CHAPTER IV

JUDICIAL INTERPRETATION OF THE RIGHT TO LEISURE

The right to leisure has long been striven for by means of trade

agreements between employers and employees, and of statutes, state and

federal. The statutes are many and diverse, but those with which the

present discussion is concerned are of three kinds:

Statutes stipulating the hours of work of public servants, as letter

carriers and printers in the government printing office;

Statutes restricting the hours of labor of women and children;

Statutes which are now for the first time upheld by the courts,

restricting, in certain occupations, in the interest of the public

health, the hours of labor of adult male employees working for

corporations or individual employers.

Until it has been sustained by the Supreme Court of the United

States, a statute is merely a trial draft, the enactment of which is

but the first step in its development into valid law. In discussing

the gains which have been made in the direction of establishing the

right to leisure, it is, therefore, necessary to consider the leading

cases which determine the line of progress.[6] Two cases decided by

state courts of last resort are still effective in preventing the

enjoyment of the right to leisure by wage-earners in those states,

although the Supreme Court of the United States has, in regard to the

subject matter of each decision, subsequently pronounced in favor of

the constitutionality of the statutory right; and it is, therefore,

reasonable to believe that, in the course of time, the state courts

will reverse their present positions. These are the cases of Ritchie

_vs._ the People (Supreme Court of Illinois, March 5, 1895), and the

People _vs._ the Orange County Road Construction Company (April 25,

1903, Court of Appeals of New York).

=The Right to Leisure Accorded to Public Servants.=--The government of

the United States, in the year 1892, recognized the right to leisure by

limiting to eight hours in one day the working time of laborers in its

employment.

Since that time it has paid extra for overtime work. The same right is

recognized for many thousand employees directly engaged in the service

of states and municipalities. In all these cases the hours of labor are

restricted by statute, state or federal, enacted through the exertions

of the employees themselves or of men engaged in the same or kindred

work.

No claim has been made that it would necessarily injure the health of

the adult employees engaged in these occupations to work more than

eight hours in a day. It is, however, their preference to work no

longer than that. They are politically powerful enough to establish

their preference by procuring legislation; and in the case of the

printers, they have established the right before the Supreme Court

of the United States. The work of the nation, the states and the

municipalities appears to be done, on the whole, satisfactorily to the

people and to the employees. Such scandals as have arisen in the public

service seem to have had no relation to the daily work of the rank and

file.

It is worthy of note that these employees are engaged at work in

which they are subject to no pressure of competition from women and

children. The moderate hours of work doubtless explain, in part at

least, the eagerness of men to secure public employment, even where

defective civil service laws make promotion excessively difficult and

give the public servant scant hope of any considerable increase in his

remuneration.

Convinced of the advantage derived by men in the direct employ of

the various governments, federal, state and municipal, from the

short working day prescribed by law, many trade organizations have

long and persistently striven to secure from Congress and from

state legislatures, laws requiring that contractors employed by the

government shall be bound by the terms of their contracts to limit

the day’s work to eight hours. The workingmen insist that work for a

government contractor is indirectly work for the government, and should

be performed upon the same terms, assuring to the worker the same

advantages. As government contracts ramify into ever-increasing series

of industries, such statutes would establish the usage of the shorter

working day to an extent and in directions little foreseen by those who

are not personally interested in the subject.

The unimagined ramifications of the work of the United States

Government done under contract may be indicated by the fact that the

writer has seen letter pouches, for the use of the United States

railway mail service, sewed by small boys detained in a reformatory

institution for young children carried on by a religious sect, at

the cost of the treasury of the city of New York. The government

contract had been awarded to a manufacturer who had farmed out a part

of it under the sweating-system, to be executed by child labor, under

conditions deemed wholly inadmissible by enlightened modern opinion.

This ramification of government contract work into the sewing trades,

the sweating-system, and the perversion of child-saving philanthropy is

cited merely to intimate how far reaching, in its potential beneficent

effects, is the effort of the workingmen to secure statutory provision

that, in all contracts for government work, the right to leisure shall

be recognized by a stipulation binding the contractor to the working

day of eight hours.

The effort thus to secure statutory recognition of their right to

daily leisure when employed indirectly by the government through

contractors, is made as vigorously by men in industries in which

trade agreements are available as in other trades. From their long,

persistent effort for this legislation, it appears that they recognize

the desirability of statutory recognition of the right, as contrasted

with the conquest of leisure, in each individual case, by means of

trade agreements.

Viewed as an infringement of his freedom of contract, the workingman’s

eagerness for statutory restriction upon his hours of labor may seem

to be self-stultification. But viewed as an effort to establish a

legal claim to a settled modicum of daily leisure, it becomes at

least intelligible. There may well have been a time when a usury law

seemed to inflict hardship upon a borrower eager to pay any price for

an urgently needed loan. Yet it was the debtor class who desired and

ultimately obtained the enactment of usury laws. They wished to be

rid of their freedom to contract for lifelong indebtedness, as the

wage-earner to-day wishes to be rid of his present freedom to bargain

away what he regards as an undue share of his twenty-four hours, and

experience has demonstrated the correctness of the instinct which

guided the effort of the debtors.

Every year the body of workingmen voters pledged to secure from the

various governments legislation prescribing the so-called “eight hour

clause” in all contracts, grows larger and more insistent; and every

year the industrial territory involved in such contracts enlarges

its boundaries and becomes more important. The recent irrigation

undertakings of the United States in the arid regions sufficiently

illustrate the rapidly increasing scope of these contracts.

Although Congress is far behind the governments of England and Canada

in guaranteeing to its indirect employees, working for it through

contractors, the same leisure which it has long granted to its direct

employees, the states and cities are going rapidly forward and the

Supreme Court of the United States, in October, 1903, in the case of

Atkins _vs._ the People, sustained the right of a state to provide by

statute for the working day of eight hours for employees of the state

itself, and of counties and municipalities within its borders, whether

the work be done directly, or indirectly through contractors.

When a majority of the states, acting under this decision, have adopted

statutes providing for the working day of eight hours for employees

working for the public indirectly through contractors, it is reasonable

to suppose that Congress will enact the bill which for many years has

been presented to it at every session, providing for similar protection

for workingmen in the employ of contractors working for the federal

government.

=The Right to Leisure of Wage-Earning Women and Children.=--While

striving to establish for themselves the right to daily leisure by

trade agreements and by statutes, the wage-earning voters have never

relaxed their efforts to establish the same right for women and

children in the employ of private individuals and corporations. And

in this effort they have found it easier to use legislative methods,

because the courts have been, on the whole, more inclined to permit the

exercise of the police power of the legislatures than in the case of

adult men.

