iicoa. Dcpt. i^cou. 1A. ,\iain .L t Ovary PRINCIPLES OF LABOR LEGISLATION BY JOHN R. COMMONS, LL.D. PROFESSOR OF POLITICAL ECONOMY, UNIVERSITY OF WISCONSIN FORMER MEMBER INDUSTRIAL COMMISSION OF WISCONSIN AND UNITED STATES COMMISSION ON INDUSTRIAL RELATIONS AND JOHN B. ANDREWS, PH.D. SECRETARY OF THE AMERICAN* ASSOCIATION FOB LABOR LEGISLATION, EDITOR OF THE "AMERI- CAN LABOR LEGISLATION REVIEW" LECTURER ON SOCIAL LEGISLATION COLUMBIA UNIVERSITY PREPARED IN CO-OPERATION WITH THE AMERICAN BUREAU OP INDUSTRIAL RESEARCH HARPER & BROTHERS PUBLISHERS NEW YORK AND LONDON "~ . o, by Harper & ' Printed in Stat~> of America ~:ber, 1920 e-u CONTENTS PAGE PREFACE TO REVISED EDITION xi CHAPTER I: THE BASIS OF LABOR LAW 1. THE LABOR CONTRACT i (1) Industry 2 (2) Labor Law 3 (3) Politics . . 4 2. INDIVIDUAL RIGHTS 5 3. DUE PROCESS OF LAW 6 (1) Public Powers 10 a. Power to Preserve Peace and Execute the Laws . 10 b. The Taxing Power c. Guardianship n d. Eminent Domain 12 e. Proprietorship 13 f. The Police Power 13 g. Commerce Power and Federal Powers ... 15 h. Police Power and the Constitution . . . . 15 (2) Public Authorities 18 a. The Executive , 20 b. The Legislature . . . 21 c. The Judiciary 22 d. The Administration . 23 (3) Principles 24 a. Public Benefit 24 b. Equal Protection of the Laws 28 CHAPTER II: INDIVIDUAL BARGAINING ...... 35 i. THE LABORER AS DEBTOR 35 (1) Servile Labor 36 a. Slavery . 36 b. Serfdom 37 c. Peonr 1 " .... (2) From Master and S .Employer and Employee a. Indentured Service .t . V vi CONTENTS PAGE b. Apprenticeship 41 c. Contract Labor 42 d. Padrone System 46 e. Imprisonment for Debt 47 f. Wage Exemption 47 g. Homestead Exemption 48 h. Assignment of Wages 49 2. THE LABORER AS CREDITOR 50 (1) Time of Payment 50 (2) Place of Payment 52 (3) Basis of Payment 53 (4) Medium of Payment 53 a. "Living In" 53 b. Company Houses and Labor Camps .... 54 c. Company Stores 55 (5) Deductions 56 (6) Mechanics' Liens and Wage Preference .... 60 3. THE LABORER AS TENANT 61 (1) Classes of Agricultural Workers 61 a. Hired Laborers 62 b. Tenants 63 c. "Croppers" 63 (2) Agricultural Labor Legislation 65 4. THE LABORER AS COMPETITOR 68 (1) Protection against Immigrants 69 a. Induced Immigration 70 b. Exclusion of Orientals 74 c. The Literary Test 76 (2) Protection against Convict Labor 78 LEGAL AID AND INDUSTRIAL COURTS 81 (1) Private and Public Legal Aid 82 (2) Industrial Courts 86 CH VPTER III: COLLECTIVE BARGAINING 91 i. THE LAW OF CONSPIRACY 91 (1) Origins of Collective Bargaining 92 (2) Doctrine of Conspiracy 97 (3) Court Decisions 101 a. Strikes 101 b. Boycotts 107 c. Picketing 109 (4) Restrictions on Employers and Employees . . . 113 (5) Justification of True Collective Bargaining . . . 116 (6) Damage Suits 121 (7) English Law of Labor Disputes 123 lEDLVTION BY GOVERNMENT 125 (1) Definition of Terms 126 (2) Foreign Countries 128 CONTENTS vii PAGE (3) United States 136 a. State Legislation 136 b. Federal Legislation 138 3. COERCION BY GOVERNMENT 149 (1) Restrictions on Strikes and Lockouts 149 (2) Development of Coercive Intervention . . . . 152 a. England 152 b. Australasia 153 c. Canada and the United States 168 4. UNIONS OF GOVERNMENT EMPLOYEES 175 (1) Recognition of Unions 175 (2) Cooperative Employment 181 CHAPTER IV: THE MINIMUM WAGE 182 1. ECONOMIC BASIS 183 (1) Low Wage Scale 183 (2) Economic Weakness of Low-paid Workers . . . 185 2. HISTORICAL DEVELOPMENT 187 (1) Australasia 187 (2) Great Britain 190 (3) Other Countries Abroad 193 (4) The United States 195 3. STANDARDS 198 (1) Australia . 198 (2) Great Britain 200 (3) The United States 200 a. Definition of the Living Wage 200 b. Wage Losses from Unemployment .... 202 c. Profits of the Business 203 d. Substandard Workers 204 4. METHODS OF OPERATION 205 (1) Flat Rate Laws 205 (2) Wage Board Laws 206 5. RESULTS 210 (1) Changes in Wage Rates 211 (2) Changes in Wages above the Minimum . . . . 212 (3) Effect on Unemployment 213 (4) Effect on Industry 214 (5) Effect on Trade Unionism 215 (6) Effect on Efficiency 215 6. CONSTITUTIONALITY . . .216 CHAPTER V: HOURS OF LABOR 221 i. MAXIMUM HOURS 226 (1) Children 226 (2) Women 230 (3) Men 247 a. Public Work 248 b. Private Employment: (a) Transportation; (b) viii CONTENTS PAGE Mines and Tunnels ; (c) Factories and Work- shops 252 c. Constitutionality 262 2. REST PERIODS 271 (1) Daily Rest and Meal Times 271 (2) Night Work 273 (3) Saturday and Legal Holidays 277 (4) One Day of Rest in Seven 278 (5) Annual Vacations 284 CHAPTER VI: UNEMPLOYMENT , . 287 i. REGULATION OF PRIVATE EMPLOYMENT OFFICES . . . .291 (1) Abuses of Private Agencies 292 (2) Restrictive Legislation 293 ^ 2. PUBLIC EMPLOYMENT EXCHANGES 297 ffit (i) State and Municipal Offices 297 (2) Federal Activity 304 (3) European National Systems 308 3. SYSTEMATIC DISTRIBUTION OF PUBLIC WORK 312 (1) Emergency Work 313 (2) Adjustment of Regular Work 315 4. REGULARIZATION OF INDUSTRY 319 CHAPTER VII: SAFETY AND HEALTH 323 1. REPORTING 325 (1) Accidents 326 (2) Occupational Diseases 328 2. PROHIBITION 332 (1) Exclusion of Persons 333 a. Children: (a) Age Requirements; (b) Physical Requirements; (c) Educational Require- ments; (d) Special Problems in Enforcing Restrictions on Child Labor .... 333 b. Women: (a) Prohibited Employments; (b) Childbirth Protection 346 c. Men: (a) Physical Qualifications; (b) Technical Qualifications 349 (2) Prohibition of Substances or Instruments . . . 354 3. REGULATION 356 (1) Factories and Workshops 357 a. Machine Guards 357 b. Protection against Fire 359 c. Lighting, Heating, and Ventilation .... 360 d. Seats, Toilets, and Dressing-rooms .... 363 e. Protection from Infectious Disease .... 365 f. Tenement House Manufacture ... . 366 (2) Mines and Tunnels ning sed Air CONTENTS PAGE (3) Transportation 372 a. Navigation 372 b. Railroads and Street Cars 374 (4) Development of Standards 379 (1) Defects of Early Legislation 379 (2) The Method of Administrative Orders . . .381 CHAPTER VIII: SOCIAL INSURANCE 383 1. INDUSTRIAL ACCIDENT INSURANCE 386 (1) Rules of Employers' Liability 387 a. Duties of the Employer 387 b. Burden of Occupational Risks 388 c. Fellow Servant Rule 388 d. Contributory Negligence 390 e. Assumption of Risk 390 (2) Beginnings of Industrial Accident Insurance . . . 392 a. German System 392 b. Methods in Other Countries 394 c. Inclusion of Occupational Diseases . . . .395 (3) Compensation Legislation in the United States . . 397 a. Scope of Laws: (a) Employments Included; (b) Injuries Included; (c) Occupational Diseases 401 b. Scale of Compensation: (a) Medical Attendance; (b) Waiting Period; (c) Compensation for Total Disability; (d) Compensation for Par- tial Disability; (e) Compensation for Death 403 c. Rehabilitation 410 d. Method of Administration 410 e. Security of Payment 411 2. HEALTH INSURANCE 415 (1) Early Steps in Health Insurance 416 (2) Compulsory Health Insurance 417 (3) Maternity Insurance 422 (4) Need in the United States . 426 3. OLD AGE AND INVALIDITY INSURANCE 429 (1) Unassisted Old Age Insurance 430 (2) Assisted State Plans 43 1 (3) Compulsory Systems 432 (4) Straight Pensions 435 (5) The Problem in the United States 437 4. WIDOWS' AND ORPHANS' INSURANCE 439 (1) Voluntary Life Insurance 439 (2) Compulsory Insurance 440 (3) Mothers' Pensions 441 5. UNEMPLOYMENT INSURANCE 442 (1) Voluntary Out-of-Work Benefits 442 (2) The Ghent System 443 (3) Compulsory Unemployment Insurance .... CONTENTS PAGI r r AFTER IX: ADMINISTRATION 449 1. THE EXECUTIVE 450 2. THE LEGISLATURE 453 3. THE JUDICIARY 458 4. THE INDUSTRIAL COMMISSION 465 (1) Administrative Investigations 466 (2) Representation of Interests 479 (3) Civil Service 486 (4) Bill Drafting 488 5. PENALTIES AND PROSECUTIONS 490 6. COOPERATION BY PRESSURE 498 SELECT CRITICAL BIBLIOGRAPHY 501 BLE OF CASES CITED 527 INDEX 537 PREFACE TO REVISED EDITION IN January, 1916, when this book was first offered to citizens and students, the United States possessed for its half -million civil employees in case of injury ' ' the worst compensation law in the world," and no protection at all for their old age or in- validity. There was no Federal legislation against child labor, and little against excessive hours in railroading. The country had never had a unified system of public employment offices. Restoration to earning power of industrial cripples had hardly been thought of. Agitation for universal workmen's health insurance was just beginning. Regulation of shop conditions by administrative orders had still to win wide acceptance. Such important matters as the legal minimum wage, hour legislation for men in general employments, and even work- men's compensation for accidents, were trembling in the scales of the United States Supreme Court. The four and a half intense years which have intervened were not without their quickening influence in the field of labor legislation. A new sense of the worth, perhaps also of the power, of the ordinary man and woman of toil has shot through the thinking of lawmakers. The result is written large upon the pages of the statute books. The United States govern- ment has now a compensation law for its own employees enacted in 1916, the year of a presidential election which stands as a model to the states and to other countries. Rail- roading has been put upon the basic eight-hour day. Federal restrictions on child labor, based on the power to regulate interstate commerce, were hardly declared unconstitutional when they were reenacted under the taxing power. For a period during the war a national employment service was ex- tended throughout the country. Finally, 1920, another presi- dential year, resulted in the adoption by Congress of a Federal civil service retirement act and of a measure for government aid to states adequately providing for the retraining of indus- trial cripples, Meanwhile, Supreme Court decisions have sus- xii PREFACE . tained hour legislation for men, minimum wage laws, and sev- eral different types of workmen's compensation acts. In the same four and one-half years the states have not been idle. Twelve new commonwealths enacted workmen's com- pensation laws, leaving by 1920 only six which had not taken this first step in a comprehensive social insurance program. Commissions to study health insurance were established in eleven states, and in New York a health insurance bill backed by the trade union movement was passed by the Senate. Three new states adopted the eight-hour day for women, and five jurisdictions enacted minimum wage legislation. Other progressive laws, as well as amendments gradually strength- ening existing statutes, and a general tightening up of ad- ministrative supervision, have followed one another rapidly. Despite a few setbacks, the trend has been strongly toward more thorough protection of the lives and welfare of the wage-earning population. In all this forward development it is only the details of the labor code which have changed. The fundamental principles on which the legislation is based remain as they were. No important stand taken in the first edition of this book has yet had to be modified. For additional details of statutes enacted year by year, the reader is referred to the annual Review of Labor Legislation, published by the American Association for Labor Legislation. This Review, it may be added, is so arranged as to serve as a convenient supplement to the present work. For assistance in checking up the new experience and in bringing the text down to date, grateful acknowledgment is due to Margarett A. Hobbs, Olga S. Halsey, Irene Sylvester Chubb, and Solon De Leon, of the staff of the American Asso- ciation for Labor Legislation; to Edwin E. Witte, secretary of the Industrial Commission of Wisconsin; to Mrs. Glenn Turner, of the Wisconsin Legislative Reference Library; and to Prof. Don D. Lescohier, of the University of Wisconsin. JOHN R. COMMONS JOHN B. ANDREWS June, 1920. PRINCIPLES OF LABOR LEGISLATION PRINCIPLES OF LABOR LEGISLATION CHAPTER I THE BASIS OF LABOR LAW Modern industry is mainly a matter of buying and selling. Scarcely any person lives on the things which he alone pro- duces with his own property. Formerly the protection of his person and his physical property was the principal part of the law. Now the protection of that intangible property which arises through buying and selling and is defined in the law of contract, occupies the attention of lawmakers, courts, and the administrative Authorities. i. THE LABOR CONTRACT The labor contract is one of several kinds of contract, which until recently has differed from the others but little in the eyes of the law. Like the others it originates in an agreement, implies a promise, creates rights and duties, and is enforced, if need be, by the power of the state. But the labor contract, in course of time, has come to be recognized as something peculiar. When a bushel of wheat ight and sold, when a factory or farm is transferred, a banker receives deposits or lends his credit, when a ation issues stocks or bonds, the rights and duties created :y can be fulfilled by delivering something external and 2 PRINCIPLES OF LABOR LEGISLATION unhuman. But when a laborer agrees to work he must deliver himself for a time into the control of another. He earns his living, not by working upon his own property, but by working upon the property of another, and by accepting all the con- ditions he finds there. And, if he has no property of his own sufficient to fall back upon, he is under an imperious necessity of immediately agreeing with somebody who has. This pe- culiar relation between a propertyless seller of himself, on the one hand, and a propertied buyer on the other, coupled as it is with equal suffrage of both in the politics of the country, has gradually acquired recognition as something sufficiently important for the government to take notice of. While the courts and law books have dealt with the labor contract as similar to other contracts, legislation goes behind the legal face of things and looks at the bargaining power which pre- cedes the contract. It distinguishes the price bargain, the investment bargain, the real-estate bargain, and others, from the wage bargain. The former are dealings between property- owners. The latter is a bargain which involves not only wages, but also hours of labor, speed and fatigue, safety and health, accident and disease, even life itself. Unemployment is failure to make such a bargain; immigration, child labor, education, prison labor, collective bargaining, and so on, are conditions which determine the bargaining power of the laborer. Every topic in labor legislaticm is a phase of the wage bargain, and it is because a large class of people have come to depend permanently, not on their property or re- sources, but on these bargains with property-owners, that labor legislation has significance. This spectacle of the free laborer, without property but with the ballot, bargaining for his livelihood but electing his rulers, is something new and unaccustomed, measured by the life of nations. It has come about through what may be called in- dustrial, legal, and political changes. (i) Industry Scarcely a generation has passed since the natural resc of the country were sufficiently free to permit people without THE BASIS OP LABOR LAW 3 property to acquire ownership merely by labor. The home- stead laws, culminating in 1862, may be looked upon as early labor legislation, for they were intended to provide "free land" by preventing the public domain from falling into the hands of capitalists and slave-owners and so to furnish an out- let to laborers from the East. Workmen who could not be- come farmers or miners could become tradesmen and inde- pendent mechanics in the new towns. But since the lands have been closed by occupation, and their values have in- creased, money or credit is required to purchase them. This means that laborers without capital must seek capitalists to employ them. In 1869 the first Pacific railway was completed, and im- mediately Chinese coolies made their appearance in Massa- chusetts as strike-breakers, and the manufactured products of Massachusetts contributed to unemployment in California. The railway and steamship have made labor almost as mov- able as capital, and any bargaining advantage which wage- earners have in one section of the country is quickly levelled by migration. Huge factories and corporations were almost unknown a generation ago, but now the United States Steel Corporation has some 200,000 employees, and single establishments have thousands and ten thousands. The special bargaining power of skilled mechanics is levelled down to that of the lesser skilled. Thus the three industrial factors of closed land, labor mobility, and large scale production have produced a class permanently dependent xm wages. (2) Labor Law -* When land and natural resources were free, labor was not always free. Slave labor in the South, indentured labor and apprenticeship in the North and South, contract labor from abroad, were based on legal -devices by which the laborer could be kept from running away. Not until the enactment of the thirteenth amendment, fallowing the Civil War, did slavery and involuntary servitude, except as a punishment 4 PRINCIPLES OF LABOR LEGISLATION for crime, become everywhere illegal. 