Servia, Great Britain, Russia, Roumania,
and Holland. In several other countries, including our own,
the principle of health insurance is under consideration and
its adoption in the near future is predicted by close students of
the subject.
The German system was more or less closely followed in the
laws of the other countries. In all of them the existing
mutual sick benefit funds of various kinds, such as fraternal
societies, trade unions, and establishment funds, were al-
lowed to continue business, provided they complied with the
regulations imposed upon them by the new law. In a few
countries, Germany among them, the law also brought into
existence new insurance associations, the local sick funds, for
the insurance of persons not claiming membership in any
other society.
The scope of the law varies slightly in the different countries.
In Germany the law of 1883 was very limited, but subsequent
additions, the latest of which, the insurance consolidation
act, was passed in 191 1, have considerably extended its ap-
plication. At present it embraces practically all industries,
including, (1) workmen, helpers, journeymen, apprentices,
and servants; (2) establishment officials, foremen and other
officials; (3) clerks and apprentices in commercial establish-
ments and pharmacies; (4) actors and musicians; (5) teachers
and tutors; (6) homeworkers; (7) -crews of German vessels.
In groups two to five, inclusive, the law is compulsory only
for those whose annual incomes are less than $595. By this
comprehensive trade grouping just over 14,000,000 workers,
or 22 per cent, of the total population, were insured in 1912. 1
Approximately the same classification is made in Austria; in
Norway all wage-earners are included whose annual earnings
are less than $321 in rural districts, and less than $375 in
urban areas; in Russia the act applies to employees in fac-
tories, mines, iron and railway works, inland navigation
undertakings, and tramways.
The noteworthy act of Great Britain, passed in 191 1, in-
cludes within its scope all manual laborers between sixteen
and seventy. Persons not employed at manual labor, such
x " Social Insurance in Germany in 1912," Board of Trade Labour
Gazette, July, 19 14.
SOCIAL INSURANCE 380
as clerks and agents, are compelled to insure if their earnings
are less than $800 a year. Credit should be given to the legis-
lators and administrators who found it possible to include from
the outset both casual workers and homeworkers, even though
this necessitated special arrangements for collecting contri-
butions. Within the insured groups, persons may be exempted
if they can prove that they have a regular income from
other sources equal to $130 a year, or that they are not de-
pendent for a livelihood upon the earnings of their insured
occupation. In addition, certain classes of occupations are
excluded, such as employment under the crown, because the
terms of employment already offer provision in case of ill-
ness. The exceptions have proven numerically unimportant,
so that during the first year of operation 13,742,000 individ-
uals were insured, or nearly 30 per cent, of the total popula-
tion. 1
The cost of insurance is usually distributed between the
worker and the employer, and in some countries the govern-
ment also contributes a share. By this device the employer
is compelled to bear some portion of the cost of sickness among
his employees, and the worker receives larger benefits than he
could purchase unaided. In Germany the worker pays two-
thirds of the premium and the employer the remaining third.
The same proportion has been adopted in Austria and in
Russia, with the exception that here the employer also pays
the cost of medical attendance. In Norway the worker con-
tributes six-tenths, the employer one-tenth, the commune
one-tenth, and the state the remaining two-tenths. In Ger-
many, Austria, Hungary, and Norway the premium is cal-
culated as a percentage of wages. The employees are divided
into wage groups, and the premiums and benefits vary with
an increase in the worker's income. Great Britain, however,
has not followed the continental practice, but has adopted a
uniform rate of contributions, regardless of wage differences.
The insured male worker pays weekly 8 cents, the female
worker 6 cents; in either case the employer adds 6 cents and
the state 4 cents. To mitigate the hardship of the low paid
1 For an excellent study of the actual operation of the British act and
of its administrative problems, see The New Statesman, "Special Supple-
ment on the Working of the Insurance Act," March 14, 1914-
3Q0 PRIN( ll'LES OF LABOR LEGISLATION
worker, special rates arc provided for those earning less than
62>2 cents a day, whereby the worker's contribution is dimin-
ished, and that of the employer and state increased.
In return for their contributions, workers usually receive
both a money benefit and medical care. The cash benefits
paid in time of sickness are not equal to the full wage, but
are 50 per cent, in Germany, and 60 per cent, in Norway.
England has been consistent with her flat rate contributions
and has adopted a system of uniform benefits of $2.50 a week
for men, and $1.87 a week for women. In general, benefit
is not allowed for the first three days of illness, and is paid for
only a limited number of weeks in a year — in Germany and
England twenty-six. Benefit is usually made conditional
upon a doctor's certificate stating that the applicant is in-
capable of work. When the attending physician certifies
that the patient has recovered, sick benefit ceases.
The German and British acts differ in the character of the
disabilities which they include. Germany, in common with
Sweden and the proposed Norwegian scheme, has included
"invalidity" — chronic illness or impairment of earning ca-
pacity—in the old age insurance act, so that only temporary
illnesses are covered by the health insurance act. Great
Britain, on the other hand, has included "invalidity" in the
provision for health insurance. The invalidity contemplated
by the British legislators, however, is limited to incapacity
for work because of disease or disablement, as distinguished
from reduction in earning power. The British grouping of in-
validity with sickness benefit is probably due to the existence
of a state system of old age pensions. As the recipients do
not contribute to the pension, it was desirable to make pro-
vision for invalidity in the health insurance system, which
is contributory. The British invalidity benefit consists of a
weekly payment of $1.25 as long as incapacity for work con-
tinues, though it ceases when the beneficiary reaches the age
of seventy and becomes entitled to an old age pension.
Medical attendance is furnished by many insurance systems,
including those of Germany, Great Britain, and Norway. If
an insurance system is to accomplish its ultimate object of
improving the health of the workers, it is of great importance
that they receive treatment whereby they may be restored to
SOCIAL INSURANCE 391
health. Furthermore, it is financially important to the in-
surance funds that sick members shall recover as quickly as
possible and so reduce the amounts expended upon sick
benefit.
In Germany each society makes its own arrangements for
medical attendance, usually by means of a contract open to
all qualified physicians, with payment by some form of
capitation fee. 1 Members are then free to select, with some
restrictions, any one of the contract or panel doctors. The
provision is generally liberal, the funds arranging for the ser-
vices of specialists and hospital care when necessary. In
Great Britain, where the medical service is less efficient, ar-
rangements with the doctors are made not by the "approved
societies," but by local insurance committees. This method
secures fairly uniform conditions of service and rates of pay
throughout the kingdom. Insured persons have unrestricted
choice of panel doctors practising in their neighborhoods.
The system of capitation payments as adopted in England
had led to the charge of hasty and inadequate diagnosis, es-
pecially when there is an inefficient system of "control" of
doctors, which is not comparable to the control exercised in
Germany by the funds employing a doctor. A wholly satis-
factory solution of the relation of the medical profession to
insurance has not yet been found, for in Norway, where the
doctors are paid by the visit, a new problem arises. Here
the alleged tendency is for doctors to make unnecessary visits,
thereby increasing their own incomes at the expense of the
provision for medical care.
Drugs and appliances, such as spectacles, trusses, and
crutches, are usually provided as a part of medical benefit.
The provision in Germany is particularly generous.
In the organization of the carriers of insurance each coun-
try has adapted itself to existing conditions. Germany found
already in existence mutual aid funds and an effective system
of compulsory insurance among miners. The former it al-
lowed to serve as a substitute for compulsory insurance,
providing that employers might be exempted from contrib-
uting for workers so insured; it also permitted establish-
1 1. G. Gibbon, Medical Benefit in Germany and Denmark, 1912, p. 54.
3Q2 PRINCIPLES OF LABOR LEGISLATION
ment funds, under certain conditions, to carry the insurance.
The system was, however, based in the main on self-governing
local mutuals, organized by the law, which it has been the
policy to encourage, so that they are now overwhelmingly
predominant.
Great Britain built its insurance system around the volun-
tary friendly societies, utilizing their organization and per-
mitting them to establish separate sections for national in-
surance. Accordingly many societies have both a "private"
and a "state" section. In contrast to the German method,
the insured are not grouped according to trade or locality,
but are given unrestricted choice of society. As a result
of this freedom, the members of some of the large societies
are distributed throughout the kingdom, and through vari-
ous industries. Segregation by locality, and in some large
cities by trade, as carried on in Germany has many practical
and technical advantages, such as more precise distribution
of the risk and greater ease of administration.