Statutes restricting the hours of labor of women and children, while

enacted in the interest of health and morality, have often been urged

by persons animated by two other motives as well. In many cases, men

who saw their own occupations threatened by unwelcome competitors,

demanded restrictions upon the hours of work of those competitors for

the purpose of rendering women less desirable as employees. In other

cases, men who wished reduced hours of work for themselves, which the

courts denied them, obtained the desired statutory reduction by the

indirect method of restrictions upon the hours of labor of the women

and children whose work interlocked with their own. But whatever the

motive of the enactment, the real gain has always been leisure for all

concerned; and the advantages to employers derivable from the work of

women and children have regularly outweighed any inconvenience arising

from the shortened working week.

Before 1889 the effort for the enactment of statutes regulating the

hours of labor of women was confined to the trade unions, who had

struggles of their own, to protect their own interests, and who can

scarcely be blamed if they fought the battles for leisure for women and

children first and most effectively in fields of industry where they

themselves reaped rewards from their occasional successes, _i. e._, in

occupations in which the work of women and children interlocked with

their own.

The sum total of progress made is deplorably slight. While the hours

of labor of children under the age of sixteen years are restricted

to eight in one day and forty-eight in one week in Utah, Colorado,

Montana, Illinois and Vermont; to nine in one day and fifty-four in

one week in New York and Delaware and to ten in one day and fifty-five

in one week in New Jersey; yet for girls between the ages of sixteen

and twenty-four years whose numbers are increasing more rapidly than

any other part of the working class, there are neither effective

trade agreements nor laws prescribing anything more advanced than the

working-day of ten hours and the working-week of fifty-eight or sixty

hours. Moreover, the existing inadequate statutes tend to laxity of

enforcement and to exceptions so important as to nullify the intent of

the law in many cases.

Obviously most progress in establishing the right to leisure has been

made by men who are both skilled workers and also voters (printers in

the government offices, etc.), and the least progress by children ten

years old in Georgia and Mississippi. We commonly assume that, under

the processes of evolution, industrial conditions improve from decade

to decade. But in the matter of a wholesome distribution of free time,

it is clear that gains have been made, hitherto, according to the power

of the working people to assert their right. How else can we account

for the fact that children of ten years of age still work eleven hours

a day in the cotton mills of Georgia? The reason for their overwork is

obviously to be sought in their powerlessness to organize for their own

defense, in the weakness of the organizations of men in industries in

which women and children compete, as they do in the textile trades; and

in that apathy of public opinion which permits stockholders living in

states in which relatively humane conditions have long prevailed, to

derive incomes from corporations in states in which children and young

girls are still exploited without restriction.

Leisure never comes to young girls and children employed in manufacture

and commerce through efforts of their own, or upon the initiative

of their employers, because under the demand for dividends and the

pressure of competition, the better employer is constrained by the

meaner or the industrially weaker. On a large scale this is illustrated

by the alleged present inability of manufacturers in Massachusetts to

shorten the working day and the working week in the textile trades, by

reason of the pressure of their Southern competitors. For the younger

workers, therefore, leisure is gained, with no help from themselves,

either because their work interlocks with that of men working under

trade agreements; or because statutes have been enacted for their

benefit and the organization of men in their trade is powerful and

intelligent enough to obtain effective enforcement of the laws; or

because there is intervention on behalf of the young employees by

philanthropic bodies, such as the Consumers’ League and the various

child-labor committees and working-women’s societies, through which the

public at large intervene in the interest of health and morality.

Taken altogether, the progress made on behalf of women and children,

so slight, and so diverse in the different states, indicates how

discouragingly far the right to leisure still is from any universal

recognition, and how dependent upon militant action of the workers

themselves.

It was not until after 1870 that Massachusetts, the Commonwealth which

for thirty years stood in advance of all the states of the Republic

in safe-guarding the health, welfare and rights of wage-earning women

and children, enacted a statute prohibiting the employment of women

and children in manufacture longer than ten hours in one day and sixty

hours in one week, and made provision for inspectors to enforce the

law. In 1876 this statute was pronounced constitutional by the Supreme

Court of Massachusetts in the case of the People _vs._ the Hamilton

Manufacturing Company (120 Mass., 385, 1876), in which it was held

that the legislature had full power to restrict by statute the hours

of labor of adult women employed in factories, under the terms of

Chapter II, Section iv, of the constitution of Massachusetts: “Full

power and authority are hereby given to the said General Court, from

time to time, to make, ordain and establish all manner of wholesome and

reasonable laws, ordinances, statutes, directions, and instructions,

either with or without penalties; so as the same be not repugnant to

this constitution, as they shall judge to be for the good and welfare

of the Commonwealth, and for the governing thereof.”

Many states have since followed the example of Massachusetts, but none

has gone beyond it. Indeed, so far as is known to the writer, no other

state has followed the important improvements incorporated in the

Massachusetts statute since its establishment in 1876 by the decision

of the Supreme Court. By subsequent amendments the hours of labor of

women engaged in manufacture were reduced to fifty-eight in one week,

and the same restriction extended, in 1900, to the hours of labor of

women engaged in commerce, although an exemption covering the month

of December temporarily weakened this extension compared with the

protection afforded to women engaged in manufacture. In 1904, however,

the exemption covering work in December was repealed, and women now

stand on the same footing in regard to daily leisure, whether they are

employed in manufacture or in commerce.

New York waited until 1886 before restricting by statute the hours of

labor of women and children; and even then provided only for women

under the age of twenty-one years, waiting until 1899, after the

promulgation of the decision of the United States Supreme Court in

the case of Holden _vs._ Hardy, February, 1898, before extending the

restriction to women of all ages engaged in manufacture.

The imperfect and unequal recognition of the right to leisure is well

illustrated by the present statutory provision of New York. There

children under the age of sixteen years cannot legally be employed

longer than nine hours in one day and fifty-four hours in one week.

For children engaged in manufacture, the working day must end at nine

o’clock at night, but children engaged in commerce may work until ten.

Women of all ages are nominally prohibited from working longer in

manufacture than ten hours in one day and sixty hours in one week, but

this prohibition is rendered virtually nugatory by the words “except

for the purpose of making a shorter working day on the last day of the

week,” in consequence of which the factory inspectors find the utmost

difficulty in proving any given violation of the whole provision.