1 The labor contract henceforth has its peculiar significance. Although in theory it is like other contracts, yet it cannot in fact be enforced. The laborer cannot sell himself into slavery or into involun- tary servitude. He retains the right to change his mind, to quit work, to run away. Certain other contracts can, in the absence of any other sufficient remedy, be enforced by the courts by compelling "specific performance." 2 But specific performance of the labor contract is involuntary servitude. Business contracts, if violated, are ground for damages which the court orders paid even to the extent of taking all of the business property of the debtor. The labor contract also, if violated, is ground for damages, but for the court to order damages paid out of labor property would be to order the laborer to work out the debt. This is involuntary servitude. Hence the employer is left with the empty remedy of bringing suit against a propertyless man. He can protect himself by making contracts which he also can terminate at any time by discharging the workman without notice. Thus the labor contract becomes, in effect, a new contract every day and hour. It is a continuous process of wage bar- gaining. It carries no effective rights and duties for the future and is as insecure as it is free. After land has ceased to be free the laborer becomes free. Closed resources and freedom with insecurity produce in time a permanent class of wage-earners. (j) Politics In the northern states the suffrage was granted to all male wage-earners during the years preceding 1845, by removing the property qualifications. 3 This was as much as forty to Constitution of the United States, Amendments, Art. XIII: "SEC. I. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly con- victed, shall exist within the United States, or any place subject to their jurisdiction. "Sec. 2. Congress shall have power to enforce this article by ap- propriate legislation." The exception in the case of the seaman's contract will be noted later. 2 See Andrews, American Law, 1908, Vol. I, pp. 582, 1586. 3 Rhode Island was the only northern state that retained the property qualification. THE BASIS OF LABOR LAW 5 sixty years in advance of other nations, and was, in fact, the first experiment in the world's history of universal admission of the propertyless laborer to an equal share in government with the propertied capitalist or employer. A similar experi- ment was made in the South after the slaves were freed by war. Henceforth the laborer not only shares in electing the legislature that makes the law, but he shares in selecting the judges who interpret it and the governors, factory inspectors, sheriffs, marshals and constables who enforce it. The labor contract and the wage bargain become as much a question of the control of politics as they are of large-scale industry and the mobility of labor. Wherever property-owners or em- ployers can deprive the laborer of his suffrage or can control his vote, there they can more effectively control his bargaining power. He may be disfranchised, as in the South, or intimi- dated, as in some towns controlled directly by corporations, or manipulated and bought, as in towns controlled indirectly through the political "machine." So the struggle for the suf- frage, begun ninety years ago in the North, renewed in the struggle of twenty years ago for the secret ballot, and kept up in the struggle against political corruption, is both a cause and a consequence of the appearance of wage-earners as a class in modern industry. 2. INDIVIDUAL RIGHTS Federal and state constitutions contain the fundamental laws and create the authorities of government with the power to interpret, amend, and enforce them. The Declaration of Independence and most of the state constitutions declare that all men are created equal. Prior to the Civil War certain of the southern states declared only that all freemen are equal. Those constitutions were afterward changed to read all men are equal. Some constitutions say that they are "equally free and independent." If they are equal, they have equal rights. Some of these rights are declared to be natural, essential, in- defeasible, inalienable. Among the inalienable rights men- tioned in different constitutions are life, liberty, the pursuit of happiness, acquiring, possessing and protecting property, 6 PRINCIPLES OF LABOR LEGISLATION reputation, and enjoyment of the gains or proceeds of a man's own labor. 1 The federal constitution guarantees certain means for pro- tecting these rights, and prohibits certain measures that vio- late or impair them. Among the protective measures are the writ of habeas corpus, trial by jury, a republican form of gov- ernment, freedom of speech or of the press, the right peaceably to assemble and to petition the government for a redress of grievances, the right to keep and bear arms, security against unreasonable search and seizure of persons, of houses, papers or effects, indictment by a grand jury, speedy and public trial, compensation for property taken for public use, due process of law, equal protection of the laws. Among the pro- hibited measures are bills of attainder, ex post facto laws and laws impairing the obligation of contracts. Finally, the enunciation of certain rights cannot be construed to deny or disparage others retained by the people. These restrictions, however, with the exception of those insuring equal protection of the laws and the obligation of contracts, are binding on Congress and not on the states. The fourteenth amendment prohibits any state from denying due process of law and equal protection of the laws, but under the decisions of the courts this protection does not extend to other rights guaranteed in the early amendments to the constitution, which, as has just been said, are protected only against infringement by Congress. 2 J The Declaration of Independence is "read into" the constitutions, where it says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness." Twenty-eight state constitutions declare that men are naturally equal. Five restricted this to "freemen" before the Civil War and afterward changed the phrase (Kansas, 1858). Three states assert the equality of all men framing a "social compact." Thirty-five states have clauses embodying the doctrine of natural rights. The right of acquiring property, by which contract is understood, is claimed as an inalienable natural right by twenty-six states. Three states in- clude the right to reputation, which may be considered as a kind of property. The enjoyment of the gains of a man's own industry, or of the proceeds of his labor, is an inalienable right in two states. Kansas specifies the right to control over one's own person. Montana, when mentioning the right to seek and obtain safety and happiness, adds the proviso "in all lawful things." 2 Willoughby, Constitutional Law of the United States, 1910, Vol. I, pp. 175 ff. THE BASIS OF LABOR LAW 7 If certain rights, such as life, liberty, and property, are strict- ly and literally "inalienable," then they cannot either be given away by any person or taken away by any other person or by government, either by coercion or by persuasion, either by violence or by voluntary sale and compensation. If the owner sells them, they are worthless to the buyer, because he gets no title. Of course, it follows that these rights were never considered strictly "inalienable." Only an impossible anarchist could believe this. The fourteenth amendment partly clears the atmosphere. "Privileges and immunities" are substituted for inalienable rights. Life, liberty and prop- erty can be taken provided it be done according to "due proc- ess of law." "Equality" becomes "equal protection of the laws." In other words, rights become "relative," not "abso- lute," alienable but protected. But, if rights are relative, then their meanings and defini- tions are liable to change when the relationships to which they refer happen to change! The rights of property are de- nned in several constitutions as the right of acquiring, possess- ing and protecting property. These were the significant points in the definition when people were isolated, as they were in colonial and pioneer times. At that stage, their main con- cern was in getting and holding physical property, like lands, crops or even human beings, if the definition of property in- cluded slaves. - But in modern society, based, as it is, mainly on buying and selling, the right to withhold property from others becomes significant. It is this that protects the in- dividual in his power of bargaining his power, protected by law, -to hold back and wait until an agreement can be reached upon the exchange value of the property before permitting others to take it or use it. This right to withhold property is like the laborer's right to withhold his labor, by refusing to work or by quitting work. But in the case of the laborer this is also " liberty "- a "personal" right rather than a "property" right. It is his right to withhold his services from the use of others until their value can be agreed upon. This is the legal basis of his wage bargain. Hence property and liberty change places and merge their meanings when industry changes from the agricultural stage 8 PRINCIPLES OF LABOR LEGISLATION of production for self to the modern stage of bargaining with others. The wage-earner's "property" becomes his right to seek an employer and to acquire property in the form of wages; his property in the sense of liberty is his right to refuse work or to quit work if the conditions are not satis- factory. The employer's "property" is, in part, his right to seek laborers and acquire their services; his property, in the sense of "liberty," is his right to run his business in his own way, that is, in part, to withhold employment or to dis- charge the laborer if the bargain is unsatisfactory. These definitions of property rights are evidently quite dif- ferent from the older ideas of property in physical things, such as lands, buildings, machinery or slaves. They signify rights of buying and selling, of access to a market. They are "in- tangible" property, and not "tangible." They are like the "good will" of a business. They are denned as "property" because they are necessary to give to things and services that value in exchange which in modern industry depends as much on selling them as it does on "producing" them. Only within the past half-century have courts and legis- latures distinguished and protected such intangible property as good will, trade marks and trade names, based on the right of access to a commodity market, and still more re- cently has "access to a labor market" been treated in effect as a property right of both the laborer and the employer, in addition to a personal right. 1 Not merely the contract after it is made is property, but the right to be unhindered by others in order to make a labor contract is a property right. It is "intangible" property both of the laborer who seeks em- ployers and of the employer who seeks laborers. It is in- tangible because it is merely the act of offering and yet with- holding services or commodities. It is property and becomes capital in the sense that it is the power of getting value in exchange. Just as the employer's property is both his phys- ical factory and his intangible business, so the laborer's property is both his physical body and his intangible labor. This "intangible" property has come to mean a part of what 1 See also Willoughby, Constitutional Law, Vol. II, p. 872; Hall, Constitutional Law, 1914, pp. 134, 135; "Doctrine of Conspiracy," P- 97- THE BASIS OP LABOR LAW 9 was formerly known as personal liberty. It is that kind of liberty that has money value. It gives value alike to the laborer's labor and the employer's business. If meanings of property and liberty change with changes in industry, so does the meaning of equality. Equality for the colonist and the pioneer signified mainly equal right to acquire property through labor now it signifies equal right to acquire it through bargaining. But where bargaining power on the one side is power to withhold access to physical prop- erty and the necessaries of life, and on the other side is only power to withhold labor by doing without those necessaries, then equality of rights may signify inequality of bargaining power. The gradual recognition of inequalities of waiting power has required changes to be made in the legal means of protecting equality, and these changes underlie the history of labor legislation. They occur within limits prescribed by "due process of law." 3. DUE PROCESS OF LAW The constitutions, which declare private rights inalienable, yet provide methods and standards both to abridge them and to protect them. A right has two sides. It is a right of one and a duty of another, or of all others. One person signs a note agreeing to pay $20 to another person. The second per- son has a right to receive $20 the first is under a duty to pay it. One person owns a piece of land. He has a right to use it as he pleases all other persons are under the duty to keep off and let him alone. To protect the rights of one is to en- force the duties of others. If a right of one is abridged or reduced, the corresponding duty of another or of all others is reduced. If a debt is reduced from $20 to $10, both the right to receive and the duty to pay are reduced. If a person's right to use his land as he pleases is restricted, then the corresponding duties of others are reduced. On the other hand, a person's duties are just so much subtracted from the total of his rights, and so to reduce the amount of his duties is to enlarge the total amount of his rights. To reduce the rights of one is to enlarge the corresponding rights of others. Here must be noted the distinction already made between io PRINCIPLES OF LABOR LEGISLATION the labor contract and the wage bargain. The two may be diametrically opposed. From the standpoint of the wage bargain, if an employer's right to require a woman to work unlimited hours is reduced, then the woman's duty is conse- quently reduced and her rights enlarged. But, from the standpoint of the labor contract, she loses the right to con- tract for unlimited hours. This may be a mere fictitious right for her, existing only in the eyes of the law, whereas it is in reality the right of the employer to compel her to work. From the legal standpoint her rights are abridged from the economic standpoint they are enlarged. Likewise, from the legal standpoint the employer's duty is reduced when her hours of service are reduced. From the economic standpoint, his duty may be increased, if her bargaining power is in- creased. It is this contradiction between the labor contract and the wage bargain that labor legislation attempts to reconcile. 1 The state exercises the great and sovereign power of en- larging and abridging rights and duties without consent of the parties. This power is intended, under our constitutions, to be safeguarded most minutely and accurately. The safe- guards are developed with reference to an all-inclusive term, "due process of law." Due process of law, along with the provisions of the con- stitutions, determines both the substance and the procedure of government in three principal aspects: first, the public powers, or the powers of government under which authority is granted to protect, enlarge or abridge rights and duties; second, the public authorities, or the powers of officials acting within that authority; and third, the principles, standards or "maxims" that determine the limits beyond which public powers and public authorities shall not go. Each of these aspects affects labor legislation. (i) Public Powers a. Power to Preserve Peace and Execute the Laws. Govern- ment exists, first of all, to enforce the duty to keep the peace. 