The methods of establishing security of payments in the
two countries are quite different. In Germany the dues are
calculated so as to cover the current expenditure on benefits
and to accumulate a small reserve fund. It is, however, a
recognized fact that sickness increases with age and that any
voluntary fund organized on this basis would be compelled
to increase its dues as the members advanced in years in
order to cover the increasing costs — unless the fund is able
to attract a sufficient number of young lives. These younger
members, paying the same dues as the older members, do
not claim the same amount of sick benefit, hence from their
contributions a surplus would accrue which could be devoted
to making up the deficit caused by the older members. This
system is practicable in Germany, since each local or trade
society is practically assured of a due proportion of young
lives which will pay for the older members.
In Great Britain the contributions are calculated so that the
surplus accumulated during the early life of each worker may
be applied for his own benefit in later years. That is, con-
tributions are not calculated on the simple basis of covering
expenditures, but upon the basis of covering the estimated
liability for the average person throughout life. This involves
SOCIAL INSURANCE 393
the accumulation of an "actuarial reserve" for each insured
person. This method, resulting in complex financial prob-
lems, is not considered as satisfactory as the German method.
(3) Maternity Insurance
An important part of health insurance laws is the payment
of maternity benefits to insured women, usually irrespective
of marital condition, and in some countries, such as Great
Britain, Russia, and Roumania, also to uninsured wives
of insured men. In Germany a maternity benefit equiv-
alent in amount to sick benefit is paid for eight weeks, six of
which must be after delivery. With the consent of the
woman the fund may in place of maternity benefit provide
medical treatment and maintenance in a hospital; or treat-
ment at home may be given, for which the fund may deduct
not more than half of the maternity benefit. The funds are
also allowed to provide for a pregnancy and a nursing bene-
fit. In Norway, Hungary, and Russia the regular sick benefit
is paid for six weeks, in Austria for four weeks. Usually the
benefits received by uninsured wives of insured men are
smaller than those payable to women who are themselves
members of the funds.
In some cases the benefit is paid in a lump sum instead of
in weekly instalments. Great Britain, for instance, allows
the sum of $7.20 to all insured women, and $7. 20 to wives of
insured men, making a total of $14.40 for the insured wife of
an insured man. An interesting exception to the general plan
of including maternity benefit in the health insurance system
occurs in Italy. There the problem was considered so urgent
that even in the absence of a general compulsory health in-
surance measure a compulsory scheme of maternity insur-
ance was introduced in 19 10. All wage-earning women be-
tween fifteen and fifty years of age are included, and annual
premiums of 19.3 cents for women between fifteen and twenty
and 38.6 cents for women of all other ages are divided equally
between the employer and the worker. The benefit is a lump
sum of $7.72, of which the state contributes one-quarter.
Although in this country four states, beginning with Massa-
394 PRINCIPLES OF LABOR LEGISLATION
chusetts in 191 2, prohibit the industrial employment of women
for a period of several weeks immediately before and after
childbirth, 1 no American state has yet recognized the justice
and necessity of furnishing maternity benefits during such
periods of enforced idleness. If insurance is to accomplish
its object of conserving the health and life of a nation, it is
desirable that maternity benefits be extended as widely as
possible.
(4) Need in the United States
It is sometimes urged that in this country, with its expand-
ing industries and higher level of wages, such measures as
compulsory health insurance are unnecessary. But those who
know the facts recognize that illness is a cause of destitution
here as it is in England and in Germany. The reports of the
New York State Board of Charities show that in 19 10 nearly
one-third of the 300,000 applicants were driven by sickness
to ask for relief. 2 The records of the Charity Organization
Society in New York City show that ill health is directly or
indirectly responsible for three-quarters of the applications
for aid which come to it. 3
These figures are sufficient to suggest that sickness in a wage-
earner's family means privation. Unfortunately, there are
no statistics showing the amount of sickness among the Ameri-
can working class ; such figures are available only for European
countries which have had compulsory insurance in operation.
On the basis of European figures it is estimated that about
40 per cent, of the workers of this country suffer from illness
every year, and that the total time lost through this cause,
distributed over the entire industrial population, averages
about nine days per person. Upon this basis, the loss in
wages, the medical cost, and the loss to the employer total
nearly $750,000,000 annually, most of which falls upon the em-
ployees. 4 A just compulsory insurance measure would enable
!See "Childbirth Protection," p. 319.
* Rubinow, Social Insurance, p. 205.
3 Edward T. Devine, Misery and Its Causes, 1909, pp. 225-230.
4 "Memorial on Occupational Diseases," prepared by a committee
of the American Association for Labor Legislation, American Labor Legis-
lation Review, January, 191 1, p. 127.
SOCIAL INSURANCE 395
the workers to bear the loss of wages more easily, and would
distribute more equitably the cost of sickness among the
workers, the employers, and the state.
After many conferences, at which all sides of the problem
were thoroughly discussed, the American Association for Labor
Legislation formulated in the summer of 19 14 the following
tentative standards which it later followed in the drafting
of a health insurance bill for introduction in the state leg-
islatures: 1
1. To be effective health insurance should be compulsory, on the
basis of joint contributions of employer, employee, and the state.
2. The compulsory insurance should include all wage workers earning
less than a given annual sum, where employed with sufficient regularity
to make it practicable to compute and collect assessments. Casual and
home workers should, as far as practicable, be included within the plan
and scope of a compulsory system.
3. There should be a voluntary supplementary system for groups of
persons (wage workers or others) who for practical reasons are kept out
of the compulsory system.
4. Health insurance should provide for a specified period only, pro-
visionally set at twenty-six weeks (one-half a year), but a system of in-
validity insurance should be combined with health insurance so that all
disability due to disease will be taken care of in one law, although the
funds should be separate.
5. Health insurance on the compulsory plan should be carried by-
mutual local funds jointly managed by employers and employees under
public supervision. In large cities such locals may be organized by
trades with a federated bureau for the medical relief. Establishment
funds and existing mutual sick funds may be permitted to carry the
insurance where their existence does not injure the local funds, but
they must be under strict government supervision.
6. Invalidity insurance should be carried by funds covering a larger
geographical area comprising the districts of a number of local health
insurance funds. The administration of the invalidity fund should be
intimately associated with that of the local health funds and on a repre-
sentative basis.
7. Both health and invalidity insurance should include medical ser-
vice, supplies, necessary nursing, and hospital care. Such provision
should be thoroughly adequate, but its organization may be left to the
local societies under strict governmental control.
8. Cash benefits should be provided by both invalidity and health
insurance for the insured or his dependents during such disability.
1 American Association for Labor Legislation, Health Insurance;
Standards and Tentative Draft of an Act, 191 5, pp. 5, 6.
39 6 PRINCIPLES OF LABOR LEGISLATION
9. It is highly desirable that prevention may be emphasized so that the
introduction of a compulsory health and invalidity insurance system
shall lead to a campaign of health conservation similar to the safety
movement resulting from workmen's compensation.
In addition to the relief value of such a measure, it contains,
as indicated in the closing paragraph of the standards, impor-
tant possibilities for the prevention of illness. After a century
of rapid industrial growth and increasing urban population
we are just beginning to value as a social factor the sanitation
which drains cities, provides pure water and pure milk, and
quarantines infectious diseases. We have too long failed to
realize that the ill health of the individual, even though he
may not be suffering from a contagious disease, is a matter
of public concern. Medical care of adults is no less important
for a state which values the lives of its citizens than is the
medical examination of school children which we have already
adopted in the larger cities.
More general medical consultation will reveal unsuspected
tendencies which, if allowed to develop, will have as pernicious
effects as the adenoids we are so careful to remove from school
children. Here, as in England, there are many wage-earners
who are unable to afford a doctor's fee. Nor is the dispensary
service given in the large cities sufficient to meet the need.
A socialized medical service, whereby all who require the ser-
vices of a physician may have access to the necessary treat-
ment, has been found very effective in some countries. Great
Britain's health insurance act has revealed a mass of human
suffering, especially among women, which hitherto had re-
ceived no medical attention. Because of the increased use of
doctors, a far larger number of persons have been discovered
who need operations and hospital car*; — persons whose ills
previously would have gone without treatment until the suf-
fering had become acute and the chances of recovery had
been diminished. Socialized medical service, especially in
Germany, has resulted in prophylactic treatment for the
individual and in the conservation of national vitality.
Great Britain's health insurance act has been an incentive
for undertaking a national campaign against tuberculosis.
By means of a sanatorium benefit for every insured worker
suffering from this disease, more adequate treatment is being
SOCIAL INSURANCE 397
provided. In Germany, particularly, the health insurance
law has been an important factor in the anti-tuberculosis
campaign. German authorities even attribute "the progress
which has been made in the crusade against tuberculosis more
to the industrial insurance laws than to any other cause,
owing to the fact that those laws have placed within the reach
of the working classes resources of healing which were never
dreamt of before." 1
Furthermore, the necessity of spending money on prevent-
able disease is in itself a stimulus to prevention. Various Eng-
lish bodies have been aroused by this factor to a keen interest
in the relation between tuberculosis and housing. The finan-
cial pressure on "approved societies" is a direct inducement
to demand thorough inspection of dwellings and workplaces,
especially since the delinquent authority can be made to pay
the cost of the sickness produced by the poor sanitary condi-
tions which it has allowed to exist.