Women employed in commerce enjoy, however, not even this defective

statutory provision after reaching the age of twenty-one years. And for

girls between the ages of sixteen and twenty-one years it is expressly

permitted that they may work, without limitation of the length of

the working day, from December 15 to January 1, _i. e._, during the

fortnight in all the year in which they are most in need of a definite

prohibition of all work after six o’clock at night.

Here are four divisions of the protected workers, all having different

provisions as to their degree of statutory leisure: Children under

sixteen years of age in manufacture, and children of the same age in

commerce; women under the age of twenty-one years in commerce, and

women of all ages in manufacture. And each of the two latter classes is

subject to exceptions in the statute which very seriously diminish its

face value.

=The Illinois Decision of 1895; (Ritchie _vs._ the People.)=--In 1893

the legislature of Illinois enacted a statute restricting the work of

women and girls engaged in manufacture to eight hours in one day and

forty-eight hours in one week, and provided for the enforcement of the

law by inspectors whose duty it was to prosecute all violations of the

statute. But in May, 1895, this law was pronounced unconstitutional by

the Supreme Court of Illinois, and since that date there has been no

restriction whatever upon the hours of labor of women in that state.

Because it is still in force in Illinois, depriving thousands of women

and young girls of all statutory protection in the enjoyment of their

right to daily leisure, this decision is still of importance, and is,

therefore, printed in the appendix.

At the time of the rendering of the Illinois decision, the writer, as

the responsible head of the state department of factory inspection,

charged with the duty of enforcing the eight hours law, incorporated

in the next following annual report of the department some comments

upon the decision, which have remained buried in the obscurity of an

official report. Time has, however, verified in so hope-inspiring a

manner some of the statements there made that it seems worth while to

reproduce them after the lapse of ten years:

“In annulling this section, the ground taken by the court, namely that

regulation of the hours of labor is in excess of the powers of the

legislature is of curious interest in contrast with the established

policy of those states and nations in which this power to regulate is

no longer in question, where the principle is accepted and acted upon

that the care of the health of the factory employee is a legitimate

subject of legislation.

“In France, Germany and every other continental country, including

Russia, and in the more progressive states of this country, legislative

regulation of the hours of labor has been found an effective measure

for the protection of the health of women and children employed in

factories and workshops. In England, the principle of the regulation

of the hours of work for women and children has been established for

more than two generations and the regeneration of the working-class

in that country, from the degradation in which it was sunk in 1844,

is generally attributed to the factory acts, and especially to this

important feature of them.

“In contrast with the beneficent policy which has been followed during

the past half-century in that greatest manufacturing country of the

world, the Supreme Court of Illinois, in the year 1895, has rendered

its decision upon grounds which were advanced and rejected in the

English parliament in the fifties.

“The new feature introduced into the body of American legal precedent

by this decision is the assumption that it is not exclusively a matter

of the constitution of Illinois. The state constitution could be

altered, so that thereafter the hours of labor could be regulated by

legislative enactment, as in the older industrial communities. The

court, however, makes the fourteenth amendment to the Constitution

of the United States the basis of its decision. If this position

were correct, all effort for legislative restriction of the working

day would be wasted, since there is no prospect of change in the

Constitution of the United States.

“Happily the weight of precedent is not on the side of the Illinois

court; the precedents are in the other direction. In Massachusetts,

for twenty years past, the principle has been established by the

Supreme Court that the hours of labor of women and children may be

regulated by statute. The Massachusetts precedent has had such weight

that no case has been carried to the Court of Appeals in New York. The

constitutionality of its ten hours law, though suits have been brought

under it, has never been disputed.

“It remained for the Supreme Court of Illinois to discover that the

amendment to the Constitution of the United States passed for the

purpose of guaranteeing the negro from oppression, has become an

insuperable obstacle to the protection of women and children. Nor is it

reasonable to suppose that this unique interpretation of the fourteenth

amendment will be permanently maintained, even in Illinois.

“To the working people of the state, the action of the Supreme Court

is a calamity, for it must never be forgotten, in discussing the

legislative restriction of the hours of labor, that this is not a

question between the day of eight hours and the day of ten. In practise

the question is between an unlimited working day and a day restricted

by statute to a reasonable number of hours. The court in this decision

holds that _any_ restriction of hours of labor of adults is beyond the

power of the legislature.

“The immediate result of the decision has been the reëstablishment of

the unlimited working day for thousands of women and children in the

factories and workshops of Illinois.

“When it is remembered that the annual increase in the number of women

and girls employed in factories and workshops in this state is counted

by thousands; that there are 1,181 little girls in the sweat-shops of

Chicago; that inspectors of this department have found at work during

the present year more than 30,000 women, of whom more than 7,000

were in sweat-shops, it is clear that the question of legislative

restriction of the hours of their labor is not finally settled when

the state Supreme Court has passed upon it in disregard of the body of

American judicial precedents, in opposition to the experience of all

civilized countries, and to the injury of the large and growing number

of women and children engaged in manufacture within this state.

“The judicial mind has not kept pace with the strides of industrial

development, and this decision shows that Illinois is, in law in 1895,

what it was in fact when the state constitution was adopted in 1870--an

agricultural state. What then can be done for the weakest and most

defenseless bread-winners in the state?

“The outlook is far from hopeless. Even under the decision as it

stands, farther legislative protection _for minors_ is not impossible.

As to adults, the court has reversed decisions upon points of far less

urgency than this.

“It may be that the court is as advanced as that portion of the

community which is not yet thoroughly aware that Illinois is the third

great manufacturing state of the Union. When, however, the observations

made during a few more years shall have convinced the medical

profession, the philanthropists, and the educators, as experience has

already convinced the factory employees themselves, that it is a matter

of life and death to the young people who form so large a proportion of

their numbers, to have a working day of reasonable length guaranteed by

law, it will be found possible to rescue the fourteenth amendment to

the Constitution of the United States from the perverted interpretation

upon which this decision rests. We may hope that Ritchie _vs._ the

People will then be added to the reversed decisions.”

Despite the suggestion of the court that the hours of labor of minors

could be restricted by statute, the paralyzing effect of the whole

decision was such that for eight years it was impossible to obtain even

a restriction upon the work of _little boys at night_ in glass-works.