1 See "Public Benefit," p. 24; "Equal Protection of the Laws," p. 28; "Maximum Hours, Women," pp. 244-247. THE BASIS OF LABOR LAW n To do this it may use force. It is the custodian of physi- cal coercion and the authority that may threaten violence. Only in actual self-defense or in extreme urgency has an in- dividual the right to resort to violence. He must confine himself to persuasion in every other case. Groups of individ- uals may go on strike, may get together for free discussion, or for agitation and joint action, but they must assemble and act peaceably. Even though they suffer the greatest in- justice they must not go beyond the duty of obedience to law and order. The authorization, or "power," of the state to use violence in order to execute the laws, to protect person and property, to punish for crime, is its first and highest justi- fication, without which no other power could exist, and all government would be impossible. This is its exclusive au- thority, and it cannot compromise the question or permit private violence, except at the peril of its own existence. Under the justification of preserving the peace and executing the laws, the state may deprive individuals of life, liberty, or property without consent or compensation. b. The Taxing Power. The taxing power is an authoriza- tion under which government takes private property for pub- lic purposes without compensation. By this authority 'the state provides for the most fundamental legislation for or against labor. It provides free schools, compulsory education for future workers, and pays the salaries and expenses of all officials who enforce the labor laws. A labor law is defeated as surely by voting against taxes to enforce it as by voting outright against the law itself. But the taxing power is used, not only for revenue, but also for purposes which otherwise are justified under the police power. A tariff on the products of foreign pauper labor is designed to strengthen the bargain- ing power of American labor. A tax on poisonous phosphor- us matches is placed so high that it brings in no revenue at all, and serves only to protect the health of employees. Under our form of government the police power belongs to the states and not to the federal government. But the federal govern- ment does, under the justification of the taxing power, what the states might do under the police power. c. Guardianship. The state is the universal trustee or guardian, and exercises the remnants of the authority which PRINCIPLES OF LABOR LEGISLATION march had as par ens patrice, the "father of his country." In mediaeval times the property of a chief tenant reverted at death to the king, and the children became the wards of the king, for the king's benefit. Now the state is trustee for the benefit of the children and the people. , This power justifies child labor legislation. In the early law of patria potestas, or "power of the father," the natural father was the owner of his child, as he was owner of his wife, lands, slaves and chattels. It was the child's duty to obey. Now, the child has many rights against its parent, and, since it is unable to enforce these rights itself when the parent violates them, the state intervenes as its guardian on behalf of the people of the future. 1 It takes the child away if necessary; it deprives the parent of his right to the child's earnings by prohibiting its .employment or by reducing its hours of labor; it enforces the parent's duty of education by compulsory school attendance. Patria potestas yields to the authority of parens patrice. This authority of the state is nowadays treated as a branch of the police power. 2 As such, it is a justification for an ex- treme use of the police power not permitted in other cases. It deals with children, unable to make bargains for themselves. The police power primarily interferes with the bargains of adults. Restrictions which the courts would not permit under other classifications within the police power are un- questionably approved when the justification of guardianship is merged with that of police. d. Eminent Domain. The state may be an owner of prop- erty and business, like a private person. It may acquire ownership by various methods, all of which rest ultimately on its sovereign power of coercion. Some of its properties are acquired by conquest. Others are purchased by voluntary bargain; others, by compulsory bargain, under the power of eminent domain. In either case the power of taxation may furnish the funds. Eminent domain is a justification of the state in taking property from its own citizens without their consent. It dif- fers from the other powers in that it applies to an individual rather than to a class, and therefore our constitutions require a See Andrews, American Law, pp. 652-654, and cases there cited. 2 Freund, Police Power, 1904, pp. 246-253. THE BASIS OF LABOR LAW 13 that compensation be made when property is taken. The individual has no inalienable right to withhold his property from the state, if the state desires it for a public purpose. But the constitutions protect the individual against the state by requiring just compensation. e. Proprietorship. Whether it acquires physical property or not, the state, in its various divisions of town, city, county, state, and nation, becomes an employer of thousands of wage- earners. It fixes their wages, hours and conditions of labor according to its own ideas as determined by its legislattires, executives, or courts. It is not restricted, as it is when exer- cising the police power, because it is not taking away private property (except perhaps as it falls back on the taxing power to pay the wages). Consequently, the American state, under universal suffrage and the power of proprietorship, or public ownership and operation of public business, supported by the taxing power, has gone far ahead of private owners in raising wages, shortening hours and improving the conditions of its employees. Even contractors, or private employers who work for the state, are required, under laws that provide for "fair wages," as in England, or for the "prevailing rate of wages," as in America, to pay higher wages or observe shorter hours than they might in their work for private capitalists. 1 /. The Police Power. The police power is an indefinite authorization for the American state to abridge liberty or property without consent or compensation in addition to its other more definite powers. An individual is sick with diph- theria. The state draws the line of quarantine beyond which his family and friends are deprived of their liberty of move- ment. Valuable animals have the foot and mouth disease. The state may order them to be shot and buried without con- sent or compensation. A public utility corporation has the valuable bargaining power of fixing its prices for gas, elec- tricity, water, or transportation, and withholding service if the price is not paid. The state reduces the price and compels the company to continue or increase the service. The em- ployer has valuable rights in his defenses of assumption of risk, fellow servant, and contributory negligence in suits 1 See "Historical Development of the Minimum Wage, United States," p. 195; "Maximum Hours, Men," p. 251. i 4 PRINCIPLES OF LABOR LEGISLATION brought against him for damages caused by accident. The state takes away his defenses and increases by so much the value of the rights belonging to his employees. 1 Other examples might be given. The bulk of labor legislation by the states looks for authorization to the police power. The police power in the United States differs from other powers in the miscellaneous and indefinite range of subjects that it may cover. It is defined rather by what it does not cover than by what it does. It differs from the taxing power in that it reduces the owner's liberty to use, acquire, or own property, rather than the revenues derived from it. It dif- fers from eminent domain in that it applies to a class rather than to an individual and does not require compensation to be made. While it includes guardianship, it differs from it in that it abridges or enlarges the rights of adults and full citizens instead of those of children. It differs from public ownership and operation, or proprietary power, in that it abridges or enlarges the powers of private persons over their own persons or property instead of the power of tne state over its own property or business. It differs from the power to use violence in order to keep the peace and execute the laws, in that it is one of the justifications or reasons advanced according to which the state is authorized to enact the laws themselves, rather than the physical power to enforce them after enactment. It is the police power, not the police man. The other powers of the state, previously mentioned, are in theory definitely limited. Either they accomplish only a specific object of government, such as conquest, peace, the execution of laws, the acquisition of revenues, or the purchase of property, or they extend only to a limited class of people, such as children or public employees. But, in addition to these objects and persons, there are those large an:l indefinite purposes of public safety, health, morals, welfare, and pros- perity, and those many but indefinite classes of producers and consumers, buyers and sellers, employers and employees, who often are restrained by government under the police power. Moreover, these purposes and classes are continually changing 1 See "Industrial Aecident Insurance," p. 387. THE BASIS OF LABOR LAW 15 as industry changes from agriculture to commerce, or as prop- erty changes from physical things to bargaining and con- tracts, or as population becomes more congested and people interfere with one another, or as public opinion regarding rights and duties, morals and welfare, advances from igno- rance to intelligence, from servitude to liberty. It is the police power, for the most part, that affords, in the case of the state governments, that elastic justification by which the state abridges or enlarges liberty or property without compensation, in order to achieve a newly recognized public purpose through a newly recognized class of persons or things. g. Commerce Power and Federal Powers. The police power is not isolated from the other powers. All of them are but different ways of looking at the single power of sovereignty. But, under our system of government, sovereignty is divided between the federal government and the state governments. The federal government has specific delegated powers of taxa- tion, of regulation of foreign and interstate commerce, while the states have the taxing power, and, in addition, the "police power. ' ' But the federal government uses its delegated powers to accomplish the same purposes that the states accomplish with their reserved police power. The taxing power is used by the federal government, not merely to secure revenue, but to protect industry and labor against foreign competition, or to suppress state bank-notes, colored oleomargarine, or poison- ous phosphorus matches. The "commerce" power is used to regulate railroad rates and services, to restrict hours of labor and to require the adoption of safety devices by railroad or steamship companies. New lines of legislation protecting labor, such as child labor and workmen's compensation, if adopted by state governments, are justified by the police power if adopted by the federal government, they are justified by the taxing power or the commerce power. Yet all powers are but the single power of sovereignty split up to fit the constitu- tional divisions of government. 1 h. Police Power and the Constitution. From the foregoing, 1 For detailed history of the conflict between the commerce and police powers, see Hastings, "The Development of Law as Illustrated by the Decisions Relating to the Police Power of the State," in Proceedings of the American Philosophical Society, 1900, Vol. XXXIX, p. 349. 1 6 PRINCIPLES OF LABOR LEGISLATION it will be seen how impossible it is accurately to define the police power, the taxing power, or the commerce power. Com- paring the police power with the principles of the common law Freund says 1 the state "exercises its compulsory powers for the prevention and anticipation of wrong by narrow- ing common-law rights through conventional restraints and positive regulations which are not confined to the prohibi- tion of wrongful acts. It is the latter kind of state con- trol which constitutes the essence of the police power. The maxim of this power is that every individual must submit to such restraints in the exercise of his liberty or of his rights of property as may be required to remove or reduce the dan- ger of the abuse of these rights on the part of those who are unskilful, careless, or unscrupulous." Describing this power as developed under American institu- tions, Ely says: 2 "It is that power of the courts committed to them by American constitutions whereby they must shape property and contract to existing social conditions by settling the question of how far social regulations may, without com- pensation, impose burdens on property." Comparing it with other powers of government, Hastings says: 3 "It is not necessary to adopt Treitschke's oft-repeated declaration, that the state is force, in order to conclude that the 'police power' is a fiction. Every judge whom we have seen attempt to analyze it finds in it Madison's 'indefinite supremacy' of the state. The doctrine of faculties and separate powers of the state may not be as essentially absurd as Treitschke thinks, but in our case the term is certainly a mere abstract and collective one for the state, where regarded as employed in certain functions." Hastings also says that the police power is "a branch of constitutional law peculiar to countries having legislatures with limited power. It is an outgrowth of the American conception of protecting the in- dividual from the state." 4 We may not say that the police power is a fiction, for it is a necessary part of the reasoning by which, under our federal 1 Police Power, p. 8. 2 Property and Contract in Their Relations to the Distribution of Wealth, 1914, Vol. I, p. 220. 3 Hastings, op.cit.,p. 349. *Ibid., p. 360. THE BASIS OF LABOR LAW constitution, the distinction is made by the courts between those powers that belong to the states and those that belong to the federal government. Yet, from another point of view, it is a fallacious distinction if it pretends to assign to the states a different kind of power from that exercised by the federal government. We have just said that the federal government accomplishes, under the name of "taxing power" or "com- merce power," what the states accomplish under the name of police power. While the refinements of legal logic may seem to make these powers different, they are identical from the standpoint of the kind of legislation and the public purpose which they justify. The police power has sometimes narrowly been held to be limited to matters of health and morals. But legislatures and Congress refuse to be limited in this way. They regulate the bargaining power of individuals and cor- porations where no justification can be found in the protec- tion of health and morals. From this standpoint the theory of the police power is used by the courts to determine how far the state legislature may be permitted to go. But they use similar standards or principles to determine how far Con- gress may go in using the taxing power and the commerce power. Hereafter, for our purposes, in speaking of the police power, we shall use the term in this broad sense, to imply all the >wers of government, whether state or federal, whether of )lice, taxation, or interstate commerce, in so far as they are ised to justify that indefinite extension of power to abridge [iberty or property without compensation for some newly ^ecognized public purpose. The practical problem with which we are concerned is not so much the technical legal distinc- tions between different powers, as the extent to which these powers are increasingly used to determine the bargaining re- lations between employers and employees. In this way, with- out formal amendment, the American constitutions are un- consciously amended by the police power through the change of public opinion ^regarding the rights and duties of labor. This change works its way into the constitutions, partly through the discretion of public authorities, and partly through the application of old principles of justice to new con- ditions. 