It is also possible, as is done in Germany, to levy a higher
premium upon the industry or particular establishment in
which the sickness rate is higher than normal. This is a
means tending to persuade the employer of the economy of
factory sanitation which will improve the health of the worker
and thereby reduce his insurance premium. It is the same
inducement of low insurance premiums for workmen's com-
pensation which is partially responsible for the "Safety first"
movement and the installation of safety appliances. With-
out a compulsory health insurance system, the economy of
health preservation cannot be made an effective lever for
reform.
3. Old Age and Invalidity Insurance
The rapid development of industry has, among its other
results, placed emphasis on the individual's physical vigor and
wage-earning capacity. It has deprived old age of the esteem
bestowed upon it under more primitive patriarchal conditions,
and after a life of productive toil it relegates to the back-
ground the aged or incapacitated man as a useless, uneconomic
1 Dawson, Social Insurance in Germany^ p. 202.
3q8 PRINCIPLES OF LABOR LEGISLATION
factor. Failing health, inability to find employment, lack
of means, often absence of friends willing or able to help him
— such is the prospect which confronts, in the great majority
of cases, the aged worker.
(/) Unassisted Old Age Insurance
In response to the gravity of this situation three main
measures of relief have been developed: charity, saving, and
insurance. Charity has been known since ancient times, and
no doubt has relieved a deal of destitution. But the modern
opinion is that charity, both private and public, is insufficient
in amount and unsatisfactory in quality; that it exercises a
degrading effect upon the recipient and is repugnant to the
self-respecting person. The serious difficulties in the way of
saving are also well known. The low standard of wages sel-
dom, if ever, allows any surplus; most often the immediate
demands outweigh the arguments in favor of saving. Be-
sides, the very remoteness of old age and the uncertainty of
attaining it discourage many people from making preparation
for the future at the expense of the present. In this problem,
as in that of provision for illness, the collective process of
insurance is considered much more satisfactory than the in-
dividualistic method of savings. Professor Seager has said
that "for every wage-earner to attempt to save enough to
provide for his old age is needlessly costly. The intelligent
course for him is to combine with other wage-earners to ac-
cumulate a common fund out of which old age annuities may
be paid to those who live long enough to need them." 1
The development of old age and invalidity insurance is
similar to that of health insurance. The first stage in the
movement was marked by optional unassisted insurance,
which is still furnished by some fraternal societies, trade
unions, establishment funds, and insurance companies. How-
ever, the number of fraternal societies and trade unions,
either here or abroad, which undertake the complicated busi-
ness of old age and invalidity insurance is small. In many
1 Henry R. Seager, Social Insurance, 1910, pp. 118, 119.
SOCIAL INSURANCE 399
states of this country fraternal societies are prohibited from
dealing in it. Only forty-two out of 182 general or national
fraternal benefit societies in the United States promise old
age benefits, and these usually do not begin until the age of
seventy has been reached. 1 As to American trade unions, out
of the approximately no national organizations four are
known to pay a superannuation benefit. These are the Inter-
national Typographical Union, the Granite Cutters' Inter-
national Association, the Amalgamated Society of Carpen-
ters and Joiners, and the Amalgamated Society of Engineers,
the last two being branches of English unions. In a few other
unions the introduction of this form of insurance is being con-
sidered, and in some old age benefits are paid by individual
locals. Nineteen unions, 2 the majority of which consist of
transportation workers, pay a permanent disability benefit.
Business concerns furnishing old age insurance for their em-
ployees are also rare, especially in this country, as are those
granting straight old age pensions. Insurance companies do
a considerable old age annuity business in Europe, chiefly
among the middle class; in the United States, on the con-
trary, commercial insurance for old age is little known.
(2) Assisted State Plans
Obviously, voluntary unassisted old age insurance reaches
only a small part of the wage-earners. As a consequence, as
in the other branches of social insurance, it came to be con-
sidered the duty of the state to assist its aged citizens, and the
principle of state insurance, sometimes aided by subventions,
was devised.
This form of voluntary old age insurance is known in France,
Belgium, England, Italy, and Spain, and in America in the
states of Massachusetts and Wisconsin, and in Canada.
France, Belgium, Italy, and Spain grant subventions in the
form of a substantial rate of interest, and to certain classes
1 Lee W. Squier, Old Age Dependency in the United States, 1912, p. 67.
2 United States Commissioner of Labor, Twenty-third Annual Report,
"Workmen's Insurance and Benefit Funds in the United States," 1908,
P- 3i-
4 oo PRINCIPLES OF LABOR LEGISLATION
of insured direct subsidies are given. The state also fur-
nishes the administrative machinery and running expenses.
The Massachusetts plan is a system of voluntary old age in-
surance through the savings banks under state supervision,
while the Wisconsin system provides for the issuance of an-
nuities by the state life fund under the supervision of the in-
surance commissioner.
But even state assistance and supervision failed to secure
for old age and invalidity insurance any large measure of
popular acceptance. Experts commonly agree that even gen-
erous subsidies do not seem to attract more than a small
part of the wage-earners; that in a large number of cases the
payments are either made irregularly or are after a while sus-
pended, and that the benefits paid are very small.
In view of the insufficiency of state control and subsidy,
two other very significant elements of social insurance were
added, namely, compulsion and the requirement of the em-
ployer's contribution.
(j) Compulsory Systems
Compulsory old age and invalidity insurance have not yet
found so wide an application as has compulsory health in-
surance, being established at present in only the six countries
of Germany, Luxemburg, France, Roumania, Sweden, and
Holland. Here again, as in the two previously discussed
branches of social insurance, Germany took the lead, enacting
its first law in 1889. All wage-earners in the designated oc-
cupational groups, regardless of size of income, are compelled
to insure between the ages of eighteen and seventy, after which
exemption from insurance may be granted on application.
The groups covered are the same as those under health in-
surance, 1 except that of the homeworkers only tobacco and
textile operatives are as yet included. Salaried workers re-
ceiving more than $476 a year are not required to insure, but
may, in common with other classes, take out voluntary in-
surance. Contributions are of five grades, ranging from 4
l See "Health Insurance," p. 388.
SOCIAL INSURANCE 401
cents to n>£ cents a week according to the worker's income,
and are paid in equal parts by employer and employee. The
pensions also are divided into five groups, corresponding to the
five grades of contributions. The state's contribution is made
in a novel way, consisting in the payment of $11.90 annually
to each person in receipt of a pension. Thus the total bene-
fits range from $26.18 to $54.74 a year — an allowance which
obviously cannot go very far even with a low standard of
living. A necessary condition for receiving a pension is the
payment of contributions for not less than 1,200 weeks.
To meet the need of persons who were already of advanced
age, transitory provisions were introduced, reducing the re-
quired 1,200 weeks' payments by forty for each year of age
over forty when the law went into effect.
In the German law provisions for old age are subsidiary to
those for invalidity insurance. An insured person of any
age, who on account of diminished strength is unable to earn
one-third of the wages usually paid to normal workers in his
occupation, is entitled to an invalidity pension. The benefits
are larger than the old age benefits, and this, together with the
fact that they are paid irrespective of age, tempers the hard-
ship which would otherwise result from the high age of seventy
necessary for eligibility to a pension for superannuation. In
fact, in 1908, 894,000 persons were in receipt of invalidity pen-
sions as against 102,000 who were drawing old age pensions,
or nearly nine times as many. 1 The government has always
met requests for a reduction of the seventy-year limit with
refusal because the law regards the old age feature as a minor
matter, and has stated that any additional expenditures should
be devoted to enlarging the invalidity benefits.
For the purposes of this insurance the empire is divided
into large districts for each of which is created an insurance
institute, under the direct supervision of the imperial insur-
ance office. Each institute is managed by a board of di-
rectors, in part appointed by a public authority, in part chosen
equally from employers and employees by the committee,
itself an elective body composed of equal numbers of em-
ployers and employees, with supervisory duties. While far
1 Rubinow, Social Insurance, p. 359.
26
4 o2 PRINCIPLES OF LABOR LEGISLATION
more bureaucratic than the sickness funds, the administration
of the institutes is still largely supervised by the persons
affected as contributors and beneficiaries.
Two unique points in the German old age invalidity insur-
ance system are sickness pensions and sanatorium treatment.