It was not until 1903, ten years after the passage of the first

eight hours law, that a child-labor law was enacted prohibiting the

employment of children under the age of sixteen years after seven

o’clock at night, or longer than eight hours in one day. Thus from

1895 to 1903 girls fourteen years of age could be legally employed

throughout the night, or for any number of consecutive hours that might

suit the convenience of their employers. And at the present time,

both boys and girls over the age of sixteen years have no statutory

right to any daily leisure in Illinois, but may be called upon to work

twenty-four hours at a stretch if an employer should care to make such

a demand. Instances have come to the knowledge of the writer in which

corporations having branches in New York and Illinois obeyed the law

of New York and employed no women or girls after nine o’clock at night

in that state, while, under the Illinois decision, they required young

girls to work all night in the Illinois factory. Indeed, young girls

are regularly and constantly required to work at night in Chicago.

During the years since that belated and anti-social decision, Illinois

has been the scene of a large number of strikes, in which the length

of the working-day was either the only point or the principal point

at issue. Had the working day of women and girls remained legally

determined throughout the period, according to the enlightened

intention of the legislature of 1893, it would have been eliminated as

a cause of discord in all those cases in which only women and girls

were involved and in all those other cases in which the hours of labor

of men are determined by the length of the working day of the women and

girls whose work interlocks with their own. The number and seriousness

of the strikes since 1895, in Illinois, would in all probability

have been thus materially diminished, together with the lawlessness

incident to them, since an ever present cause of discord would have

been eliminated by the statutory recognition of a right.

Since 1876 the hours of labor of women engaged in manufacture have been

determined by statute in Massachusetts, and strikes turning upon this

point have been impossible. In Illinois, since 1895, the hours of labor

of women and girls have been unlimited, by reason of the decision of

the Supreme Court in the case of Ritchie _vs._ the People. Since the

Supreme Court of Illinois interfered with, and rendered unavailing, the

effort of the legislature of that state to eliminate a cause of discord

by establishing a statutory right, it seems reasonable to attribute to

the court the ultimate responsibility for the lawlessness of men and

women who have striven to establish by extra-legal or illegal methods

that right to leisure which the courts of Massachusetts and of the

United States affirm, but the Supreme Court of Illinois denies.

The justice who wrote the Illinois decision is dead. A judicial

election has been held and several of his reactionary colleagues have

been replaced by men of more modern mind. But more important than these

changes of personnel is the prospective effect of the decision of the

Supreme Court of the United States in the case of Holden _vs._ Hardy,

as will appear from the discussion of that case.

=The Right to Leisure of Workingmen.=--The most important judicial

decision affecting the right to leisure is that of the Supreme Court

of the United States in the case of Holden _vs._ Hardy, promulgated

February 28, 1898, and commonly known as the Utah Eight Hours Case.

This decision confirms the hope that the right to leisure may be

established and extended by constitutional methods, legislatures and

courts working harmoniously to promote the health and welfare of

wage-earning people. By its reasonable and affirmative construction and

definition of the intent and scope of the fourteenth amendment to the

Constitution of the United States, this decision opened the way for a

peaceful, though slow and laborious evolution of the beneficent powers

of the individual states, and for reasonable and wholesome hours of

work and of daily leisure. The fact that it immediately secured to the

employees in certain industries in Utah the benefits of a statutory

confirmation of their right to daily leisure, is not the vital point in

this decision. Far more important to the nation and the future is the

fact that it tended to rehabilitate the states in the performance of

some of their most weighty functions, and reaffirmed principles which,

formerly accepted as self-evident, had in recent years been not only

disputed but abrogated by state supreme courts in a long series of

decisions.

In all great industrial countries it has long been recognized that

manufacture and commerce require equitable conditions; that legislative

requirements of whatever kind, if imposed upon one, must be imposed

upon all alike; that discrimination must be avoided, not alone because

it is unjust, but because it is fatal. Hence legislation regulating the

conditions of employment is usually embodied in measures of national

scope, the execution alone being left to the local authorities, while

broad fundamental provisions are uniform for one industry throughout

an empire, a kingdom or republic. In America alone, the constitution

leaves, in effect, to the states the regulation of the relation of

employees to their work, and of the conditions of that work,--except

as employees who come under the interstate commerce act receive the

benefit of certain safe-guards prescribed by that act.

When, therefore, state Supreme Courts take the position held by the

Illinois court (Ritchie _vs._ the People), annulling the Illinois eight

hours law, viz.: that, in consequence of the fourteenth amendment

to the Constitution of the United States, the individual states are

prohibited from interfering with the hours of labor, commerce and

manufacture in the states affected by such decisions are, _pro tanto_,

worse off than in other states and countries; for they are left without

either state or national provision for that uniformity of relations

which is one of their most vital interests. This construction of the

fourteenth amendment, adopted and disastrously applied, in recent

years, by the Supreme Courts of Illinois and several other states, has

exercised a doubly injurious influence. It has minimized the power and

efficiency of the states, and it has deprived employees of a protection

which they could derive from no other source.

Incalculable importance attaches to this decision of the Supreme

Court of the United States, because it reproves and, in the end, must

effectively check that blighting tendency of the state Supreme Courts.

But for the unwholesome decisions of state courts arbitrarily placing

limitations upon the powers of the states and reducing to lawlessness,

for want of any legislative body recognized by the state courts as

competent to deal with them, the relations of employees to their

work, much of the decision under discussion might seem to be mere

truism. Under existing conditions, however, it offers the curious

and instructive spectacle of the Supreme Court of the United States

assigning to the states duties and powers which the Supreme Courts of

those states had previously declared not to be theirs.

In 1895 the Supreme Court of Illinois decided that the state cannot

restrict by legislation the hours of labor of any adult. About the

same time the legislature of Colorado inquired of the Supreme Court of

Colorado whether a proposed statute limiting to eight hours the working

day of laborers and mechanics would be constitutional; or whether it

could be rendered constitutional by an amendment providing that it

should apply only to mines and factories. The Supreme Court of Colorado

replied that both proposals “would be unconstitutional, because they

violate the right of both parties to make their own contracts--a right

guaranteed by the fourteenth amendment to the Constitution of the

United States.” In 1894 the Supreme Court of Nebraska had decided that

“an act of the legislature of that state providing that eight hours

should constitute a legal day’s work for all classes of mechanics,

servants, and laborers throughout the state, excepting those engaged

in farming and domestic labor, and making violation of its provisions a

misdemeanor, was unconstitutional, and, therefore, void both as special

legislation and as attempting to prevent persons legally competent to

enter into contracts, from making their own contracts.”

Undeterred by these three recent and discouraging decisions of

western courts, the people of Utah fell back upon the precedent of

Massachusetts (People _vs._ Hamilton Manufacturing Company, 1876),

affirming that the legislature of Massachusetts had power to restrict

by statute the hours of labor of adult women employed in factories.