2 i8 PRINCIPLES OF LABOR LEGISLATION (2) Public Authorities Here the issue is between the amount of discretion, or power to enforce one's own opinion, allotted to the execu- tive, legislative, and judicial branches of government. Shall the legislature or Congress use its sovereign power to the extreme limit of equalizing fortunes and giving labor a high preference over capital, or shall it be restricted to narrower limits? In other words, can the legislature, under whatever power of taxation, commerce, or police, put into force its own notions of "general welfare" and "social expediency," or must it be limited to the notions held by the courts? In monarchical countries, or countries whose executives in- herit monarchical powers, executive discretion still remains to the monarch, or president, or the executive council, 1 after legis- lative powers have been taken away by Parliament. This power of discretion is the executive's power to decide when and where a law applies, and to issue rules, regulations, ordinances, or orders which have the effect of law, which are needed to en- force the law, or even are thought by the executive necessary to fill any gaps which Parliament has left in the scheme of laws. Indeed, in enforcing a law, every executive officer must exercise some discretion, which he does as his own opinion directs. Discretion is the power to act without interference according to one's own opinions, or policy, or theory of things. , It is not supposed to be capricious or changeable. It is power) to adopt and follow a policy, not power to be arbitrary and; unreasonable. Even a policeman must make up his mind whether a man is drunk or not, before applying the law against* public intoxication. Policemen may differ in their opinions on this matter, even though the facts do not differ, and their differences are the little germs of what, in the case of a mayor, governor, president, or king, would be called executive policy, or executive discretion. Under the theory of our constitution, however, the execu- tive officers have no discretion to follow a policy of their own. The legislature is the policy-making branch of government. It has discretion; it can put its opinions into effect; it can 1 Switzerland. THE BASIS OF LABOR LAW 19 adopt a policy, because it is supposed to represent all inter- ests in society and to know all the facts. The effort is there- fore made in our country to limit the executive discretion as narrowly as possible, in order that it may be said that the executive merely enforces the law as he finds it. To do other- wise would be to delegate legislative power to an authority that is not legislative under the constitution. But with us, not even the legislature is the supreme legis- lative power. The written constitutions are the fundamental laws, enacted directly by the people themselves. Being laws, they also express a policy, based on the opinion of the people who adopted them. And their policy must prevail against the legislative discretion. The policy of the constitutions is extremely individualistic. It asserts inalienable and natural rights of individuals against all others and against the state itself. When a policy of the legislature set forth in a statute comes into conflict with this individualistic policy of the constitutions, some one must be called upon to decide which shall prevail. The supreme courts, at first with hesitation, but afterward with assurance, have made these decisions. If a statute of the legislature fixing the hours of labor conflicts with the constitution, the courts merely refuse to enforce it they enforce the constitution itself. They declare the law ' ' unconstitutional. ' ' 1 : But there is a principle of our courts to the effect that a law is not unconstitutional if a way can be found to sustain it. Hence, if there is an apparent conflict between the con- stitution and the attempt of the legislature to abridge private rights, and if the court cannot support the legislature under the other limited justifications of taxation, guardianship, proprietorship, eminent domain, or protection of person and property, it may see its way to support it under the elastic justification of the police power. Thus the police power in America may be looked upon as the courts' justification for gradually amending the constitution by interpretation so that it may conform to the new objects and new restrictions on prop- ^or history of laws declared unconstitutional see Moore, ''The Supreme Court and Unconstitutional Legislation," Columbia Uni- versity Studies in History, Economics, and Public Law, Vol. LIV, 1913, No. 2. 20 PRINCIPLES OF LABOR LEGISLATION erty which the legislature deems important. A similar justi- fication and gradual amending of the constitution takes place when the court permits Congress to extend the taxing power or the commerce power to the regulation of rates, services, wages, hours of labor, safety, health, and compensation for accidents. This distinction between discretion on the part of the legis- lature and interpretation on the part of the courts is a dis- tinction not so much between the several powers of govern- ment as between the functions peculiar to the several branches of government. It leads us to distinguish the public authori- ties who share in the exercise of the public powers. Government can interpret and exercise its powers only through individuals. Each of these individuals takes an oath appropriate to his office, agreeing to support the constitution, to execute the law, to maintain order. For the time being his acts are the acts of the state, provided he keeps within the authority granted to him. To the legislature is granted the authority of deciding on public policy for the future, and, in doing so, it exercises discretion. To the courts belongs the power of deciding particular cases as they arise, and in doing so they interpret the laws. The executive enforces the law. But, to a fourth and new branch of government, unrecognized in the original constitutions, which may be called the adminis- tration, 1 is coming to be assigned the function of investigation of those economic and social conditions upon which the several branches of government base their decisions. While these functions cannot be separated in practice, yet they stand out as characteristic of each branch of government. Execution, discretion, interpretation, and investigation are the four great divisions in the functions of officials, and the executive, the legislature, the judiciary and the administration are the four branches that are specialized for these functions. a. The Executive. The executive authorities are entitled to use violence if necessary, and to deprive individuals of life, liberty, and property without their consent. Private individ- uals may not even resist an officer of the law. The army, l Die Verwaltung. The term "administration" has been used by the Supreme Court in this sense, 224 U. S. 474 (1911); 230 U. S. 196, 274 (1912). THE BASIS OF LABOR LAW 21 navy, and militia may be called upon by the governor or pres- ident in time of strike or riot. Sheriffs, marshals, their deputies and policemen, may arrest and imprison individuals in order to prevent violence and to execute the orders of the court in the administration of civil and criminal justice. They belong to the military or ''police" force of the state, which, under our theory, is subordinate to the civil authorities. The police force, as already stated, differs from the police power, in that the police power is the authorization, or justification, under which civil authorities are entitled to exercise discre- tion in enacting laws and issuing orders, while the police force is the agency which exercises coercion as directed by these laws and orders. While in law the military and police forces have no dis- cretion, but must follow orders, yet, in the urgency of im- mediate action, they must exercise discretion before their acts can be passed upon by the civil authorities. Only in case of war can executives legally set aside the superior authority of the courts, but war can be declared only by the legislature, a civil authority. 1 The arbitrary discretion of the executive is sought to be held in check by that greatest instrument of freedom, the writ of habeas corpus. By means of this writ the court, a civil authority, orders the executive, or military power, to bring out a prisoner for hearing and for release if wrongly imprisoned. If the executive refuses, then the civil authority ipso facto becomes subordinate to military force. In so far as the executives and the military and police authorities exer- cise discretion, their opinion of the rights and duties of em- ployer and employee is sometimes the deciding factor one way or the other in determining the relative power of the two in the wage bargain as affected by strikes, lockouts, pub- lic assembly, public speaking, agitation, arrest of leaders, protection of strike-breakers, picketing, the use of the streets, and otherwise. b. The Legislature. The legislature is the authority which, acting within limits, is entitled to exercise discretion in de- has apparently been denied by the Supreme Court of West Virginia, which sustained the acts of a "military commission" in sen- tencing strikers to prison, State ex rcl. Mays v. Brown, 71 W. Va. 519, 77 S. E. 243 (1912); ex parle Jones, 71 W. Va. 567, 77 S. E. 1029 (1913). 22 PRINCIPLES OF LABOR LEGISLATION upon public, policy and enacting laws to carry the policy into effect. It is the one branch of government where the representatives of conflicting opinions are entitled to ex- press their joint opinion in the form of law that shall be en- forced on all persons with or without their consent. Other branches of government are considered to be impartial and limited to the execution of the law as the legislature prescribes. But the legislature may be partisan in politics and partial between employers and employees. It is considered that, if partisans meet and discuss in an orderly way their points of antagonism, the outcome will be a compromise in which the arbitrary power of no individual or class will dominate others. Yet, in fear that the legislature may not act justly, and may override minorities or those not represented, the people have enacted the higher law known as the constitution, with its bill of rights and its limitations on the legislature. This leads to the judiciary. c. The Judiciary. Under our constitutional system the judicial branch holds a high and unique position. In order that it may be removed from the heat of partisanship and partiality it is made independent of the executive and legis- lative branches. In order that the federal system of a cen- tral government and forty-eight state governments, each su- preme in its own field, may operate in harmony, the federal court is made the final authority to determine how far the field of each extends. By the fourteenth amendment to the constitution, all persons born or naturalized in this country enjoy a double citizenship that of the United States and of the state wherein they reside. By this amendment the federal courts have authority to prevent any state from abridging the rights which the federal constitution and law^s grant to them as citizens of the United States, and to prevent any state from depriving any person of life, liberty, or property without due process of law. The federal courts interpret and apply treaties with foreign nations and protect the rights of aliens. Finally, since the acts of the federal Congress or ex- ecutive may conflict with the constitution, the federal court may declare them unconstitutional and hence refuse to apply them, in order to protect the constitution. In this many-sided jurisdiction over states, over Congress, THE BASIS OF LABOR LAW 23 over the executive, over inferior courts, and over private citizens, and in the interpretation of these many laws, the Supreme Court of the United States exercises authority not only judicial, but also, in fact, legislative and executive. So with the supreme courts of the states within their proper jurisdictions. When deciding between a law of the legisla- ture and the law of the constitution, they necessarily decide between the policy of the legislature and their own opinion, based on previous decisions, of the policy contained in the constitution. When nullifying an act of the executive they interpose their opinion of the law and the constitution against the executive's opinion. Yet they are but performing the judicial function of interpreting the laws and making their application to the facts of each particular case, as it arises. Their legislative and executive functions arise because they have authority to apply their interpretation to cases in which the acts of legislatures and executives are called in question, as well as cases where only private citizens are the litigants. In this way is established, as the court has said, "a govern- ment of laws and not of men." 1 But the courts, just as legislatures and executives, are com- posed of men. They, too, are guided by opinions, and their opinions change with change in experience and change in judges. The difference consists in the procedure, the stand- ards, and the safeguards by which the judges arrive at their opinions, compared with those which restrain the more hasty opinions of lawmakers and executives. It is merely "opin- ions," after all, rather than written constitutions, that pro- tect, enlarge, and abridge rights and duties. d. The Administration. But opinions of individuals are so capricious, fluctuating, and uncertain, so liable to be bent by bias, passion, and interest, that our constitutional system of government imposes methods and principles designed to re- duce them to an orderly system based on reason. These methods are investigation or the accurate discovery of facts and conditions, and in more recent times the administrative branch of government has been devised with investigation as its main purpose. Investigation is so involved in all the 1 Marbury v. Madison, I Cranch 137, at p. 163 Ci8o3). 24 PRINCIPLES OF LABOR LEGISLATION topics of labor legislation that the treatment of administra- tion is reserved for the concluding chapter. (j) Principles The other essential to an orderly system of reason in place of capricious opinion is the principles, standards, or "maxims" that underlie due process of law. Under the theory of our courts, the principles of law and justice are immutable and unchanging. Facts and conditions change, and these are re- vealed by investigation, but the principles remain the same, though their application changes when the facts change. The leading principles that concern us are "public benefit" and "equal protection of the laws." a. Public Benefit. The effect and purpose of the police power is to impose a duty on some individual which redounds to the benefit of other individuals. 1 In despotic or oligarchic governments these benefited individuals are likely to be the favorites and courtiers of the monarch or the privileged and aristocratic classes. In a democratic or republican govern- ment they are likely to be political partisans, monied interests t employers' organizations, trade unions, or other classes who get control of the legislature and enact laws merely for the benefit of their private interest at the expense of other private interests. But if a thing of this kind happens, then the legis- lature is doing the very thing which revolutions and written constitutions were designed to prevent when despots and aristocrats were the offenders. Hence it is that every act of the legislature must be tested by a standard which shall determine whether the persons or classes of persons to be benefited are so benefited merely because they have power in the legislature to impose burdens on others, or because the benefit to them is also a benefit to that body of the whole people which we call "the public." If the benefit goes only to private persons for their private benefit, then the legislation is unconstitutional, because it employs the sovereign power of government for private purposes. But if those persons who 1 See "The Police Power/' p. 13. THE BASIS OF LABOR LAW 25 are benefited are either the entire population or such a sig- nificant part of the population that their benefit is also a public benefit, then the powers of government are put to their proper use of performing a public purpose. 