Sickness benefits, equivalent in amount to invalidity benefits,
are paid to persons, not permanently incapacitated, who have
exhausted their claims to sick pay and are still unable to
work. However, it is entirely apart from cash payments,
and in the realm of prevention, that the most significant fea-
ture of the whole German social insurance plan is to be
found. Under the local pension boards is maintained a
country-wide network of sanatoria, rest homes, and health
resorts. Persons who have drawn all their sick benefits but
who are still unable to work are entitled to maintenance in
these institutions, and the timely and efficient care there
furnished to the patients has proven a powerful factor in the
prevention of invalidity.
Other compulsory old age insurance laws do not, on the
whole, differ much from the German plan. The conditions
for the receipt of invalidity pensions, however, are much
stricter in the other countries than they are in Germany;
only persons completely unable to earn a living are entitled
to benefits. Another point of difference is the rather unusual
application of the Swedish law, which is extended to "every
Swedish man or woman." It is also worthy of remark that
in none of these countries has even an attempt been made to
emulate the admirable German methods of invalidity pre-
vention.
(4) Straight Pensions
Another much discussed method of meeting the problem
of old age poverty is that of "straight," or non-contributory,
pensions. Such pensions, their opponents charge, tend to
keep wages at a low level, destroy the habit of thrift, and
have an injurious effect on family solidarity. As for the
last argument, it is difficult to see how the parents' depend-
ence can add to the filial affection of the struggling wage-
earner. The habit of thrift, also, can hardly be destroyed
SOCIAL INSURANCE 403
by the remote and uncertain possibility of attaining old age
with a pension which is hardly sufficient to keep body and
soul together. With regard to the possible effect on wages,
the persons in receipt of old age pensions are a very unim-
portant factor in the labor market, and as to the workingmen
who have not yet reached pensionable years it is doubtful
whether the prospect of a very meager assistance in their old
age would alone be sufficient to make them accept lower wages.
Some champions of social insurance also object to straight
pensions on the apparently more valid ground that the straight
grant resembles charity and is, therefore, less desirable than
a system by which the worker is asked to contribute.
Straight old age pensions are granted sometimes to all
persons meeting certain personal requirements, and sometimes
for the performance of a definite period of service. Six
countries — Denmark, New Zealand, Belgium (temporarily),
France, Australia, and Great Britain — and Alaska and Arizo-
na 1 in the United States, had by 191 5 enacted legislation
providing such aid to all persons possessing certain moral,
economic, or civil qualifications. Under most of these laws a
definite period both of residence and of citizenship is a prereq-
uisite. New Zealand demands twenty-five years', Australia
twenty, Great Britain twelve, Alaska ten, and Arizona five
years' residence, while in Belgium one year is sufficient. In
Australia the applicant must have been a citizen three years,
in Arizona five years, and in Great Britain twenty years.
All but the French and the two American acts embody a
number of moral qualifications. Family desertion, neglect
of children under fourteen years, drunkenness, and a prison
sentence are some of the grounds which disqualify an appli-
cant either permanently or temporarily from receiving an old
age pension. The requirements as to the economic status
of the pensioner also vary widely. In Australia an income of
$300 a year debars one from receiving an old age pension;
much less liberal are the provisions in the other countries.
In France an income of $92.64 is the highest allowed, while
in Denmark it is but $26.80. Similar regulations exist with
regard to the amount of property owned. The grants are
1 In NcA'cmber, 191 5, this act had been held unconstitutional by the
superior court, and was on appeal before the supreme court of the state.
4 o 4 PRINCIPLES OF LABOR LEGISLATION
far from generous. In Great Britain the pension ranges
from 24 cents to $1.22 a week, varying inversely with the
amount of income received from other sources, and in Alaska
the maximum is set at $12.50 a month. In other countries
no definite level of pensions is established by law, and the
local authorities are permitted to exercise their judgment in
the individual cases.
Pensions for service are granted both by governments and
by private employers. In this country pensions are provided
by the federal, state, and municipal governments for several
classes of employees, especially policemen, firemen, and
teachers. The necessity of pensions for all civilian employees
is now frequently urged not only as a matter of justice to the
employee, but also as a means of retiring the older workers
and thus increasing the efficiency of the force. The federal
government has also established pensions in the army and
navy, with particular generosity toward civil war veterans.
In several European countries, furthermore, workers in the
government owned industries are granted pensions, as for
example, in the tobacco works of Italy and France and in the
Russian liquor monopoly. Finally pensions are granted to
their employees by some private concerns. Establishment
pension funds exist practically in every country of industrial
prominence, but in the United States their number is relatively
small. The transportation industry can boast of the largest
number, there being at least eighteen steam railroads with
such pension systems, as well as several electric street rail-
ways and a few steamship lines. The number of manufac-
turing establishments granting pensions is much smaller.
The social value of these provisions is almost negligible, first,
because of their small number, and second, because of their
defects, some of which are arbitrariness on the part of the
employer, lack of certainty as to the receipt of the pension,
and their injurious effect on the independence and mobility
of labor.
(5) The Problem in the United States
Clearly the total results accomplished by all these organiza-
tions are of little or no consequence , ''Strange as it may
SOCIAL INSURANCE 405
seem," declares a leading American authority, "the United
States is the only great industrial nation in the civilized world
that has not already attempted a practical and permanent
solution of this problem of old age and dependency." 1 This
neglect of the problem of old age poverty cannot, however,
be explained by the absence of conditions calling for attention.
On the basis of an investigation of old age poverty made in
Massachusetts by a special commission on old age pensions
of that state, it is estimated that "approximately 1,250,000
of the people of the United States above sixty-five years of
age are dependent upon public and private charity, to the
amount of about $250,000,000 annually. Thus far one person
in eighteen of our wage-earners reaches the age of sixty-five in
penury; and the indications are that the proportion of in-
digent old is increasing." 2
But this admittedly conservative estimate can hardly give
a correct conception of the extent of old age poverty. The age
of sixty-five is somewhat high, as the exhausting effect of in-
dustry on the worker and the well-known prejudice against
the employment of older men throws out of industry a large
number of people before that age. If we include also the
number of invalids of all ages, the quoted figures will be far
too low. Existing arrangements for the care of old age do
not affect more than one-third of the wage-earners; of the
remaining two-thirds, those who grow old without having
saved enough to support them must resort to charity, either
of their children and families or of some organized agency.
The dependence of large numbers of people on such an un-
certain, insufficient, and morally degrading method of relief
as charity is a grave injustice to the toiling wage-earner and
a serious menace to the community.
This failure of the United States to provide an organized
policy for the protection of its citizens at the close of their
life of productive work appears the more striking when we
see that eleven European countries, together with Canada,
Australia, and New Zealand, have enacted national measures,
either in the form of insurance or straight pensions, for the
solution of this problem.
1 Squicr, Old Age Dependency in the United States, p. 325.
2 Ibid., p. 324.
4 o6 PRINCIPLES OF LABOR LEGISLATION
4. Widows' and Orphans' Insurance
Insurance for the protection of widows and orphans, or,
as it is ordinarily called, life insurance, is furnished by prac-
tically all fraternal societies, many trade unions, some estab-
lishment funds, and by private life insurance companies. In
some countries, such as Great Britain, France, Italy, Russia,
and Canada, the government has undertaken the business of
life insurance; in the United States we have state life in-
surance in Wisconsin, and in Massachusetts there is a system
of life insurance administered by savings banks under state
supervision.
(1) Voluntary Life Insurance
Life insurance, sometimes for enormous amounts and paid
for by annual or quarterly contributions or premiums, is now
a well-established method of providing for the future among
the moderately well to do and the wealthy. But in order
to bring the poorly paid wage-earner under the system, a
special form of life insurance had to be devised, known as
"industrial" or "prudential" insurance as opposed to the
"ordinary" type. Under industrial insurance the policy
amounts are much smaller, usually providing only for the
burial of the insured, and to facilitate payment premiums are
collected weekly, by a vast army of agents. 1 This method
of collection, however, results in the increase of administra-
tive expenses and, consequently, in higher rates. Another
cause of higher rates in industrial insurance is the assumption
of a higher death rate among wage-earners. Thus even in
purchasing decent burial the wage-earner is obliged to pay a
higher rate of insurance than does his more prosperous neigh-
bor.
State insurance, as well as insurance furnished by fraternal
societies, trade unions, establishment funds, and mutual
assessment societies, is less expensive but still outside of the
reach of many working people. Moreover, because the in-
1 The 1910 Census gives the total number of insurance agents in the
country as 88,463. Not all of these, of course, deal in industrial insur-
ance.