The Illinois court, in its decision annulling the Illinois eight hours

law, had taken occasion to refer to the Massachusetts decision, stating

that, “it is not in line with the current of authority,” and explaining

that it could be arrived at only by reason of the “large discretion

vested in the legislative branch of the government” by the constitution

of the state.

From the days of the sweeping provision of the constitution of

Massachusetts which took effect October, 1780, and has remained

in force to the present day, the tendency has been to reduce the

powers of the legislatures, both by restrictions inserted in the

state constitutions and by the interpretation placed upon those

constitutions by the state courts. Strongest of all had been the use of

the fourteenth amendment by the state courts. This tendency to reduce

legislative power in the states to zero, degrading the state government

to a mere mechanism for laying and collecting taxes for the maintenance

of the judiciary, the militia and the state charities, reached its

culmination in the Illinois decision referred to. How far the pendulum

has swung back towards the position of Massachusetts in 1780 is shown

by the action of the people of Utah, by the decision of their Supreme

Court, and by the decision of the Supreme Court of the United States

sustaining that state court.

The people of Utah, instructed by the Supreme Court of Illinois

in 1895, showed by their action in 1896 that they had learned the

lesson. For, not content with such sweeping generalities as those

of the Massachusetts constitution, they incorporated into their new

constitution of 1896 an article dealing explicitly with the rights of

working people, as follows:

“Section 1. The rights of labor shall have just protection through laws

calculated to promote the industrial welfare of the state.

“Sec. 2. The legislature shall provide by law for a board of labor,

conciliation and arbitration, which shall fairly represent the

interests of both capital and labor. The board shall perform duties and

receive compensation as prescribed by law.

“Sec. 3. The legislature shall prohibit:

“(1) The employment of women, or of children under the age of fourteen

years, in underground mines.

“(2) The contracting of convict labor.

“(3) The labor of convicts outside prison grounds, except on public

works under the direct control of the state.

“(4) The political and commercial control of employees.

“Sec. 4. The exchange of blacklists by railroad companies, or other

corporations, associations, or persons is prohibited.

“Sec. 5. The right of action to recover damages for injuries resulting

in death shall never be abrogated, and the amount recoverable shall not

be subject to any statutory limitation.

“Sec. 6. Eight hours shall constitute a day’s work on all works or

undertakings carried on or aided by the state, county or municipal

governments; and the legislature shall pass laws to provide for the

health and safety of employees in factories, smelters, and mines.

“Sec. 7. The legislature, by appropriate legislation, shall provide for

the enforcement of the provisions of this article.”

In accordance with the provisions of section 7 of this article, the

Utah legislature proceeded to enact a statute, of which the essential

features are as follows:

“Section 1. The period of employment of workingmen in all underground

mines or workings shall be eight hours per day, except in cases of

emergency where life or property is in imminent danger.

“Sec. 2. The period of employment of workingmen in smelters and all

other institutions for the reduction or refining of ores or metals

shall be eight hours per day, except in cases of emergency where life

or property is in imminent danger.”

On June 26, 1896, one Holden was arrested under a warrant charging

him with employing a man to work in a mine ten hours in one day. The

court, having heard the evidence in the case, imposed a fine of $50

and costs, and ordered the defendant to be imprisoned in the county

jail for a term of fifty-seven days, or until the fine and costs

were paid. The case was immediately appealed, under habeas corpus

proceedings, to the Supreme Court of Utah, and the law was sustained.

The case was then carried to the Supreme Court of the United States,

which handed down its decision on February 28, 1898, Justices Peckham

and Brewer dissenting. The statute was again sustained. The position

of the Supreme Court of the United States was defined as to the

constitutionality of statutory restrictions upon the hours of labor

of adults; and as to the powers and duties of the states with regard

to the health and welfare of employees. The decisions of the courts

of Illinois, Nebraska and Colorado were quoted with disapproval.

But the great service rendered by this decision was its destruction

of the bogy-man with which state supreme courts had for years been

terrifying themselves, and each other, and timorous legislatures,

under the name of the fourteenth amendment to the Constitution of the

United States. Once for all, it is convincingly laid down by this

decision that statutes restricting the hours of labor of employees in

occupations injurious to the health will not be held unconstitutional

by the Supreme Court of the United States on the ground that they are

in conflict with the fourteenth amendment to the Constitution of the

United States.

The decision is so coherent, so closely knit, that injustice is done

by quoting isolated parts of it by way of illustrating the position

taken by the court. Yet certain portions of the decision are of such

vital import that they are here reproduced. Says the court: “The

Constitution of the United States, which is necessarily and to a large

extent inflexible, and exceedingly difficult of amendment, should not

be so construed as to deprive the states of the power to so amend

their laws as to make them conform to the wishes of the citizens, as

they may deem best for the public welfare, without bringing them into

conflict with the supreme law of the land.” And again the court says:

“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 individuals, had proved detrimental to

their interest, while, upon the other hand, certain classes of persons

(particularly those engaged in dangerous or unhealthful employments)

have been found to be in need of additional protection.” “While this

court has held that the police power cannot be put forward as an excuse

for oppressive and unjust legislation, it may be lawfully resorted to

for the purpose of preserving the public health, safety, or morals,

or the abatement of public nuisances, and a large discretion ‘is

necessarily vested in the legislature, to determine, not only what the

interests of the public require, but what measures are necessary for

the protection of such interests.’” Finally, the court quotes with

approval the most advanced position taken by the Supreme Court of Utah,

as follows: “Though reasonable doubts may exist as to the power of the

legislature to pass a law, or as to whether the law is calculated or

adapted to promote the health, safety, or comfort of the people, or to

secure good order, or promote the general welfare, we must resolve them

in favor of the right of that department of government.”

Having thus come to the rescue of the state legislatures and their

powers in general, the court deals with their duties in regard to the

health of employees. It sets up the general proposition that, “It is

as much for the interest of the state that the public health should be

preserved as that life should be made secure.” “In [some] states laws

have been enacted limiting the hours during which women and children

shall be employed in factories; and while their constitutionality, at

least as applied to women, has been doubted in some of the states,

they have been generally upheld. Thus, in the case of the Hamilton

Manufacturing Company (120 Mass., 283), it was held that a statute

prohibiting the employment of all persons under the age of eighteen,

and of all women laboring in any manufacturing establishment more than

sixty hours per week, violates no contract of the Commonwealth implied

in the granting of a charter to a manufacturing company, nor any right

reserved under the constitution to any individual citizen, and may be

maintained as a health or police regulation.”