1 Thus we have a series of terms closely related or synony- mous, all of them implying public benefit, such as public utility, publicjnterest, public use, public value, public service, pub- lic welfare, public purpose. These indicate the most funda- mental principle, standard, or maxim, which measures or limits the extent to which the legislature my go in exercising its police power. But public benefit is not something fixed and unchangeable. The police power particularly is that justification by which the definition of public benefit may be changed or enlarged as time goes on. In the final analysis this enlargement of the definition of public benefit is merely an enlargement of the court's opinion as to what constitutes a public purpose. But, behind the change in the court's opinion is the change in conditions and the change in public opinion. Among the changes in conditions which lead to changes in opinion are those industrial changes already mentioned, such as the change from free land to closed land, the changes in transportation and mobility of labor, the development of large-scale indus- try, all of them throwing large masses of labor together into active competition. The increasing congestion of population, whether in towns or factories, has brought a change of opinion as to the need of extending the police power in matters of health, safety, and morals. Accompanying these changes in outward conditions may be noted significant changes in public opinion and court opinion regarding labor. In the colonial or agricultural stage of in- dustry the man without property was looked upon as partly shiftless, partly vagabond, partly criminal, and the opinion of the time supported many kinds of coercive laws by which both adults and children might be captured or enslaved or otherwise compelled to work. In this way it was considered that propertyless laborers would be trained in the habits of term "public purpose" is usually limited to taxation and eminent domain, but in this book it is also applied to other powers, especially the police power. PRINCIPLES OF LABOR LEGISLATION lustry and thrift by which they could rise to the position of proprietor and could share in the rights and civilization of their superiors. A citizenship stage followed, beginning in the decade of 1820, when the property less man was granted the suffrage. This produced at once a revolutionary change in the atti- tude of labor toward itself, shown in the first series of strikes on a large scale for reduction of hours of labor with the demand for more leisure for the duties of citizenship as well as the demand for free schools, for the abolition of imprisonment for debt, of indentured service, and other remnants of the servile stage. Immediately following this period and the failure of ag- gressive methods, after the panic of 1837, came what may be called the humanitarian period. Labor, for the time being, lost its power of attack and became incapable of self-help. So the long period of unemployment, until the gold discoveries of 1849, produced a class of eminent men in sympathy with labor, and brought about the beginning of legislation abolish- ing imprisonment for debt, providing wage and homestead exemptions, free schools, protective tariffs against foreign pauper competition, and generally removing the opinions of servility, dissoluteness, and criminality theretofore held re- garding propertyless labor. This remarkable period cul- minated in the Civil War, which freed the slaves. It was accompanied by similar movements in Europe, and altogether was nothing less than a revolution in public opinion regard- ing labor. 1 With the decade of the 'sixties began again an aggressive movement of labor, headed in Europe by the International Workingmen's Association, which later split into socialism, anarchism, and trade-unionism, and in the United States by the National Labor Union, which finally split into green- backism, socialism, and trade-unionism. This period, ex- tending into the twentieth century, may properly be char- acterized as a period of class struggle, in which new and enormous fortunes derived from industry were pitted against unprecedented organizations of labor in many deadly strug- 1 See Chapters II, "Individual Bargaining," and III, "Collective Bar- gaining." THE BASIS OF LABOR LAW 27 gles, and in which legislatures responded to the demands of labor for legislation, and the courts responded to the demands of capital by declaring such laws " class legislation" and there- fore unconstitutional. This period, to a considerable extent, continues to the pres- ent time, but the beginning ojLanother, which may be called the public benefit period of labor legislation, dates from 1898, when the Supreme Court decided the case of Holden v. Hardy. 1 Hitherto the police power was recognized mainly as an au- thority to enforce protective restrictions against producers in behalf of consumers. This decision affirmed the power to enforce such restrictions on employers and consumers in behalf of producers. In other words, whereas formerly, for the most part, the health of consumers, but not the health of producers, was a public benefit, now the health of the laborer as a producer is considered to be as much a public benefit as the health of the consumer of his product. If this be so, then the liberty of both the employer and the employee to make a labor contract may be restricted and regulated, if it is found that the contract is injurious to the laborer. The protection of labor becomes a public purpose. 2 In the Holden v. Hardy case the court also stated the prin- ciples on which the powers of government are enlarged as conditions change and new facts are brought to the attention of the court through investigation: "This court has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that in" some of the states methods of procedure which, at the time the constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had for- merly been laid upon the conduct of individuals, or of classes of individuals, have proved detrimental to their interests, while, upon the other hand, certain other classes of persons 1 169 U. S. 366, 1 8 Sup. Ct. 383 (1898). The decision affirmed the con- stitutionality of legislation reducing the hours of labor of men who work in smelters and underground. 2 This was, of course, not the first time that this doctrine was as- serted. Indeed, it was implied whenever a court sustained a law pro- tecting labor. But it was the first broad statement by the highest court in such a way as to make it "the law of the land." 28 PRINCIPLES OF LABOR LEGISLATION (particularly those engaged in dangerous or unhealthful em- ployments) have been found to be in need of additional pro- tection. ... It is impossible to forecast the character or ex- tent of these changes; but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employees, as they arise." 1 Two state courts have said, "While the principles of justice are immutable, changing conditions of society and the evolution of employment make a change in the application of principles absolutely necessary to an intelligent administration of government." 2 Finally a justice of the Supreme Court, in 1911, is able to identify a public benefit with public opinion regarding not only the health of a class of producers, but also regarding the welfare of any class of people, and to declare that the police power is shaped "by the prevailing morality or the strong and preponderant opinion" as to what is "greatly and immedi- ately necessary to the public welfare." 3 b. Equal Protection of tJie Laws. Another respect in which the case of Holden v. Hardy is the headlight of a new period is found in its opinion regarding the inequality of bar^aininp power of employer and employee. The opinion declared that a law, such as the one then before the court, limiting the work- ing hours of men, was not class legislation and therefore did not conflict with the constitution which guarantees to each individual the equal protection of the laws. The reason is, 1 Holden v. Hardy, 169 U. S. 366, at pp. 385-387 (1898). 2 Ritchie v. Wayman, 244 II!., 509, 91 N. E. 695 (1910); quoted with approval from Washington v. Buchanan, 59 L. R. A. 342 (1902). 3 Xoble State Bank v. Haskell, 219 U. S. 104. 31 Sup. Ct. 186 (1911). Also contrary opinion in Ives v. South Buffalo R.R. Co., 201 X. Y. 271, 94 N. E. 431 (1911), at p. 448, where the highest court of New York said in part: "As to the cases of Noble State Bank v. Haskell and Assaria State Bank v. Dolly, we have only to say that if they go so far as to hold that any law, whatever its effect, may be upheld because by the 'prevailing morality' or the 'strong and preponderant opinion ''it is deemed 'to be greatly and immediately necessary to the public welfare,' we cannot recognize them as controlling of our construction of our own constitution." THE BASIS OF LABOR LAW 29 as declared by the court, that the employers and their laborers do not stand upon an equality; that "the proprietors lay down the rules and the operatives are practically constrained to obey them"; thatj'the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health and strength," and that, even though "both parties are of full age and competent to contract," yet the legislature may interfere "where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself." l In this opinion the court recognized, what had been dimly seen or implied from the beginning of labor legislation, that inequality of bargaining power is a justification under which the state may come to the protection of the weaker party to the bargain. In earlier periods the courts had often held that capital and labor were equal, that laws favoring labor against capital were class legislation, and, even where certain courts held otherwise, the law books severely criticized them as yielding to the pressure of politics instead of bravely stand- ing by the constitution. 2 But inequality of bargaining power has long been a ground for legislative and judicial protection of the weaker party, even though the courts found other grounds on which to base their opinions. It was early con- ceded as a justification of usury laws, protecting the weak debtor against the strong creditor; latterly of public utility laws, protecting the weak consumer against the powerful cor- poration; and now it only needs a recognition of facts to justify labor legislation protecting the weak wage-earner against the more powerful capitalist. Such legislation could 1 A similar opinion had been stated in 1892 by a state court (Peel Splint Coal Co. v. State, 36 W. Va. 802, 15 S. E. 1000 (1892), at p. 1009: "When a few persons are engaged in an extensive business and they have a multitude of customers or dependent employees and it appears that the business is of such a character that the parties do not deal upon an equal footing and that the many are at a disadvantage in their contractual relations with the few, the legislature may regulate these relations, with a view to prevent fraud, oppression, or undue ad- vantage." See also State v. Brown & Sharpe Manufacturing Co., 18 R. I. 16, 25 Atl. 246 (1892); Avent Beattyville Coal Co. v. Common- wealth, 96 Ky. 218, 28 S. W. 502 (1894). 2 Eddy, Law of Combinations, 1901, Vol. I, pp. 245-247, 277; Vol. II, p. 1023. 30 PRINCIPLES OF LABOR LEGISLATION be held to deny equal protection of the laws only where the facts showed that both parties were actually equal. But where the parties are unequal (and a public purpose is shown), 1 then the state which refuses to redress the inequality is actually denying to the weaker party the equal protection of the laws. It is by recognizing this inequality of bargaining power, coupled with a public purpose, that the courts pass over, in any particular case, from the theory of class legislation to the theory of reasonable classification. The two are identical in one respect; all classification is class legislation, but the kind of class legislation which the courts condemn is that which they consider to be "unreasonable " classification. Class legis- lation benefits or burdens one class against others where there is no real inequality or no public benefit. "Reasonable" classification benefits or burdens a class where there is real inequality to be overcome and a public benefit to be attained. 2 That which is class legislation at one time may become rea- sonable classification at a later time, if the court perceives that what it once thought was equality is really inequality, and what it once thought was merely private benefit is also public benefit. Thus the history of the constitutionality of labor legislation in the United States has been a history of the tji cation. The conflicting opinions of various courts on the ex- tent of the police power over private property are usually conflicting opinions on the equality or inequality of bargain- ing classes and on the public or private purpose subserved by the legislation. In proportion as certain classes of la- borers, such as women or mine-workers, are recognized by the courts as suffering an injury, and in proportion as the in- jured persons are deemed to be of importance to the public as well as unable to protect themselves, then legislation re- quiring the employer to remove the injury and prohibiting the 1 In the case of Coppage v. Kansas, 236 U. S. i, 35 Sup. Ct. 240 (1915), the Supreme Court denied the application of the doctrine of inequality of bargaining power, but this was a case where the purpose was to pro- tect trade unions against disruption by employers. What the court in effect decided was that a trade union performed a private and not a pub- lic purpose. See "The Law of Conspiracy," p. 114. 2 See also Freund, Police Power, pp. 626-755. THE BASIS OF LABOR LAW 31 laborer from even voluntarily consenting to the injury ceases to be overruled as "class legislation" and begins to be sus- tained as "reasonable classification." Even though the in- dividual liberty of both employer and employee to make so- called voluntary contracts is restricted by the law, yet each continues to have "equal protection of the laws" because each individual is treated equally with all other individuals of his own class. The bargaining power of the employee is increased while that of the employer is reduced, yet all em- ployers in a given class are treated alike and all employees in their class are similarly treated alike. 1 This gradual transition from the time when labor was treated as equal to capital to the modern time when labor is given privileges superior to those of capital may be described as a transition from the law of master and servant to the law of employer and employee. Prior to the decade of the 'thirties the laborer could be imprisoned for debt. In other words, his creditor had rights over his body, which was looked upon as property justly belonging to the creditor as was the laborer's other property sufficient to pay the debt. This reduced the laborer to a servile state while pretending that he was equal and free. No distinction was made between the fraudulent debtor and the unfortunate debtor. Now the laborer is not treated as a criminal unless proved to be so, and his creditor consequently has no remedy which reduces the laborer to the servile state. Next, in the decade of the 'forties, the law went further and the wage exemption laws prevented the creditor from taking even the minimum wages of the laborer in payment of a debt. 1 This principle may be seen in the workmen's compensation laws. Under the former law of employers' liability the laborer carried all the expense incurred by reason of the risk of accident. The employer had certain defenses by which he could throw the cost of accidents on the employee. (See "Rules of Employers' Liability," p. 358.) These de- fenses were held to be property rights, because they were valuable to the employer. But the legislature abolished these defenses and requires the employer to compensate all laborers for all disabling accidents. The employers are thus compelled to pay the cost of insurance against all of these risks, where formerly the laborer carried the insurance as best he could. In this way the employer's increased cost of insurance may be said, so far as the law is concerned, to have increased the bargaining power of the employee and reduced the bargaining power of the employer or of the consumer to the same extent. 3 2 PRINCIPLES OF LABOR LEGISLATION Finally, the thirteenth amendment to the constitution, by prohibiting involuntary servitude except for crime, confirmed the preceding privileges as well as the privilege of a laborer even to break his contract to labor without being forced to "specific performance." In these respects labor has been given a preference over capital, in that while both the em- ployer and the employee can bring suits for damages on account of breaking a contract, the employer's suit is against the laborer whose small property is exempt from attachment, but the laborer's suit is against an employer whose business property as such has no exemption. 