SOCIAL INSURANCE 407
surance is voluntary, the very families most in need of pro-
tection are often left without it. These defects, as in the
other branches of social insurance, have led to the introduction
of the compulsory principle.
(2) Compulsory Insurance
Compulsory widows' and orphans' insurance, the newest
branch of social insurance, is so far practically in operation
in only two countries, France and Germany.
In France the compulsory old age insurance law of 19 10
provides for benefits to widows and orphans of the insured.
The total benefits vary from $29 to $58 according to the
number of dependents, and are paid in monthly instalments
of $9.65 until the entire amount has been paid.
In the following year, 191 1, the German law was passed.
As in France, benefits are furnished to certain survivors of
those carrying old age and invalidity insurance. The amount
of the pension depends on the amount of invalidity pension
to which the insured was entitled. The widow, but only if
she is herself an invalid, receives 30 per cent, of the invalidity
pension to which her husband was entitled. Only children
under fifteen are eligible for pensions, the amount being 15
per cent, for the first child and 2]/ 2 per cent, for each of the
others. In addition, the state annually pays the widow $1 1 .90
for herself and $5.95 for each child. The cost is met by an
increase of the premiums for old age and invalidity insurance.
This increase varies for the five different wage-groups estab-
lished for that type of insurance, and runs from K cent to
nearly 3 cents a week, equal shares of this amount being con-
tributed by the employer and the employee. It has been
estimated that the average annual pension of a widow with
three children is $37,* a sum which cannot be considered as
substantial. An increase in the amount of benefits paid in
this and in other branches of social insurance is urged as the
next step in the development of the system.
In a third country, Holland, the old age and invalidity in-
1 Rubinow, Social Insurance, p. 434.
4 o8 PRINCIPLES OF LABOR LEGISLATION
surance law of 19 13 allows benefits to the orphans of men or
women who carried old age and invalidity insurance. These
benefits depend on the amount of the parent's pension; they
are paid to the orphans until of the age of thirteen and only
when the father was already receiving a disability pension or
if forty weekly contributions were credited to him. The
same limitations hold true in the case of death of an insured
widow.
In Austria the compulsory old age and invalidity law of 1 906
provides for pensions to the widows and orphans of the in-
sured. But this law applies only to salaried employees, and is,
therefore, of relatively small importance.
(3) Mothers' Pensions
A more popular method of dealing with the problem of
widowhood and orphanhood is by means of mothers' or wid-
ows' pensions, paid to certain classes of mothers with de-
pendent children. These pensions, however, are straight
grants by the state. " Such systems exist in several European
countries, in New Zealand, and in a number of American
states.
The movement in this country is particularly interesting.
Here the pressing problem of widows' and orphans' poverty
and helplessness has, instead of giving rise to social insurance
measures, resulted in a sudden wave of legislation providing
straight pensions, usually upon condition that the mother
is found capable of providing a proper home for her child.
Indeed, a leading argument in behalf of this legislation is
that it is better to pay the mother for taking care of her child
than to expend the same amount in financing institutions, in
even the best of which the death rate is abnormally high. In
the five years 1911-1915 nearly thirty American states enacted
such laws. The surprising rapidity with which this provision
has gained recognition in American legislatures is a significant
indication both of the great need of public action and of the
growing conception of the state as having a duty toward its
citizens, two of the underlying ideas of social insurance.
SOCIAL INSURANCE 409
5. Unemployment Insurance
Finally, the destitution due to unemployment, until recent-
ly considered a matter of purely individual concern, or at best
as an occasion for charitable activity, is now beginning to be
recognized as an evil which must be met by the coordinated
forethought of society as a whole. The demoralization of
individuals and communities by prolonged and widespread
deprivation of income due to involuntary idleness, it is now
rather generally agreed, should no longer be allowed to con-
tinue unchecked.
(z) Voluntary Out-of-Work Benefits
In warding off the financial hardships of unemployment,
individual action and charity have been found just as inade-
quate as they were in protecting against the financial hard-
ships due to accident, ill health, or old age. Here again the
collective method of insurance has demonstrated its su-
periority. Unemployment insurance originated among labor
organizations, and at first the cost of this insurance was borne
by the workers themselves without any outside assistance.
This form of unemployment insurance has achieved a con-
siderable success in the important European countries. In
the United States, on the contrary, only a few unions are
known to pay out-of-work benefits. Of the no national
organizations affiliated with the American Federation of Labor
the Cigar Makers' Union alone is known to have a national
system of unemployment insurance. Two other important
unions which pay out-of-work benefits, the Amalgamated
Society of Carpenters and the Amalgamated Society of En-
gineers, are both branches of British organizations. In a
number of national unions only certain locals are paying such
benefits; several unions pay a traveling benefit; others limit
themselves to excusing their unemployed members from the
payment of dues.
In addition to trade unions, fraternal societies in some
countries pay a regular out-of-work benefit. One country,
Germany, furnishes an interesting example of a different way
4 io PRINCIPLES OF LABOR LEGISLATION
of meeting a part of the unemployment insurance problem,
namely, through funds established by some employers for their
own employees.
(2) The Ghent System
Unassisted trade union unemployment insurance, however,
with the cost borne by the workers alone, is a heavy burden
on them and only a comparatively small part of the workers
are able or willing to insure. In order to encourage insurance,
a plan was devised by which government, most often munici-
pal, subsidies are granted to trade unions furnishing unem-
ployment insurance. This is the principle of the famous
Ghent system, which was first introduced in the city of Ghent
in Belgium in 1901. The Ghent idea was rapidly adopted,
with some modifications, not only in a number of cities in
Belgium, but also in Great Britain, Germany, France, Switzer-
land, Italy, Holland, Denmark, and Norway. The subsidies
vary in the different countries from 33^ per cent, to 100 per
cent, of the benefits paid by the unions. In Great Britain
the trade unions which are outside of the compulsory unem-
ployment insurance law receive a state subsidy of not over
one-sixth of the total amount of the out-of-work benefits paid.
The system of government subsidized unemployment insur-
ance has undoubtedly stimulated provision against unemploy-
ment. 1 On the other hand, it is generally recognized that
the advantages of optional subsidized insurance are not far-
reaching enough to offset its limitations, the most important
of which is its failure to attract a sufficiently large number of
workers. The lesson taught by the other branches of social
insurance points to compulsory insurance as the solution of
the problem.
(3) Compulsory Unemployment Insurance
Compulsory unemployment insurance was first introduced
in the city of St. Gall, Switzerland, in 1894. After a two years'
1 See I. G. Gibbon, Unemployment Insurance, pp. 104, 105.
vSOCIAL INSURANCE 411
trial the system, owing to defective administration, was ad-
judged a failure and was discontinued. The only country
where compulsory unemployment insurance is now in force
is Great Britain, under the national insurance act of 191 1,
which went into operation on July 15, 19 12.
The unemployment insurance part of this act applies to
seven groups of trades, but the administrative authorities are
permitted to extend the range of the system. The selected
trades are (1) building, (2) construction of works, (3) ship
building, (4) mechanical engineering, (5) iron-founding, (6)
construction of vehicles, and (7) saw-milling, and they were
chosen because in them the extent of unemployment was
greatest and most accurately known. About 2,500,000 work-
men are included, out of 15,000,000 in the country, or 16%
per cent. The employer and employee contribute equal
amounts of 5 cents each week; to this the government adds
3 J^3 cents, which is one-third of the combined contribution
of employer and employee. This premium entitles the worker
in case of unemployment to the sum of $1.75 a week for not
more than fifteen weeks in any one year. No benefit is paid
for the first week of unemployment, and the worker must be
insured five weeks for every week of benefit he claims. The
limitation to fifteen weeks a year has not in practice worked
any serious hardship. In a study of 130,000 cases of unem-
ployment it was found that only .5 per cent, of the recorded
unemployment among union men and only 1.2 per cent, among
non-union men was left without benefit because of this
restriction. 1 ■
To safeguard the workers' interests an unemployed man is
not compelled to take work in a place where a trade dispute
is on, or at wages below those he usually received or less than
those current in the community. Another clause with a
similar purpose provides that any insured workman over
sixty years of age, who has been insured for ten years and
who has paid 500 contributions, is entitled to a refund of his
total payments, less his total benefits, with compound in-
terest at 2^ per cent.
As a protection to the employer, a worker is refused benefit
1 First Annual Report, p. 13.
412 PRINCIPLES OF LABOR LEGISLATION
if he strikes, quits work without due cause, or is discharged
for bad conduct or inability to do the work. Furthermore,
an incentive to regularize work, to avoid large turn-overs of
labor, and thus to prevent unemployment, is held out to the
employer in the clause entitling him to a refund of one-third
of his own contributions for each worker retained in his em-
ploy not less than forty-five weeks in a year. This amounts
at present to not less than 75 cents a year for each employee
so retained, and the principle is, of course, capable of ex-
tension.
