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.