It is refreshing to find the enlightened Massachusetts decision thus

authoritatively brought back into the “current of authority” from

which it was, as has been seen, thrust forth by the Illinois court

in Ritchie _vs._ the People. The Supreme Court of the United States

settles also the vital question: “Who shall decide which occupations

are sufficiently injurious to justify the restriction of the hours

of daily labor of persons employed in them?” On no points have state

courts been more arrogant, the Illinois court taking perhaps the most

extreme position of all in the following passage of its decision: “It

[the eight hours section of the state factory law] does not inhibit

their [women’s] employment in factories or workshops. On the contrary,

it recognizes such places as proper for them to work in by permitting

their labor therein during eight hours of each day. The question here

is not whether a particular employment is a proper one for the use of

female labor, but the question is whether, in an employment which is

conceded to be lawful in itself, and suitable for woman to engage in,

she shall be deprived of the right to determine for herself how many

hours she can and may work during each day. There is no reasonable

ground--at least none which has been made manifest to us in the

arguments of counsel--for fixing upon eight hours in one day as the

limit within which woman can work without injury to her physique, and

beyond which, if she work, injury will necessarily follow.”

The court was naturally not in a position to investigate the conditions

of work in the factories and workshops of Illinois. That is not its

function. But the legislature of 1893, which enacted the statute then

under consideration by the court, had been in a position to investigate

the conditions of manufacture throughout the state; it had appointed a

joint committee of the house and senate to investigate the factories

and workshops in operation; this committee had visited a great number

of establishments, and had taken a large amount of testimony from

employers, employees, physicians, visiting nurses, inspectors and

other witnesses, and had decided that, in view of the intensity of

work and the speed required in virtually all occupations, eight hours

did constitute a limit of hours of labor beyond which women could not

work without injury. All this no court can do; it has no apparatus for

such investigations; but this circumstance did not prevent the Illinois

court from usurping the right which the later decision of the Supreme

Court of the United States happily reassigns to the legislature.

Touching the powers of the legislatures in the matter of health and the

hours of labor, the Supreme Court of the United States says: “These

employments, when too long pursued, the legislature has judged to be

detrimental to the health of the employees; and, so long as there are

reasonable grounds for believing that this is so, its decision upon

this subject cannot be reviewed by the federal courts.”

And elsewhere the Supreme Court of the United States quotes with

approval the words of the Utah court: “It may be said that labor in

such conditions must be performed. Granting that, the period of labor

each day should be of reasonable length. Twelve hours per day would be

less injurious than fourteen, ten than twelve, and eight than ten. The

legislature has named eight. Such a period was deemed reasonable.”

The Illinois court had said: “The police power of the state can only be

permitted to limit or abridge such a fundamental right as the right 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_.”

In beneficent contrast with this sinister dictum, is the following from

the United States Supreme Court: “The legislature has also recognized

the fact, which the experience of legislators in many states has

corroborated, that the proprietors of these establishments and their

operatives do not stand upon an equality, and that their interests are,

to a certain extent, conflicting. The former naturally desire to obtain

as much labor as possible from their employees, while 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 or strength. In other words, the proprietors lay down the

rules, and the laborers are practically constrained to obey them. In

such cases self-interest is often an unsafe guide, and the legislature

may properly interpose its authority.” “The fact that both parties are

of full age and competent to contract, does not necessarily deprive the

state of the power to interfere, where the parties do not stand upon

an equality, or where the public health demands that one party to the

contract should be protected against himself. The state still retains

an interest in his welfare, however reckless he may be. The whole is no

greater than the sum of all the parts, and when the individual health,

safety and welfare are sacrificed or neglected, the state must suffer.”

This decision was not, of course, retroactive. It did not revive the

Illinois statute restricting to eight hours in one day the work of

female employees engaged in manufacture, enacted in 1893 and pronounced

unconstitutional by the state Supreme Court in 1895. It did, however,

by citing with disapproval virtually every proposition laid down by the

Illinois court in that decision, give satisfactory assurance that the

next eight hours law enacted in Illinois, if restricted in its terms

to occupations dangerous to the health of the employees, must stand as

good law, and cannot be pronounced in conflict with the Constitution of

the United States.

The decision of the Supreme Court of the United States in the case

of Holden vs. Hardy renders it unnecessary that, in future, statutes

restricting the hours of labor should be confined in their application

to women and minors, if they have to do with occupations injurious to

the human organism. The miners of Illinois and Pennsylvania might well

strive for statutory confirmation of the eight hours day which they

now enjoy only under terminable agreements based on arbitration. And

women in the cotton mills have only to show that the ever increasing

numbers of spindles and shuttles, and the ever increasing rate of speed

required of them by the improvement of machinery, are wearing out their

working energy, in order to be entitled to legislative restriction upon

their working hours under the reasoning of this admirable decision. To

women driving foot-power machines under the sweating-system, and to the

employees in countless other occupations, the same reasoning applies.

For the purpose of ascertaining which occupations are injurious, there

might well be comprehensive investigations by boards of health and

bureaus of labor.

The fact that the hours of labor of adult men can be restricted

by statute only in occupations proven injurious to the health, is

emphasized anew by the decision of the Supreme Court of the United

States in the case of Lochner _vs._ New York,[7] where the court

said: “The law must be upheld, if at all, as a law pertaining to the

health of the individual baker. It does not affect any other portion

of the public than those who are engaged in that occupation. Clean and

wholesome bread does not depend upon whether the baker works but ten

hours per day or only sixty hours a week. The limitation of the hours

of labor does not come within the police powers on that ground....

The mere assertion that the subject relates, though but in a remote

degree, to the public health, does not necessarily render the enactment

valid.... 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 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, but it is also

vastly more healthy than still others. To the common understanding, the

trade of a baker has never been regarded as an unhealthy one.”

In New York, an extension of the statutory right to leisure followed

directly upon the decision of the United States Supreme Court in the

case of Holden _vs._ Hardy. As has been shown elsewhere, the hours of

work of women over the age of twenty-one years, engaged in commerce

and manufacture, were unrestricted in that state until 1899, when the

legislature, encouraged by this decision, restricted to ten hours in

one day and sixty hours in one week, the labor of women engaged in

manufacture.

The Supreme Courts of Nebraska[8] and Washington[9] have sustained

statutes modeled on those of Massachusetts for the protection of women

in their right to leisure, the court of Washington citing the decision

of Massachusetts and the Supreme Court of the United States in support

of its opinion, and observing that the Illinois decision is the only

one by which an act of this kind has been declared unconstitutional by

a court of last resort.