The administrative machinery of the act is simple. The
employee must secure an unemployment insurance book,
which on taking employment is deposited with the employer.
The latter must paste in the book on pay day the stamps
representing his own and the employee's contribution, de-
ducting the worker's portion from his wages. The weekly
payments are transmitted through the post office, which sells
the stamps, to the unemployment insurance fund, which, in
spite of the smallness of the individual contributions, totals
about $12,500,000 a year for the 2,500,000 insured workers. If
the insured worker loses his place, he receives from his em-
ployer his insurance book, which he must then deposit in the
nearest labor exchange or insurance office, one of which is
within five miles of every considerable group of workers in
the kingdom. He is thus automatically registered as looking
for work, and so an abuse of the system by the "work-shy"
man is avoided. In the year ending January 17, 1914, the
sum of $2,488,625 was paid out by this system in unemploy-
ment benefits.
In America, as well as in Europe, the importance of com-
pulsory unemployment insurance is rapidly gaining recogni-
tion. The oft-recurring periods of general industrial de-
pression and the prevalence of unemployment in the numer-
ous seasonal trades are emphasizing the need for organized
social action. In the winter of 1914-1915, particularly, the
alarming extent of unemployment called forth general and
deep interest, and among the methods most often urged for
dealing with this evil was state supervised insurance. Dur-
ing the same winter unemployment insurance bills were
drafted for introduction in several states. These bills provided
SOCIAL INSURANCE 413
for compulsory, contributory insurance, jointly administered
by employers and employees under public supervision, and
with subsidies to organizations voluntarily entering the system.
Ten weeks' benefit was tentatively proposed, with the proviso
that the amount should be as large as possible. Refunds to
employers who ran their plants steadily, and to workmen
who were rarely out of employment, and corresponding penal-
ties for casual labor, were included for the purpose of stimu-
lating regularization of industry. To obviate unnecessary
claims, close dependence upon an efficient system of public
employment exchanges was insisted upon.
Insurance provides a dignified method of financial assist-
ance to unemployed wage-earners, the majority of whom
would be forced either to seek charity, with all its objection-
able consequences, or to suffer privation. The out-of-work
benefit, although amounting to but a fraction of the regular
wage, is still sufficient to ward off for a time complete destitu-
tion; it thus contributes materially toward the preservation
of the workers' character and physique during times of un-
employment, and prevents their falling into the ranks of
the unemployable where they would constitute a much more
difficult problem.
But of equal significance with these financial arrange-
ments is the power of compulsory insurance to prevent un-
employment. Workmen's compensation laws have stimu-
lated the development of the "Safety first" movement. The
activity of the German sickness insurance funds affords an
effective demonstration of the preventive possibilities of
compulsory health insurance. Somewhat similar results can
be secured from compulsory insurance against unemployment.
An indispensable part of such insurance is a system of labor
exchanges, the activity of which is a powerful means of re-
ducing the amount of involuntary idleness. The financial
claims of unemployment insurance on industry call the em-
ployers' attention to the regularization of business, for such
regularization would reduce the amount of unemployment and
also the cost of insurance. Refunds to employers for steadily
employed workers, as provided by the English act, would also
be an inducement to preventive measures. The indications
are that this branch of social insurance can be made to acconv
4M PRINCIPLES OF LABOR LEGISLATION
plish with respect to involuntary idleness a very considerable
prevention of the evil itself, which from every point of view
is far more important than the payment of benefits. As elo-
quently stated by Leon Bourgeois, president of the Inter-
national Association on Unemployment: "To relieve is to
wait until the evil has befallen, to attempt to repair it. To
relieve is to wait till misery has come, to give alms to the
miserable. But alms remains at best a meritorious deed, not
a social act." 1 Elimination of the condition which makes
relief necessary is the social act contemplated by any adequate
system of social insurance.
But in this matter, as in all matters of labor legislation, the
results attained depend in the last analysis upon efficient
administration.
1 Address delivered at the Ghent International Exposition, 1913, Ameri-
can Labor Legislation Rei'iew, March, 1914, p. 186.
CHAPTER IX
ADMINISTRATION
Notwithstanding all that has been said regarding the prog-
ress of legislation for the protection of the workers, it is
scarcely worth consideration if the laws are not enforced.
More important than the hasty enactment of additional laws
is the adoption of methods of administration that will enforce
them. It is easy for politicians, or reformers, or trade union
officials, to boast of the laws which they have seoired for
labor, and it is just as easy to overlook the details, or appro-
priations, or competent officials, that are needed to make
them enforceable. It is easy to say that little or nothing can
be done by changing the "machinery of government" and
that the real thing to do is to get "better officials" to enforce
the laws and better judges to interpret them. But it is only
through the "machinery of government" that such officials
are found and selected, and that judges can have the facts
needed for interpretation. Administration is more than mech-
anism. It is a method of legislation. It is the means of
investigating, drafting, and adopting enforceable laws. It is
the means of getting and keeping competent officials. It is
the method of determining what authority or powers the
officials shall have, how they shall execute the laws, what
procedure they shall follow in court, what facts they shall
investigate for the use of the court in its duty of interpretation.
Administration is legislation in action.
In a constitutional government, executive officers are not
supposed to go out with a club and, on their own initiative,
force people into obeying what they happen to think is the
law. Before they act, they arc supposed to investigate. The
legislature, too, is assumed to be a body possessed of all the
facts and its acts arc unconstitutional when they disregard
416 PRINCIPLES OF LABOR LEGISLATION
essential facts that could be ascertained by investigation. The
court, through many centuries of experience, has developed
the law of evidence and the procedure of investigation for the
trial of individuals who are charged with the violation of law.
Finally, when the higher court passes upon the constitutional-
ity of the law itself, it does so with reference to whether the
facts are such as call for the law and whether the law deals
with the facts in accordance with the higher law of the con-
stitution.
Thus each department of government is an investigating
body. Only by investigation can each be restrained from the
arbitrary and capricious acts that make despotism abhorrent.
This is the significance of "reasonableness," which runs
through every requirement of the constitution. Reasonable-
ness is ascertained by investigating all the facts and giving
to them "such weight as may be just and right in each case." x
Thus we have executive, judicial, and legislative investigations,
designed to guide each department of government in dealing
with all the facts in its own field.
But modern industrial conditions have become so complex,
and the laws deal with such a variety of facts, that a fourth
department of government is emerging whose purpose is pri-
marily investigation. This is administration. If administra-
tion is legislation in action, it is because administration is in-
vestigation. It unites in one department the investigating
activities of all departments. First, as to the executive de-
partment and its field of investigation.
i. The Executive
The history of the so-called "factory acts" shows the be-
ginnings of the special kind of investigation needed for the
enforcement of labor law. The term "factory act" or "fac-
tory legislation" covers all legislation, whether applied to
factories or to other establishments, respecting such matters
as health and safety of workers, hours of labor, child labor,
payment of wages, company stores, and so on. Factory acts
1 Smyth v. Ames, 169 U. S. 466 at p. 547 (1897); Freund, Police Power,
1904, p. 58.
ADMINISTRATION 417
are distinguishable from those laws which determine the
fundamental rights and duties of master and servant, em-
ployer and employee in the labor contract, such as mechanics'
lien, wage exemption, employers' liability, and the law of
conspiracy. The distinction is not always clear because the
line between the two is drawn differently at different times
and in different countries. In general, we may say that by
factory legislation is meant that side of labor legislation which
requires officials for continuous inspection and enforcement,
whereas other labor laws are enforced only when a private
individual brings a case in court. The distinction tends to
disappear in proportion as special administrative machinery
is adopted for the enforcement of other laws. For this reason
the term "labor legislation" is taking the place of "factory
acts."
The early factory laws provided no special officers for their
enforcement. It was assumed that complaints would be
made by the injured employees, and it was merely provided
that the ordinary officers attached to the court, such as
sheriffs, policemen, prosecuting attorneys, should attend to
the prosecutions on complaint. Such is even now the theory
and practice in some states, especially in the South.
It required several years to discover the futility of this kind
of administration. Employees would not make complaints
for fear of being discharged. The officials had other duties
more urgent. They were local officials, usually afraid of the
voters.
The next step, beginning in the decade of the 'seventies,
was the creation of a class of special state police, known as
factory inspectors, whose duty it was to investigate the con-
ditions in the factories, to get their own evidence of violations
and then to conduct the prosecutions without calling upon
employees to testify.