1 Other laws are mentioned in the following chapters, showing the transition from the master-servant notion of law to the employer-employee notion. The master and servant law, while pretending to treat employer and employee alike, re- tained marks of that servile status in which the laborer's body was the physical property of employer or creditor. But the law of employer and employee, as it develops, not only grad- ually removes those vestiges of past servitude, when the master could compel the servant to work, but also gives the latter a preference over capital in bargaining and a privilege to break contracts without effective penalty which the em- ployer does not possess. In other words, the natural , in- equality of employer and employee reduces the latter to a servile state, reinforced by the law of master and servant, but the legislature, by giving preference to the weaker party, overcomes in part the inequalities of nature and secures a more real equality protected by the law of employer and employee. 2 Thus it may be affirmed that the equality of bargaining power toward which the law of employer and employee is directed is a principle so important for the public benefit that 1 Of course, the bankrupt employer has the same exemptions as the laborer. 2 This distinction between the law of master and servant and that of employer and employee is not technically correct. The law books in- clude both under "master and servant." But the legislatures have broken away from these terms. In recent legislation of the more indus- trial states the terms used are employer and employee. This goes along with popular usage and serves to bring out, not so much the legal form of the labor contract, as the underlying purpose of equality in the wage bargain. THE BASIS OF LABOR LAW 33 it becomes in itself a public purpose. Many decisions of the courts base the justification of the police power, not merely upon the protection of health, safety, and morals, but squarely upon strengthening the bargaining power of laborers. In sus- taining a law requiring wages to be paid in cash, the Supreme Court of Tennessee said: "The legislature evidently deemed the laborer at some disadvantage under existing laws and customs, and by this act undertook to ameliorate his condi- tion in some manner by enabling him, ... at his election and at a proper time, to demand and receive his unpaid wages in money rather than in something less valuable. Its tendency, though slight it may be, is to place the employer and employee upon equal ground in the matter of wages." l The court again approved the passage in Holden v. Hardy bearing on bargain- ing equality. Upon similar grounds was upheld as constitutional an Arkansas law forbidding coal operators "from using screens or other devices to reduce the amount of wages that would be due on the basis of. weight of coal actually mined and accepted by the operator." The court said: "We are unable to say, in the light of the conditions shown in the public in- quiry referred to, and in the necessity for such laws, evinced in the enactments of the legislatures of various states, that this law had no reasonable relation to the protection of a large class of laborers in the receipt of their just dues and in the promotion of the harmonious relations of capital and labor engaged in a great industry in the state." 2 The court argued in a like tenor in upholding an Iowa statute denying effect to any contract restricting liability or the acceptance of any insurance benefits as a defense to per- sonal injury actions brought against railroads by their em- ployees. In dealing with the relation of employer and cm- ployed the court held that "the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order 1 Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. I (1901). For cases declaring similar laws unconstitutional, see Freund, Police Power, pp. 305, 306. 2 McLean v. Arkansas, 211 U. S. 539, at p. 550, 29 Sup. Ct. 206 (1909), reprinted in Hall, Cases on Constitutional Law, 1913, p. 424. 3 34 PRINCIPLES OF LABOR LEGISLATION may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression. What differences as to the extent of this power may exist with respect to particular employments and how far that which may be authorized as to one department of activity may ap- pear to be arbitrary in another must be determined as cases are presented for decision. But it is well established that, so far as its regulations are valid, not being arbitrary or un- related to a proper purpose, the legislature undoubtedly may prevent them from being nullified by prohibiting contracts which, by modifications or waiver, would alter or impair the obligation imposed." 1 The court here also quotes with ap- proval the passage from Holden v. Hardy relating to inequality and conflicting interest. As summarized by Ernst Freund: 2 "Our whole economic system is based upon a very wide liberty of dealing and con- tract, and it is deemed perfectly legitimate to use liberty for the purpose of securing special advantage over others. The resulting disparity of conditions is not, on the whole, regarded as inconsistent with the welfare of society. Yet a different view seems to be taken of this liberty of dealing, where economic superiority is used to dictate oppressive terms, or where a degree of economic power is aimed at that is liable to result in such oppression. The theory of legislative inter- ference seems to be in some cases that oppression in itself, like fraud, is immoral and wrong either against the individ- ual affected thereby or against the public at large; in other cases, that the excessive dependence of whole classes of the community threatens, though perhaps only remotely, the social fabric with grave disturbance or ultimate subversion and ruin." 1 Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U. S. 549, at p. 570, 31 Sup. Ct. 259 (1911), reprinted in Hall, Cases on Constitutional Law, p. 518. 2 Police Power, p. 285. CHAPTER II INDIVIDUAL BARGAINING In the broadest sense of the term a debt is that which is due from one person to another, whether money, goods, or services. 1 The laborer as debtor may, therefore, be looked upon as owing either labor or money to another. But modern law does not force a laborer to work out his debt. It con- verts a labor debt into a money debt, or ''damages," and en- forces payment of the latter. Furthermore, under "exemp- tion" laws, the law does not always enforce even the total payment of a money debt. On the other side, the laborer is a creditor to the extent that the employer owes him money for his labor. Here, too, modern legislation gives him certain privileges or protection, not usually given to other creditors. It is in this twofold relation of debtor and creditor that we trace the history of labor law from the servile stage, through the stage of master and servant, to the modern stage of employer and employee. i. THE LABORER AS DEBTOR If we classify the legal relations of the laborer as debtor we shall begin with the employment of labor in its elementary form of slavery, where all of the rights were on the side of the owner and all the obligations on that of the laborer. This, and a succeeding or contemporary stage of serfdom, are known as a period of status. The laborer is born to the 1 Kimpton v. Bronson, 45 Barb. 625 (1866). 36 PRINCIPLES OF LABOR LEGISLATION position and does not enter it by agreement or contract. But status often merges into contract, or the fiction of a contract, and we may therefore speak of a servility stage, or a stage of servile contracts, preceding that of free contracts. Here would be classified slavery, serfdom, and peonage. These conditions of labor, even if based on contract, may be so evidently the outcome of coercion that they may rightly be considered as belonging to a pre-contract or servile stage. A second stage, which we may designate as that of master and servant, emerges gradually from the more liberal forms of servile contracts, although retaining vestiges of servile rela- tions. Some of the contracts of this stage, especially the seaman's contract, have continued down to the present day, while others, such as apprenticeship, indentured service, and contract labor, can with difficulty be distinguished from those of the servile stage. The ameliorating character of both the servile and master stage is that of paternalism, and both of them are closely connected with the institution of the family, in which the wife and children occupy a position of status, afterward modified by contract, express or implied. Modern labor legislation, as understood in this book, be- gins with a conscious effort on the part of the legislature to remove both the servile and paternal vestiges of the master and servant stage and to substitute a stage of real equality, as far as possible. This we designate as the employer and employee stage. (/) Servile Labor a. Slavery. The worker under primitive slavery is re- garded as the property of his master. In Roman law a slave was regarded not as a person, but as a thing. 1 In 1776 Mr. Justice Chase of Maryland said: "Negroes are property, and no more members of the state than cattle." In England, in 1772, it was held by the court that slavery could not exist in the mother country. The slave trade was abolished by statute there in 1807, and in the colonies in 1833. 1 Sohm, Institutes of Roman Law, tr. Ledlie, 1901, p. 171. 2 Wilson, History of the Rise and Fall of the Slave Power in America, n. d., Vol. I, p. 15. INDIVIDUAL BARGAINING 37 The example of Great Britain in regard to her colonies was gradually followed by other European states, by France in 1848, Portugal in 1858, Holland in 1863. Spanish- American states abolished slavery after securing independence. In the United States the slaves were freed in 1865 by the thirteenth amendment to the federal constitution, as an outcome of the Civil War, and Brazil, the South American state which re- tained slavery longest, abolished it by decree of the Chambers in 1888. b. Serfdom. Slavery aims at the subjection of the whole man. Another degree of unfreedom, namely, serfdom or villeinage, does not attempt to cover the entire range of human life. It is concerned only with certain relations, gen- erally economic in character. Compulsory labor compul- sion as to the kind of service and the time and place where it is to be rendered is the essential note of serfdom or villeinage. A serf was bound to the land and bought and sold with it, like cattle. But he might secure freedom by "commuta- tion," that is, by paying to the lord or master who had the title to the soil a sum of money or an annual payment pre- sumably equivalent to the value of the service which he rendered his lord. He substituted a money debt for a labor debt in other words, he bought his freedom. Serfdom ap- pears as a corollary of feudalism. It grew up as a conse- quence of customary subjection in an agricultural system and melted away with the advent of the industrial age. c. Peonage. Peonage has been denned as a "status or condition of compulsory service based upon the indebtedness of the peon to the master." l The basic fact is indebtedness. In Mexico, after the Spanish conquest, slaves were used in mines and on roads, while serfs or peons were used for agri- culture. The condition of the latter, though differing little from slavery, was theoretically more humane and right- respecting. Together with peonage a system of large estates grew up. The peons got food and clothing from their mas- ters. 2 These Mexican peons are descendants of natives en- slaved by the Spaniards, and are often merely bondsmen. 3 1 Clyatt v. U. S., 197 U. S. 207, 25 Sup. Ct. 429 (1904). 2 United States Bureau of Labor, Bulletin No. 38, 1902, p. 23. 8 W. E. Carson, Mexico, 1914, p. 185. 38 PRINCIPLES OF LABOR LEGISLATION Their wages are low and they are compelled to deal at the store of the estate. They are always kept in debt, and until the Mexican constitution of 1917 abolished involuntary servi- tude except as a punishment for crime, an Indian workman owing his employer became the property of the latter. 1 Some- times peons are induced to contract for work to be done in tropical parts, and here they get into debt at once and are prevented by armed guards from escaping. 2 In the United States, after the abolition of slavery by the thirteenth amendment in 1865 the proprietors, being de- prived of their property right in the services of the slave, sought in some cases to effect the same purpose by indirect means, such as enforcing indebtedness and compelling the working out of the debt. These subterfuges gave added im- petus to the agitation which led to the adoption, two and a half years later, of the fourteenth amendment, which created a citizenship of the United States in addition to that of the state, and prohibited any state from depriving a citizen of the United States of "life, liberty, or property without due process of law," or denying "to any person within its juris- diction the equal protection of the laws." 3 In 1875 the United States Congress passed statutes which have been thought to enforce the meaning of the thirteenth amendment. That they do not entirely accomplish this is pointed out by the Immigration Commission of 19 n. 4 One statute provides heavy fines for those who "conspire to in- jure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the constitution of the United States"; 5 and another for "every person who kidnaps or carries away any other person, with the intent that such person be sold into involuntary servitude, or held as a slave." 6 But, as the Immigration Commission shows, "if a person simply places or holds another in slavery, it is impossible for the federal courts to impose 1 W. E. Carson, Mexico, 1914, pp. 188, 189. 2 Ibid., p. 191. See also Ely, Property and Contract, 1914, Ch. X. 8 Constitution of the United States, Fourteenth Amendment, Sec. I, in force July 28, 1868. 4 Immigration Commission, Abstracts of Reports, 1911, Vol. II, p. 446. 5 United States Revised Statutes, 1898, Sec. 5508. 6 Ibid., Sec. 5525. INDIVIDUAL BARGAINING 39 penalties under statutes at present in vogue (IQII), unless the placing or holding be for the purpose of forcing the settle- ment of a debt, no matter how great may be the abuses per- petrated upon the person held. In the Clyatt case the Supreme Court decided unmistakably that the peonage statute (R. S. 5526) referred only to cases where the return or arrest or holding has been for the purpose of paying a debt." 1 The chief origins of the enforced indebtedness upon which peonage rests are advances made by the employer to the laborer, misrepresentations made to laborers by unscrupulous employment agents, the payment by an employer of fines and costs in cases of misdemeanor, especially violations of vagrancy laws, and the operation of contract labor laws. Advances to laborers might include payments for transporta- tion, working equipment of various sorts, and any payment in kind, such as food, clothing, or housing, accomplished through company stores and land ownership. An example is found in the state of Maine, where advances are made to laborers sent out by employment agents who "misrepresent conditions in the woods, and frequently tell the laborers that the camps will be but a few miles from some town where they can go from time to time for recreation and enjoyment. Arriving at the outskirts of civilization, the laborers are driven in wagons a short distance into the forests, and then have to walk sometimes sixty or seventy miles into the in- terior, the roads being impassable for vehicles. The men will be kept in the heart of the forest for months throughout the winter, living in the most rugged fashion and with no recrea- tion whatever." 2 Similar practices of deceit were exercised by the agencies which send labor from New York to the South. Abuses of the vagrancy laws were found to occur in the South, involving both negro and white laborers. 3 In Florida, for instance, "common pipers and fiddlers, common railers and brawlers" may be arrested under the vagrancy law of 1 Immigration Commission, Abstracts of Reports, Vol. II, p. 446. See also Clyatt v. U. S., 197 U. S. 207, 25 Sup. Ct. 429 (1904). *Ibid., p. 447. 3 United States Department of Justice, Annual Report of the Attorney- General, 1907, Exhibit 17, pp. 207-213. 