In Missouri,[10] the provisions of the Utah law restricting to eight

hours the work of miners, adopted by the legislature and sustained by

the Supreme Court of Missouri, are now in force.

It has been related that the legislature of Colorado inquired of the

Supreme Court of that state whether the provisions of the Utah law

would be constitutional if enacted in Colorado, and was assured that

they would not be constitutional. In spite of this assurance, such

provisions were enacted by the legislature in 1899. In July of the

same year a case arising under the statute was carried to the state

Supreme Court and the law was pronounced unconstitutional.[11] The

people of Colorado then followed the example of the people of Utah and

amended the state constitution by the adoption of a section authorizing

the legislature to enact a provision similar to that which had been

pronounced constitutional by the Supreme Court in the case of Holden

_vs._ Hardy. This the legislature of Colorado has hitherto failed to do.

The history of Colorado repeats in a spectacular manner the experience

of Illinois. Statutory recognition of the right to leisure being

denied, working people have striven to attain by strikes what they

had failed to obtain by statute. The lawlessness which has disgraced

Colorado, like the lawlessness which has long disgraced Illinois, is

traceable ultimately to the denial of law by the authorities which

alone can constitute and establish it. In Illinois the Supreme Court

denied a right; in Colorado, the legislature. In both states the harm

done is irreparable. Lives have been sacrificed; violence has taken the

place of civic order; the public conscience has been outraged. But the

Supreme Court of the United States has indicated the right path; the

way is open; the remedy is at hand. Other officials can be elected; the

will of the people can be enforced.

The effort of the wage-earners is to establish the right to leisure; to

transmute the unemployed time of the dull season, with its attendant

demoralization and suffering, into regular daily leisure, with salutary

opportunity for rest, recreation, education, family life and self-help

by means of savings societies and all those agencies administered by

working people themselves which depend for their success upon the

regular attention of persons free from over-fatigue and irregular

pressure.

It is conceded that the right to leisure may be established by statute

for children and minors in all states and in all industries; for women

in some states in all industries; for both men and women in industries

dangerous to the health; and, finally, for employees of the federal,

state and municipal governments. It is, however, one thing to have

these points established in principle by the courts, and an entirely

different thing to achieve in practise the establishment of leisure

throughout the industrial life of the country, in accordance with that

principle.

Were statutes establishing the right to leisure already enacted and

in force in accordance with the principles clearly laid down by the

Supreme Court of the United States, the multitude of men, women and

children affected by them would be so great, the ramifications of

industry embraced would be so far reaching, that relatively little

would be left to the trade agreement with its precarious renewal and

threat of strikes to secure enforcement.

The immediate, practical lessons derivable from this weighty decision,

for all those who believe that the right to leisure should be

established by constitutional methods, appear to be briefly as follows:

1. Legislation restricting the hours of labor of employees in

occupations obviously injurious to the health will not be annulled by

the Supreme Court of the United States on the ground of conflict with

the fourteenth amendment to the Constitution of the United States.

2. The short working day may be established by statute in the various

states for all those occupations which are in themselves obviously

injurious to the health of employees, _and it rests with the state

legislatures to decide which are such occupations_.

3. Legislation limiting the hours of labor of employees need not be

restricted to women and minors, as had been the usage previously to

1898.

4. It is desirable to provide for such legislation by inserting

in state constitutions, wherever there is not already such an

enabling article, a provision similar to the general article of the

Massachusetts constitution, or to the special article providing for the

rights of labor which forms the distinguishing characteristic of the

new constitution of Utah.

It is always to be remembered that these things do not occur

spontaneously; they are the fruits of long and patient endeavor.

Adverse decisions in states have cumbered the earth with error,

discouragement, apathy, if not actual antagonism to this sane and

hopeful, though slow and difficult, method of ethical gain through

legislation.

The decision of the Supreme Court of the United States in the

case of Holden _vs._ Hardy did but open the way, by sustaining a

statute affecting a few hundred men in a state not highly developed

industrially and by affording a precedent national in its scope,

whereby may be done over again successfully work which, in several

states, had once been done in vain. Yet it assures ultimate success to

the long striving for the statutory enactment of the right to leisure.

State constitutional conventions must be held; state constitutions

modified; legislatures induced to act when authorized to do so; state

Supreme Courts brought to follow the precedent set by the Supreme Court

of the United States. Years must be consumed in the work of education

and legislation before the full fruits of this enlightened judicial

interpretation can be reaped and enjoyed by working people throughout

the Republic. Yet the ethical gain accruing at every step of the long

process is amply worth the exertion which it costs.

=Trade Agreements and Statutes.=--It is possible that at present a

larger number of people enjoy some degree of settled daily leisure

by means of trade agreements specifying nine or eight hours as their

day’s work than by reason of statutory provisions. Yet this is, from

the point of view of the welfare of the community, the less desirable

method of securing leisure, for several reasons. Leisure obtained

in this way rests upon no acknowledged legal right; it is gained by

struggle and rests upon the power of the organizations on both sides

to maintain the terms of an agreement, enforcing them by strike

or lockout; it is never final, but always subject to cessation at

the termination of the agreement; its existence for however long a

time establishes no legal right; at best it creates only a valuable

usage. Finally, this method of establishing some degree of settled

daily leisure is open only to employees in those occupations in

which the strongest type of trade organization develops; _i. e._,

in which strength and skill are both required, and women, children,

and unskilled or feeble men are kept out of the labor market by the

conditions of the trade itself. Such occupations are those of the

locomotive engineer, the typographer (printing involves not only skill

in setting type but strength to lift forms), the pilots of the ocean

harbors and the great lakes, certain branches of mining and ore

reduction, and the building trades, with some branches of manufacture.

The nature of the work selects men of certain qualifications, bodily,

mental and industrial, in all these cases; and such men are, in the

nature of the case, better able to make favorable terms for themselves

than can be made by the ten year old children of the Georgia cotton

mills, or the victims of the sweating-system in New York City.

For children and young girls, leisure assured by means of trade

agreements of their own is unthinkable. Such workers can derive it by

this method only indirectly and under exceptional circumstances, as

when a trivial minority of them are engaged at work which interlocks

with the work of men employed in a trade bound by such an agreement.

The maintenance of leisure by means of a trade agreement limiting the

number of hours in a day’s work, presupposes the permanent maintenance

of militant trade organizations of selected workers ready to meet on

their own terms any organization of employers. Indeed, for many years

the men in such occupations as have been indicated willingly relied

upon the strength of their organizations for obtaining leisure, as well

as wages and conditions satisfactory to themselves.