The first state to appoint this class of special police was
Massachusetts, in 1879. Since that time the method has been
adopted in half of the states and the largest force of inspectors
in any state is that in New York, numbering over 150.
The investigations made by executive officials, whether
they are the ordinary officials or special police, have a limited
and special purpose. The object is to secure evidence for
27
418 PRINCIPLES OF LABOR LEGISLATION
prosecutions against violators of the law. Having secured
their evidence they must take it to the prosecuting attorney
or district attorney, who then reinvestigates the facts in order
to determine if there is a case made out that will probably
result in a conviction when tried in court. Finally, when the
case is brought to trial, the court again investigates all the
facts, calling witnesses on both sides and providing for their
cross-examination. It follows precise rules of evidence, re-
jecting what is immaterial to the point to be decided. This
evidence may be heard and passed upon by a jury. The en-
tire procedure of the executive, the prosecutor and the court
in reaching a decision and enforcing the law turns upon an
investigation of the facts of violation.
For various reasons, the enforcement of labor law in
American states through investigations by factory inspectors
has come to be recognized as ineffective. The inspectors are
not trained for their work; they are frequently changed;
they are poorly paid, and they have but little opportunity
for promotion and a professional career. Their number is
often inadequate for the amount of work required. Much
of their time is often given to gathering and publishing large
volumes of belated statistics that have but little value as an
aid either to their own administration or to the legislature in
improving the laws. Considerable attention has been given
recently to these deficiencies and they are justly considered to
be the most important problem of labor legislation. Useless
statistics are giving way to timely bulletins on safety, health ,
and other specific conditions of labor. The New York State
Factory Investigating Commission was created, after a deadly
factory fire, to inquire why it was that the laws were not en-
forced. 1 The United States Bureau of Labor investigated the
enforcement of woman and child labor laws. 2 The American
Association for Labor Legislation devotes a large part of its
attention to the improvement of administration. 3 Out of
these investigations and a widespread distrust of the existing
1 See New York State Factory Investigating Commission, Preliminary
Report, 1912, pp. 13, 14.
2 Report on Condition of Woman and Child Wage-Earners in the United
States (Senate Doc. 645, 61st Congress, 2d Session), 1910-1913.
3 See its official organ, the American Labor Legislation Review, pub-
lished quarterly, beginning 1909.
ADMINISTRATION 419
methods of factory inspection have come the beginnings of
serious attempts to improve the character of administration.
The more promising of these attempts are described in the
following pages. They involve not only the executive branch
of government, but also the legislative and judicial branches.
2. The Legislature
In an executive investigation no question is raised as to
the reasons for the enactment of the law itself. The question
is merely whether the law was violated or not. Investigations
take a much wider scope when the matter is being prepared
for the legislature upon which it shall proceed to enact a law.
The first investigations on a subject of legislation are usually
made by private parties or by persons whose object it is to
secure legislation. In the field of labor the American working-
men's organizations, as early as 1832, published reports upon
the conditions of labor showing the need of new laws for their
correction. These crude investigations have been followed
and multiplied by a great variety of associations and organiza-
tions. In the decades of the 'forties and 'fifties industrial
congresses were held in different cities and investigations of
shop and factory conditions were made. The International
Workingmen's Association, founded by Karl Marx and the
British trade unionists in 1864, and spreading to the United
States, contained as one of its objects the collection of informa-
tion and carrying on of investigations of labor conditions in
different countries of the world. The National Labor Union
in 1868, the industrial congresses of 1873 and 1874, the Knights
of Labor and the American Federation of Labor have all in
turn conducted investigations on all the aspects of labor
problems that in their opinion needed legislation.
In the decade of the 'eighties private organizations like the
Consumers' League began investigations, especially of child
labor and sweating systems. The National Child Labor Com-
mittee, founded in 1904, has had a systematic plan and a wide
field of investigation. In 1900 the first international associa-
tion for the investigation of labor conditions in all countries
was organized at the Paris Exposition, under the name of the
4 2o PRINCIPLES OF LABOR LEGISLATION
International Association for Labor Legislation. It has or-
ganized sections in fifteen countries. 1 In some cases affiliations
are made with previously existing private organizations such
as the Union for Social Reform in Germany. The object of
the International Association is to bring about uniform legis-
lation through treaties entered upon by independent govern-
ments. Its procedure is to hold international biennial con-
gresses in Switzerland, at which the conditions of labor and
the laws of different countries are reported upon and plans
for uniform laws are drafted. Through the courtesy of the
government of Switzerland the diplomatic representatives
of the different nations are then invited to meet and formu-
late "conventions" carrying out, as far as possible, the plans
recommended by the preceding congress of the Association.
When these "conventions" are agreed upon the several
countries enact the desired legislation and enforce it in their
own jurisdiction. When any country has adppted the recom-
mendations of a convention it becomes equivalent to a treaty
between that and other countries that have acted in the same
way. The first international "conventions" of this kind
were those forbidding the night work of women 2 and the
use of poisonous phosphorus in the manufacture of matches. 3
The former has been adopted by fourteen nations and the
latter by eleven.
The American section of the International Association was
organized in 1906 with the object of investigating conditions
underlying labor laws and disseminating information leading
to the enactment and efficient enforcement of protective legis-
lation. It has conducted investigations, held national con-
ferences, published reports, drafted bills, and secured the
enactment into law of progressive standards.
The characteristic of the activities of the International
Association and its fifteen national sections is scientific in-
vestigations conducted with the definite object of securing
needed legislation. Like other private associations its work
is largely propagandist and does not carry official weight.
1 Austria, Belgium, Denmark, England, Finland, France, Germany,
Holland, Hungary, Italy, Norway, Spain, Sweden, Switzerland, and the
United States. 2 See "Night Work," p. 248.
3 See " Prohibition of Substances or Instruments," p. 325.
ADMINISTRATION 421
However, the International Association, with permanent
headquarters in a government building at Basel, Switzerland,
receives subventions from twenty -two different national
governments. In this respect it marks the beginning of an
affiliation between private investigations and those conducted
by government. 1
As early as 1838 the state legislature of Pennsylvania con-
ducted an investigation of woman and child labor in the
factories of that state. 2 Massachusetts followed in 1845.
Many states and the national government have at different
times carried on investigations of this kind for special purposes
by temporary committees of the legislature or by commissions
appointed for the purpose. During the years 1910 to 1915
there were nearly thirty state commissions and one federal
commission for the study of industrial accidents and the draft-
ing of laws on workmen's compensation. Another notable
example is the Factory Investigating Commission of New
York, whose careful investigation led to the adoption in 19 14
of a large number of labor laws by the legislature of that
state. In the broader field of federal investigations, a com-
mittee of the Senate of the United States in 1885 held extended
hearings on the subject of capital and labor. The Industrial
Commission, composed of members of Congress and ap-
pointees of the President, made a report of nineteen volumes
on the same and other subjects in 1901. Other temporary
federal commissions have been the one on Immigration
in 191 1, and the Commission on Industrial Relations of
1913- . .
The origin of these temporary legislative investigations was
either a demand on the part of private organizations for
definite legislation or for official inquiry which would have
greater weight through the power of compelling witnesses to
testify and the conclusiveness which could not be secured by
private societies. Their intent was both to inform the public
and to aid the legislature.
The first state in the world to establish a permanent bureau
for the investigation of labor conditions was Massachusetts
in 1869. Under the name of bureau of labor statistics, or
1 See Bibliography, p. 488.
2 Pennsylvania Senate, Journal, Vol. II, 1837-1838.
422 PRINCIPLES OF LABOR LEGISLATION
bureau of labor, such permanent machinery of investigation
has been established in about forty states, by the federal
government with its Department of Labor, first established
in 1884, and bj>- all national governments where the problem
of labor and capital has become prominent. These bureaus
were at first established primarily on the petition of labor or-
ganizations. 1 Their scope has been broadened in some cases
but their largest activity has been the collection of statistics
of wages, hours, and conditions of labor. At times they are
called upon by the legislature to make investigations which
otherwise would have been conducted by legislative commit-
tees or temporary commissions, such as the investigation of
woman and child labor by the federal Bureau of Labor in 1908.
A certain ineffectiveness of these bureaus has sprung from
their desire, as permanent bureaus, to maintain a non-com-
mittal attitude in presenting facts, and they generally refrain
from making recommendations for legislative action. An ob-
stacle, also, in the way of these bureaus for purposes of legis-
lative investigation arises from the fact that they are, in near-
ly all cases, combined with the special police or factory in-
spection department, whose business is investigation for the
purpose of prosecution. A person investigated for crime does
not readily furnish the same investigator with information
for statistics.