40 PRINCIPLES OF LABOR LEGISLATION 1905, and fined not more than $250 or imprisoned not more than six months. Other states of the South make it quite easy for arrests to be made under these statutes. The victim is usually a negro who, for a trivial offense, or no offense at all except being unemployed, will be arrested and charged with vagrancy. He gets little consideration from the local justices, and his fines are so high that'fce is unable to pay them. An employer appears and advances the fine on the condition that the laborer will work out his debt. When the debt is worked out, and the negro is again unemployed, he will, per- haps, be rearrested on similar charges, and in such manner becomes virtually a peon. Occasionally a victim is not al- lowed to pay the fine when he has the money; he will be imprisoned and word sent to a planter, who comes in and pays his fine and then takes possession of the unfortunate criminal, who is obliged to work off his debt. In most cases this is as hopeful a proceeding as borrowing from a mediaeval usurer, for at the end of months of toil the laborer may find himself as deeply in debt as ever. 1 Although the Immigration Commission reported that in every state except Connecticut and Oklahoma there had occurred sporadic cases which, if supported by legal evidence, would constitute peonage as the Supreme Court has defined it, nevertheless no general system of peonage, and no senti- ment supporting it, were found. In the South, where such practices were most frequent, prosecution by United States district attorneys was vigorous and usually successful. 2 (2) From Master and Servant to Employer and Employee In the master and servant stage we have the beginnings of the contract. In some cases the contract is very elementary in form, while in others it approximates closely the free labor contract. It is the first expression of the idea of equality between the laborer and his employer. The master was at liberty to hire whomsoever he wished, and, on the other 1 M. C. Terrell, "Peonage in the United States," Nineteenth Century and After, Vol. LXII, 1907, pp. 312, 313. 2 Immigration Commission, Abstracts of Reports, Vol. II, p. 445. INDIVIDUAL BARGAINING 41 hand, the servant could work for any master he chose. The master was not free to discharge his servant during the term of the contract, nor the servant free to quit his master and to work for another. The laborer was to serve the master faithfully, keep his secrets, obey his lawful commands, and guard his interests. On the other hand, the master was to give his servant a living, to protect him and look after his welfare. a. Indentured Service. The slave, the serf, and the peon perform their labor under a fixed status, and the individual has little or nothing to say about it. The indentured servant had in some particulars the right of a servant in making a contract, and in other respects he was little more than a slave, except that his chances for ultimate freedom were more real. Indentured labor is peculiar to new countries where labor is scarce, and where opportunity for individual enterprise is great. To the American colonies people were shipped from the old world to supply the need for young, healthy, energetic laborers for the development of the new. Children were sometimes shipped under the Elizabethan statute of appren- tices. 1 White indentured service is mentioned in laws of all the thirteen colonies. 2 The dates 1619 to 1819 may be taken as indicating roughly the beginning and end of the system. Competition with slavery destroyed it in the South before the end of the eighteenth century, but it continued to exist in the northern states into the nineteenth century. White ser- vitude was hampered by too many considerations in favor of the laborer; above all, the white servant's labor belonged to his master only for a term of years, after which he was as free as any one else, while the slave's services were property during the term of his life. 6. Apprenticeship. Apprenticeship proper differs from in- dentured service in that the master obligates himself to teach the apprentice a trade. If this obligation does not appear in the contract, or is not enforced, the apprentice becomes in fact an indentured servant. 3 Thus many who came to America under what purported to be apprenticeship contracts 2 Hurd, Law of Freedom and Bondage in the United States, 1858, Ch, VI. 3 Abbott, Women in Industry, 1910, p. 331. 42 PRINCIPLES OF LABOR LEGISLATION were in reality indentured servants. The two merged into each other in another direction, in that an apprentice could be bound for seven years to learn a trade which could be learned as well in three. Four years' enforcement of such a contract would be really indentured service and only three years' would be true apprenticeship. 1 c. Contract Labor, Midway between indentured service, on one hand, and the padrone system on the other, is contract labor. This form of labor, although apparently built on free- dom of contract, results in compulsory service or in peonage practices. It is the kind of labor contract whose perform- ance can be enforced at law, and has been quite common where large numbers of natives of backward races have been employed, as in the Hawaiian Islands, the Philippines, the West Indies, and in South Africa, where Chinese coolies were employed in the mines. In many respects contract labor closely resembles peonage, as we have previously suggested, for it places the laborer in the position of a debtor owing services, yet there is a differ- ence between the two. Peonage involves continuous or in- definite service, as long as a balance of debt continues, which may be permanent. But contract labor pertains to a term of years only, after which the laborer cannot be compelled to work. Furthermore, should the laborer renew his contract because of economic pressure, still it is only for another term of years. Contract labor results in servitude for a definite period only, while it leaves the way open to freedom. It is possible, however, that abuses of the system may lead very easily to a state almost as bad as peonage, and it is this pos- sibility, that has made contract labor unpopular in freedom- loving countries and has led to legislation aiming at its re- striction and abolition. In the Hawaiian Islands a condition of contract labor existed for fifty years. In order to solve the problem raised by the scarcity of labor combined with the opportunity for industrial development, the employing class got a law enacted in 1850 by which laborers over twenty years of age could 1 See chapter on governmental regulation of apprentices in J. M. Motley, Apprenticeship in American Trade Unions, Johns Hopkins Uni- versity Studies, Vol. XXV, 1907, p. 494. INDIVIDUAL BARGAINING 43 contract themselves to service for not more than five years. Refusal to work on the part of such a person was punished by imprisonment with hard labor. The man who tried to escape and was caught could be bound to double the original term of service. A later amendment added to the punish- ment for a second desertion three months' hard labor for the state. 1 This condition of contract labor was abolished in 1900 by a clause in the organic act settling the conditions of annexation to the United States. While the performance of labor cannot be compelled by direct means, except where life and property are endangered, or public necessity and convenience demand it, yet indirect devices are invented to effect the same thing. Statutes which deal with "employers' advances" make it a misdemeanor for the employee to fail in the performance of his contract to work off a debt. As imprisonment for debt has been pro- hibited by law, the only means by which these contract labor laws can be made effective is to couch them in such terms as to make the laborer breaking his contract appear to be guilty of getting money or provisions under false pretenses. Intent to defraud must be shown, since a mere breach of the labor contract is not a crime. 2 The law of Alabama provides that "the refusal of any per- son who enters into such contract to perform such act or ser- vice, or refund such money, or pay for such property without just cause, shall be prima facie evidence of the intent to injure his employer, or to defraud him." 3 The statute of Maine, enacted in igoy, 4 treating of contract labor, does not state that failure to perform the debt is prima facie evidence of intent to defraud, but judicial interpretation has had the same result. 5 Prosecutions under such statutes, however, have been in- validated by a sweeping decision of the United States Supreme Court in a leading case. 6 Here the court stated: "The fact 1 Katharine Coman, "Contract Labor in the Hawaiian Islands," American Economic Association Publications, 3d Series, Vol. IV, 1903, pp. 492-493, 531- 2 Ex parts Riley, 94 Ala. 82, 10 So. 528 (1891). 3 Alabama, Code 1896, Sec. 4730, as amended 1903 and 1907. 4 Maine, Laws 1907, C. 7. 6 Immigration Commission, Abstracts of Reports, Vol. II, p. 448. 6 Bailey v. Alabama, 219 U. S. 219, at p. 242, 31 Sup. Ct. 145 (1910). 44 PRINCIPLES OF LABOR LEGISLATION that the debtor contracted to perform the labor which is sought to be compelled does not withdraw the attempted en- forcement from the condemnation of the statute (prohibiting peonage). The full intent of the constitutional provision could be defeated with obvious facility if, through the guise of contracts under which advances had been made, debtors could be held to compulsory sendee. It is the compulsion of the service that the statute inhibits, for when that occurs the condition of servitude is created, which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labor. . . . The act of Congress (Act of 1875) deprives of effect all legis- lative measures of any state through which, directly or in- directly, the prohibited thing, to wit, compulsory service to secure the payment of a debt, may be established or main- tained." This decision delivered in 1910 invalidated laws of like nature in other states, 1 for the court observed: "No question of a sectional character is presented and we may view the legislation in the same manner as if it had been enacted in New York or Idaho. Opportunities for coercion and oppression in varying circumstances exist in all parts of the union, and the citizens of all these states are interested in the maintenance of the constitutional guarantees the con- sideration of which is here involved." 2 Until very recently seamen have generally stood on a dif- ferent footing from other employees, for with them enforced contracts were permitted and the law as to involuntary servi- tude has not been applicable. In the case of Robertson v. Baldwin 3 the court stated: "Seamen are treated by Congress as well as by the Parliament of Great Britain as deficient in that full and intelligent responsibility for their acts w r hich is accredited to ordinary adults, and as needing the protection of the law in the same sense in which minors and wards are en- titled to the protection of their parents and guardians." How- 1 Arkansas, Florida, Georgia, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Dakota, South Carolina, and Virginia. See United States Bureau of Labor Statistics, Bulletin No. 148, "Labor Laws of the United States," 1914, and annual supplements to 1918, Bul- letins No. 166, 186, 21 j, 244, 257. 2 Baiiey v. Alabama, 219 U. S. 219, at p. 231, 31 Sup. Ct. 145 (1910). 3 Robertson v. Baldwin, 165 U. S. 287, 17 Sup. Ct. 326 (1897). INDIVIDUAL BARGAINING 45 ever, since the date of that case the law of the United States affecting seamen has been changed and more freedom has been granted. A law 1 of the 63d Congress abolishes arrest and imprisonment as a penalty for desertion. It goes so far as to stipulate that it shall be unlawful in any case to pay any seaman wages in advance of the time when he has actually earned the same, or to pay any person for the shipment of seamen when payment is deducted or to be deducted from seamen's wages. This is a clear effort to prevent the obliga- tion of indebtedness on which involuntary servitude is based. The law goes further and provides that for quitting the vessel without leave after her arrival at the port of her de- livery and before she is placed in security a seaman forfeits from his wages not more than one month's pay. This ap- proaches the free contract perhaps as far as the conditions of seafaring will permit. Congress regulates the nature of the contract, the term of service, the payment and assignment of wages, advance payments and credits, the regulation of sailors' lodging-houses, of shipping-masters, quarters on board ship, rations, and many other details. Railroad employees also come within the power of Con- gress, and it was a federal court which, while reiterating the general right of employees to quit work, suggested by way of dicta that "his quitting would not be of right and he would be liable for any danger resulting from a breach of his agree- ment and perhaps in some cases subject to criminal prosecu- tion for loss of life and limb, by passengers or others, directly resulting from his abandoning his post at a time when care and watchfulness were required upon his part in the dis- charge of a duty he had undertaken to perform." 5 Laws on this subject, excepting that of Connecticut, connect the cessa- tion of work with combinations and strikes, 3 and forbid en- gineers and railroad employees to abandon locomotives under 1 United States Laws 1914-1915, C. 153; Revised Statutes, Sees. 4529, 4530, 4596, 4610, 4611. Title: An act to promote the welfare of American seamen in the merchant marine of the United States ; to abolish arrest and imprisonment as a penalty for desertion, and to secure the abrogation of treaty provisions in relation thereto ; and to promote safety at sea. 2 Arthur v. Oakes, II C. C. A. 209, 63 Fed. 310 (1894). 3 Delaware, Illinois, Kansas, Maine, Minnesota, New Jersey, Penn- sylvania. 4 6 PRINCIPLES OF LABOR LEGISLATION circumstances of this nature, under penalty of fine and im- prisonment. d. Padrone System. The padrone system is one step re- moved from contract labor. Those who work under this system permit a leader, the padrone, to make their contracts, yet the agreement is not enforceable at law. It is enforced only by their own necessities. The system started first with Italian laborers. The padrone brought over laborers from Italy, advancing the cost of their transportation, and hired them out to a contractor. He rented to them the shanties in which they lived while at work, and sold them supplies of food. Italian laborers formerly made contracts with their padrone to serve him for one to three years, and occasionally for a longer period. 1 The report of the Immigration Investigating Commission of 1895 shows that Italians and other foreigners had been imported "by the cargo" into the Michigan iron- mines and worked on the padrone system in the earl} 7 'nine- ties. 2 This was probably the time when the padroni were the most numerous and flourishing. Formal agreements among the laborers and the padroni are being discontinued, and for this there are perhaps three rea- sons. First, because the' alien contract labor laws make their agreements not only unenforceable at law, but actually punish- able if discovered by the government. Secondly, spontane- ous immigration from Italy has now become so great that it is not worth the padrone's while to risk a conviction under the contract labor laws, so that he is now merely a middle- man. Thirdly, there is the condition of dependence on one side and assistance on the other. The padrone does not es- tablish his control over a man, strictly speaking, either by force or fraud. Dr. Rossi calls the padrone system "the forced tribute which the newly arrived pays to those who are ac- quainted with the ways and language of the country." 5 The system is founded on an inequality more deeply rooted than the usual inequality between the employer and the laborer. The races which work under this method are ignorant and 1 Industrial Commission, Report, Vol. XV, 1901, pp. 430-432. 