With all their well-recognized disadvantages as a method of obtaining

leisure, trade agreements remain indispensably necessary throughout

a wide range of industry, because, as appears from the foregoing

examination of the leading cases on the subject, statutory provision

for daily leisure for adult male workers in the employ of corporations

and private employers is limited, in the opinion of the Supreme Court

of the United States, to those industries which are, or may be,

injurious to the health. In the case of non-injurious occupations

leisure for men will have to be obtained and maintained through trade

agreements.

The right to leisure, deeply felt by working people to be a human

right which they are determined to assert, has been the subject of

ceaseless struggle and will continue so to be until its assured

possession by all the people takes it out of the realm of contention.

When, therefore, the Supreme Court of the United States limits the

power of the states to restrict the hours of work of adult citizens, to

occupations injurious to the health, it thereby relegates to the trade

organizations and their trade agreements the task of maintaining, as

a human right, by militant exertions, that leisure which it fails to

assure to a very large class of voters.

Strikes on the largest scale, in which the establishment of leisure

constitutes an important element of contention, are to be expected

as an integral part of industrial life so long as the Supreme Court

of the United States maintains the position that the freedom of

contract cannot be interfered with for the purpose of establishing by

statutory provision daily leisure for adult employees in non-injurious

occupations conducted by corporations and private employers. This

is the inevitable result of devolving upon trade agreements, in

the case of adult male employees not engaged under contract by any

government and not engaged in an injurious employment, the function

performed by statutory provisions in the case of other large classes

of working-people. In the occupations thus outlawed, the result of the

outlawry is the recourse to extra-legal means of asserting the human

right which has not yet become a statutory right.

The improvement of machinery is incessant; the output increases; every

occupation becomes more productive. On the other hand, the pressure

of competition weighs upon employers; dividends must be derived,

irrespective of the strain upon employees. Workingmen elect to receive

a part of their share of the increased productivity of their labor in

the form of a reduced working day, as added daily leisure; and, since

the court tells them that this cannot be done by legislation, they

have recourse to the one alternative, the trade agreement, enforced by

strikes.

The right to leisure is a human right in process of recognition as a

statutory right. Wherever it is established, the objects of struggle

between employers and employees are in so far reduced. Where, on the

other hand, courts have held that the right cannot be recognized and

established by statute, a ground of incessant contention is set up. In

such communities, peace may be enjoyed by the public when, in a given

trade, the inequality between the parties is such as renders a demand

for regular leisure utterly hopeless, as in the sweated-trades or

trades in which children and women are present in large numbers, _e.

g._, the Southern cotton mills. Or peace may temporarily exist when

both parties are so equally powerful that both fear warfare, and both

profit by truce. This peace, however, is always in danger of coming

to an abrupt end by the introduction of some new machine, or by the

immigration of some new and especially adaptable body of laborers.

Critics of the effort to establish by statute the right to leisure may

contend that the process is an intolerably slow one, that a statute,

also, is liable to termination by repeal, is as little stable and

permanent as a trade agreement and may prove excessively difficult

to enforce. Such critics can easily make out a strong case for their

contention. It is true that, after the constitution of a state

authorizes the legislature to act, the legislature may fail to do so,

as has been shown by recent events in Colorado. Or, a legislature may

enact measures which are illusory for want of penalties, or by reason

of exceptions such as that which weakens the restriction upon the

hours of labor of women in New York. Or there may be no provision for

the appointment of factory inspectors, as in the case of the recent

child-labor law of Alabama, which provides that children under the age

of thirteen years shall not be employed at night in cotton mills, but

makes no provision for officials to enforce the prohibition, and in

the case of the mercantile employees law of New York City, where the

Retail Dealers’ Association succeeded in 1898, and each subsequent

year, in having stricken from the municipal budget all appropriation

for the salaries of mercantile inspectors. Or, effective officers may

be removed and incompetents appointed in their places, as has happened

in many states.

Moreover, vigilance is needed even where workable statutes are enforced

by faithful officers, lest valuable measures be repealed after being in

force so long as to seem beyond all danger of attack. A case in point

is the repeal of the so-called “Fifty-Five Hours Law” in New Jersey,

which had remained unaltered upon the statute books from 1892 to 1903.

This statute provided that women and minors under the age of eighteen

years should not be employed in manufacture longer than ten hours in

one day and fifty-five hours in one week, or after six o’clock in

the evening of the first five days of the week and noon on Saturday.

Although this law had never been passed upon by the court of last

resort in the state, or enforced with vigor by the factory inspectors,

it had nevertheless been the means of assuring unusual leisure

to women employed in industries in which men maintained powerful

organizations and insisted upon compliance with the letter of the law,

thus facilitating their own success in demanding the same leisure.

The statute was so well regarded by a large number of employers, and

a larger number of employees, that its repeal, in 1903, came as a

distinct surprise.

Statutes restricting the hours of work of railway employees, in the

interest of the safety of passengers, have in some cases been so

defiantly and persistently violated by companies (holders of charters

and franchises) as to drive the employees into striking in order to

enforce the obedience of their employers to the terms of the law, when

recourse to the courts seemed to the workers not certain to bring forth

a decision sustaining the terms of the statute.

Yet, acknowledging the inevitable slowness of the process of statutory

recognition of the right to leisure, and admitting all the difficulties

and obstacles to be encountered in making progress and in maintaining

it when made, it nevertheless remains true that it is more dignified

for the working people and infinitely more wholesome for the community

to be enlisted in behalf of the enactment and enforcement of the law,

than engaged in striving to establish and maintain a right without

recourse to the law.

FOOTNOTES:

[6] These are Holden _vs._ Hardy (U. S. Supreme Court, Feb. 28, 1898);

Atkins _vs._ the State (U. S. Supreme Court, Oct. Term, 1903); Lochner

_vs._ New York (U. S. Supreme Court, April 19, 1905); and that older

decision which sustained the federal act of 1892 limiting to eight

hours the working day of persons employed under contract directly by

the Government of the United States.

[7] _Supreme Court Reporter_, Vol. 25, p. 539 _et seq._

[8] Wenham _vs._ the State, 91 Northwestern Reporter, 421. Statute

enacted Mar. 31, 1899.

[9] State _vs._ Buchanan, 70 Pacific Reporter, 52. Statute enacted 1901.

[10] State _vs._ Cantwell _et al._, 78 Southwestern Reporter, 569.

Statute enacted March 23, 1901.

[11] In re Morgan, 58 Pacific Reporter, 1071, July, 1899.

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