3. The Judiciary
In the United States the judicial branch of government
may be called upon to make investigations of labor condi-
tions in order to render decisions on the constitutionality of
laws enacted by the legislature. These investigations are
quite different in character from those, previously described,
in a trial for the violation of statutes. In a trial the question
to be decided is that of a particular violation of a law. In
questions of constitutionality the question is the conformity
of the law with the constitution. Here the court must in-
vestigate the question as to whether there is really an evil
condition that needs to be remedied; whether this condition
1 Powderly, Thirty Years of Labor, 1889, p. 303.
ADMINISTRATION 423
is a menace to the public or whether the statute is merely a
benefit to private individuals without a public purpose;
whether under the actual conditions the legislature confiscates
property, discriminates between individuals, and thus denies
the equal protection of the laws. 1
In making such an investigation the court might appoint a
referee or master in chancery to take evidence and investigate
the facts. This procedure is often followed in the regulation
of public utilities. The referee, usually a lawyer appointed
by the court, calls before him accountants, engineers, experts,
as needed, and makes a report to the court of the facts. Such
a practice, however, has not been followed in cases where the
constitutionality of labor laws is called in question. This is
probably owing to the fact that legislation of this character
covers a large variety of subjects, requires a variety of wit-
nesses and extended technical investigations, and that the
court is not itself equipped with the staff of investigators com-
petent to secure and furnish the information. The result is
that social and economic conditions are not investigated by
the court and it is compelled to fall back upon the principles
of constitutional law, without full knowledge of the conditions
to which the statute applies. Examples of decisions without
investigation of conditions are as follows:
The Colorado Supreme Court in declaring unconstitutional
a law which limited the hours of labor in smelters to eight
a day said:
This act is an unwarrantable interference with, and infringes, the right
1 "The principle involved in these decisions is that where the legisla-
tive action is arbitrary and has no reasonable relation to a purpose
which it is competent for government to effect, the legislature transcends
the limits of its powers, in interfering with liberty of contract; but where
there is reasonable relation to an object within the governmental au-
thority the exercise of legislative discretion is not subject to judicial
lew." (C. B. & Q. Railroad Co. v. McGuire, 219 U. S. 549 (191.1)-)
"In every case that comes before this court, therefore, where legisla-
tion of this character is concerned, and where the protection of the
federal constitution is sought, the question necessarily arises: Is this a
fair, reasonable, and appropriate exercise of the police power of the
state, or is it an unreasonable, unnecessary, and arbitrary interference
with the right of the individual to his personal liberty, or to enter into
those contracts in relation to labor which may seem to him appropriate
or necessary for the support of himself and his family." (Lochner v.
New York, 198 U. S. 56 (1905).) See also "Public Benefit," p. 24, and
"Equal Protection of the Laws," p. 28.
4 2 4 PRINCIPLES OF LABOR LEGISLATION
of both the employer and employee in making contracts relating to a
purely private business, in which no possible injury to the public can
result. 1
Likewise Judge Gray explained in the following language
why the New York court nullified a law prohibiting night work
for women:
I think that the legislature, in preventing the employment of an adult
woman in a factory, and in prohibiting her to work therein before six
o'clock in the morning, or after nine o'clock in the evening, has over-
stepped the limits set by the constitution of the state to the exercise of
the power to interfere with the rights of citizens. ... It is clear, as it seems
to me, that this legislation cannot, and should not, be upheld as a proper
exercise of the police power. It is, certainly, discriminative against
female citizens, in denying to them equal rights with men in the same
pursuits. 2
In the following cases the court clearly states that sufficient
facts have not been presented to prove that legislation of
that character is necessary to conserve the public welfare:
In the first Ritchie case the Illinois Supreme Court said:
There is no reasonable ground — at least none which has been made
manifest to us in the arguments of counsel — for fixing eight hours in one
day as the limit which woman can work without injury to her physique,
and beyond which if she works, injury will necessarily follow. But the
police power of the state can only be permitted to limit or abridge such
a fundamental right as to make contracts, when the exercise of such
power is necessary to promote the health, comfort, welfare, or safety of
society or the public, and it is questionable whether it can be exercised
to prevent injury to the individual engaged in a particular calling. 3
In the Lochner case, where a ten-hour law for bakers was
tested, the court had before it only a limited amount of gen-
eral information on the subject, without any special investiga-
tion. The majority ruled that the facts were not conclusive
to warrant such legislation for the following reasons:
We think the limit of the police power has been reached and passed in
this case. There is, in our judgment, no reasonable foundation for hold-
ing this to be necessary or appropriate as a health law to safeguard the
1 In re Morgan, 26 Col. 415, 47 L. R. A. 52 (1899).
2 People v. Williams, 189 N. Y. 131, 81 N. E. 778 (1907).
3 Ritchie v. People, 155 111. 98, at p. 113, 40 N. E. 454 (1895).
ADMINISTRATION 425
public health, or the health of the individuals who are following the
trade of a baker. . . . We think that there can be fair doubt that the trade
of a baker, in and of itself, is not an unhealthy one to that degree which
would authorize the legislature to interfere with the right to labor, and
with the right of free contract on the part of the individual, either as
employer or employee. In looking through statistics regarding all trades
and occupations it may be true that the trade of a baker does not appear
to be as healthy as some other trades, and is also more healthy than still
others. To the common understanding the trade of a baker has never
been regarded as an unhealthy one. . . . There must be more than the
mere fact of the possible existence of some small amount of unheal thiness
to warrant legislative interference with liberty. 1
The foregoing cases illustrate the attitude of the courts
where investigations of the facts have not been brought to
their attention, or where they have been compelled to de-
pend upon such knowledge as they themselves might have
regarding such facts. In such a case the court might take
what it calls "judicial notice" of facts even though they are
not presented in evidence, and might rely upon what it con-
siders "common knowledge," or that kind of knowledge which
a reasonable person ordinarily well informed might be sup-
posed to have upon the subject. Common knowledge may
go still further and include investigations made by private
societies or by individuals or attorneys which appear to the
court as presenting the facts pertaining to the case. "Courts
will take notice of whatever is generally known within the
limits of their jurisdiction." 2 "A common belief, like com-
mon knowledge, does not require evidence to establish its
existence, but may be acted upon without proof by the legis-
lature and the courts. While the power to take judicial notice
is to be exercised with caution and due care taken to see that
the subject comes within the limits of common knowledge,
still, when according to the memory and conscience of the
judge, instructed by recourse to such sources of information
as he deems trustworthy, the matter is clearly within those
limits, the power may be exercised by treating the fact as
proved without allegation or proof." 3
1 Lochner v. New York, 198 U. S. 45, at p. 58 (1905).
2 Quoted from Brown v. Piper, 91 U. S. 37 (1875), in People v. Charles
Schweinler Press, 214 N. Y. 395, 108 N. E. 641 (1915).
3 Quoted from In re Viemeister, 179 N. Y. 235, at p. 240, 72 N. E. 97
(1904), in People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E.
426 PRINCIPLES OF LABOR LEGISLATION
The first notable example of a decision on the constitution-
ality of a law based upon investigations of this kind is that
of the Holdcn v. Hardy case, in 1898. In that case the at-
torney in defense of the law made a partial investigation of
the health of workmen in mines and smelters which was pre-
sented in his brief to the court. Upon this information the
court took exactly the opposite view of the Colorado court
above cited, and held that the law was constitutional upon
the following grounds:
While the general experience of mankind may justify us in believing that
men may engage in ordinary employments more than eight hours per
day without injury to their health, it does not follow that labor for the
same length of time is innocuous when carried on beneath the surface
of the earth, when the operative is deprived of fresh air and sunlight, and
is frequently subjected to foul atmosphere and a very high temperature,
or to the influence of 'refining or smelting. 1
It is to be noticed that while the Supreme Court held that
the questions of law— that is, the principles of public benefit
and equal protection of the laws — were identical in the Loch-
ner case and the Holden v. Hardy case, the former was de-
clared unconstitutional while the latter was upheld because
of difference in fact. Similarly, Mr. Brandeis in his brief
in Mueller v. Oregon quotes the law as propounded in the
Lochner case but argues that the facts "establish . . . con-
clusively, that there is reasonable ground for holding that
to permit women in Oregon to work in a 'mechanical estab-
lishment, or factory, or laundry' more than ten hours in one
day is dangerous to the public health, safety, morals, or wel-
fare." The court, which sustained the law, concurred in
counsel's contention, as indicated by the following quotation:
In patent cases counsel are apt to open the argument with a discussion
of the state of the art. It may not be amiss, in the present case, before
examining the constitutional question, to notice the course of legislation,
as well as expression of opinions from other than judicial sources. In
the brief filed by Mr. Louis D 
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