1 Immigration Investigating Commission, Report, 1895, p. 26. Industrial Commission, Report, VoL XV., 1901, p. 432. INDIVIDUAL BARGAINING 47 accustomed to be commanded, and it is on their dependence and lack of knowledge that the power of the padrone rests. Seen from the standpoint of the immigrant, a remedy is to be found not so much in legal rights, as in better education, American habits of thought, efficient employment bureaus, and more adequate administration of existing laws. e. Imprisonment for Debt. Not only as a debtor-laborer, but also as a debtor-consumer, the laborer receives considera- tion. Imprisonment for debt originally had no particular bearing on the labor contract or its history. The fundamental idea in the ancient German imprisonment for debt is the in- direct compulsion to pay. The debtor was to be encouraged to pay what he owed by being made uncomfortable until he did so. Compulsion to work had given place to compulsion to pay. 1 The abolition of imprisonment for 'debt was one of the issues raised by the early workingmen's parties in 1827. Kentucky, the first state to abolish imprisonment for debt, had already done so in 1821. New York followed ten years later, and a series of legislative and constitutional provisions followed at intervals throughout the country. Inability to pay one's debts, if not accompanied by embezzlement or other fraudulent conduct, is now no longer a reason for imprison- ment in civilized countries. 2 /. Wage Exemption. Following the abolition of imprison- ment for debt is the wage exemption legislation which took on large proportions in the United States in the 'forties. At the present time every state in the union has legislation exempting wages from attachment and execution for debt. In other words, the authority given to the sheriff or other administrative officer to seize from the property of the de- fendant (debtor) a sufficient amount to satisfy the judgment in favor of the creditor, is invalid when applied to wages under the exempt amount. The persons covered by these laws are differently specified in different states. Several pro- vide for exemption of "all laborers, mechanics, and day labor- l Th. Niemeyer, "Schuldhaft," Handworterbuch der Staatswissen- schaften. Vol. V, 1911, p. 593. 2 An important discussion of existing imprisonment for debt in Eng- land is found in E. A. Parry, The Law and the Poor. 48 PRINCIPLES OF LABOR LEGISLATION ers," as in Georgia; "residents of the state," as in Idaho; "resident debtor," as in Iowa; all "householders," as in In- diana; "judgment debtor," as in New York; and "all who support themselves and their families by the labor of their hands," as in Wisconsin. The amount of wages exempted varies somewhat from state to state. Some exempt sixty days' wages, others thirty days' , while still others stipulate a certain percentage of wages due as exempt, or state how large a per cent, may be col- lected for a given period. The exempted amount runs from $20, as in Massachusetts, to not more than $100, as in the District of Columbia. The usual period of exemptions, in so far as the time is specified at all, is the two months pre- ceding attachment. In all cases it is clear that the purport of the laws is to protect the minimum earnings of the work- ingman who has nothing to depend upon except his wages. Wage exemption applies not only against execution or at- tachment, but also against garnishment. 1 This is a proceed- ing by which the plaintiff in an action seeks to reach the rights and effects (wages in this case) of the defendant by calling into court some third party (employer) who has such effects (wages) in his possession or who is indebted to the defend- ant. 2 Should the employer unwarrantedly make payments from his employee's wages, he will still be left liable to the employee himself for a second payment of the wages. 3 g. Homestead Exemption. All American states have pro- vided that the means of earning a livelihood, that is, the tools of one's trade or profession, shall be exempt from execu- tion. Along with the exemption of personal property goes homestead exemption. This legislation is designed to keep intact the family unit in society, to prevent entire destruction, and to encourage a debtor who has been reduced to the last term to try again. However, these laws are not for laborers alone, but for any person. In most states a man must be a householder or the head of a family in order to get 1 Clark, Law of the Employment of Labor, 1911, p. 56. 2 Cyclopedia of Law and Procedure, Vol. XX, 1901-1914, p. 978. "While a garnishment proceeding accomplishes the same purpose as an attachment or execution, it is in no sense a levy on property, but a judicial proceeding by which a new judgment is obtained." 3 See Clark, Ibid., p. 55, and cases cited. INDIVIDUAL BARGAINING 49 the exemption, but in a few states any person may be entitled to the exemption. The limitations on the homestead exemp- tion are in both acreage and value. Rural homesteads may vary in acres from forty to 100, and city homesteads from one lot to one acre (five acres in one state). Maximum monetary limits are $500 to $5,000. In 1848 English statutes provided only that tools and actual necessaries of judgment debtors were not to be seized in execution. In 1883 a statute carried the exemption a little further, so as to include "the tools (if any) of his trade and the necessary wearing - apparel and bedding of himself, his wife and children, to a value, inclusive of tools and apparel and bedding, not exceeding twenty pounds ($100) in the whole." 1 These provisions have parallels in most of the British colonies, and the exempted property amounts to about the same. Nowhere, however, is the exemption as liberal as in the United States. Homestead exemptions are peculiar to the United States, but the tools of a debtor's trade, at least, are exempted in most English-speaking countries. h. Assignment of Wages. Assignment of wages grows out of the legal act of transferring or making over to another of the whole or part of any property, real or personal, in pos- session or in action, or of any estate or right therein. But if the wage-earner is to have effective exemption of wages from attachment and garnishment, it is consistent that he be pre- vented from making an assignment of his future wages. Assignments of unearned wages are safeguarded in various ways, as by requirement that they must be recorded, that copies must be filed with the employer, or even that the employer's consent must be obtained, or that the wife must join in the husband's assignment, or vice versa. Missouri affords a good example of effort to modify this evil. An act of 1911 provides that "all amounts of wages, salaries, or earnings must be in writing with the correct date of the assignment and the amount assigned, and the name or names of the party or parties owing the wages, salaries, and earnings so assigned, and all assignments of wages, salaries, and earnings '46 and 47 Viet., .31, Pt. IV, Sec. 44. 4 So PRINCIPLES OF LABOR LEGISLATION not earned at the time the assignment is made shall be null and void." Assignments to secure loans or future advances are invalid in Georgia and Massachusetts, and all assignments of future earnings are prohibited in Indiana. 2. THE LABORER AS CREDITOR Modern industry is conducted mainly "on credit." The employer is the middleman, whose creditors are those who advance the capital he uses, and whose debtors are those who buy his product. When the laborer starts to work for him, he also becomes, for a time, a creditor. He contributes his services in advance of compensation. He is a temporary in- vestor in the business. While he works he passes over to the employer the title to his product, and retains a claim for wages. When his wages are paid his investment is liquidated. Other investors advance money or "credit." Their con- tracts are secured by notes, bonds, mortgages, giving to them a preferred claim on the property and earnings of the busi- ness. They invest "capital" the laborer invests "labor." Laws regulating the time, place, and medium of payment, laws providing for mechanics' liens, wage preference, and so on, are intended to guarantee to the laborer as creditor, regardless of contract, that certainty of payment which the capitalist as creditor secures in the ordinary enforcement of contracts. (i) Time of Payment Legislation has not until recently 1 ventured to interfere directly and set the amount of wages, but it makes the amount of wages greater or less by indirect methods. Whatever the nominal amount may be, the frequency of the time of pay- ment is a matter of concern to the laborer. The longer he must wait for his wages the greater is the extent of his need for credit, and, accordingly, the higher will be his cost of living and the lower his real wages. The advantages of fewer See Chapter IV, "The Minimum Wage." INDIVIDUAL BARGAINING 51 pay days are obvious to the employer. His cost of book- keeping is less, and his required circulating capital will be less. Over the entire world in industrial states there are statutes requiring a regular pay day, which may be once a month, semi-weekly, or weekly. Many of the European laws are so phrased that modifications may be introduced according to local custom. 1 The Swiss government makes it incumbent upon the master to pay w^ages at any time according to work done, so as to enable the servant to meet any special need, and the interpretation of the law is left to administrative officers. 2 Two-thirds of the states of the United States, and Hawaii, have laws dealing with time and mode of payment of wages. Most of these laws provide for semi-monthly payment, and most of them stand without being contested in the courts to determine their constitutionality. Some cases have reached the courts, and different decisions have been rendered. In favor of the validity of such laws, it has been argued that semi-monthly payment of wages is required by the actual necessities of employees, and that regular payment of wages at short intervals is much more a matter of life and death to a workingman with a family dependent on him than to the employing corporation. 3 The purpose of the Rhode Island weekly payment law was laid do^Yn by the court as being pro- tection of the worker frorn "the greed of corporate capital." Poverty and weakness, it was said, "can wage but an unequal contest with corporate wealth and power"; and the act was considered to be for the prosperity and comfort of the work- ingmen, who depend entirely on their weekly wages, and are, like other people, obliged to pay for credit. 4 The cases in which laws relating to time of wage payment have been held unconstitutional show, as might be expected, that less consideration was given to the practical economic facts of the situation. In these cases appears the usual argu- ment that the liberty of contract of the workingman is en- 1 For example, the Netherlands, Bulletin of the International Labor Office, Vol. II, 1907, p. 411. 2 Federal act to supplement the Swiss federal code, March, 1911, Bulletin of the International Labor Office, Vol. VI, 1911, p. 96. 3 Arkansas Stave Co. v. State, 94 Ark. 27, 125 S. W. 1001 (1910). 4 State r. Brown & Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. 246 (1892), at p. 252. 52 PRINCIPLES OF LABOR LEGISLATION croached upon by legislation. In the case of Johnson v. Goodyear Mining Co. 1 an indignant protest was raised by the court against any interference with the liberty of con- tract. "The workingman of intelligence," it was said, "is treated as an imbecile. Being over twenty-one years of age, and not a lunatic or insane, he is deprived of the right to make a contract as to the time when his wages shall fall due." There are several states which legislate to the effect that wages shall be paid during working hours. This accomplishes two things: it saves the time of the employee and precludes payment in bar-rooms. In Austria the time for payment of wages to mine workers is reckoned within the duration of the shift. 2 In Massachusetts, where there are 100 or more per- sons employed in any establishment, wages are to be paid during working hours. In France payment of wages must not be made on days kept as rest days for employees. 3 The law of Greece is fairly representative of those of some other countries: it provides that wages shall be paid not later than the time when daily work is concluded, and that in under- takings with more than 200 workers the manner of paying wages may be regulated by administrative order. 4 Most of the states and countries provide that an employee shall be paid immediately upon discharge, and for delay thereafter is entitled to interest charges in the case of Iowa $i a day penalty up to twice the amount of the wages due. In some cases this penalty is 5 per cent, a year to be added for the cost of the delay, and the attorney's fee if his services are necessary to procure wages withheld from an employee. When an employee quits, the law generally stipulates that he shall be paid at the next regular pay day. j (2) Place of Payment The evil attached to the payment of men in saloons needs no elaboration, and it is to be noticed that this evil is partly 1 Johnson v. Goodyear Mining Co., 127 Cal. 4, 59 Pac. 304 (1899). 2 Bulletin of the International Labor Office, Vol. VII, 1912, p. 246. 3 Lois, Decrets, Arretes concernant la Reglementation du Travail, Bk. I, Ch. II, Sec. II, Art. 46. 4 Bulletin of the International Labor Office, Vol. VII, 1912, p. 290. INDIVIDUAL BARGAINING S3 taken care of in some places by providing that wages shall be paid upon the premises, as in Servia and Berne. This coincides with most of the legislation of the American states on the subject. California and Nevada, however, specifically provide that payment of wages shall be made to no one in bar-rooms except it be those employed therein. Austria, Belgium, France, Germany, 1 and Great Britain 2 have all legislated against payment of wages in public 'houses and taverns. (j) Basis of Payment In the United States there are some statutes that prohibit the screening of coal before it is weighed, the loss of coal through the screen being regarded as causing an unjust loss to the miner, whose contract calls for payment by the weight of coal mined. The validity of such laws has been both up- held and denied by different state courts, but in the case of McLean v. State of Arkansas 3 the Supreme Court held the law to be within the police power of the states. (4) Medium of Payment Carlyle declaimed against a modern civilization whose only bond of union is the cash nexus. Yet, from a different point of view, it may be said that liberty depends on cash. Indeed, the transition from slavery to freedom is a transition from payment in lodging, board, and goods, or "truck," to pay- ment in legal tender or in a medium convertible into money on demand at its face value. Cash means freedom. It per- mits the wage-earner to buy what and where he wants. It also means earnings, for it exposes and corrects unwarranted deductions, such as high prices, through bookkeeping ac- counts. a. "Living In." Under systems of slavery, serfdom, in- 1 Great Britain, Departmental Committee on Truck Acts, Report, 1908, pp. 96, 97. 2 46 and 47 Viet., C. 31 (1883). 3 McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206 (1906). 54 PRINCIPLES OF LABOR LEGISLATION dentured service, and apprenticeship the laborer lived on the premises of his master. The most complete survival of these systems in modern industry is known in England as "living in," where the employee receives part payment in board 'and lodging at his place of employment. The system is en- countered in all countries, and is characteristic of domestic ser- vice. Very often "living in " is made a condition of employ- ment, either express or implied, and the board and lodging accommodations provided are often inferior and inadequate. The system may rob the employees of their sense of personal responsibility and check individuality and independence of character. There is frequently no freedom of complaint, for, if the workers venture to remonstrate about food or lodging, they render themselves liable to dismissal and "spoiling" their references. In Great Britain the committee on the truck acts in 1908 recommended regulations as to accommodations provided in "living in" establishments, but did not seem to have a clear case for the abolition of the system. However, a minority report advocated its entire abolition. 1 In Berne the law of igoS 2 requires that food provided for the employees must be sufficient and wholesome and that the accommodation must satisfy all sanitary requirements. In Austria the administrative authority may determine by order that, in the case of undertakings of a certain kind or situation in certain districts it shall be unlawful to provide board or lodging for the employees as a part of their remu- neration. 3 In South Australia the occupier of an establish- ment and the members of his family are prohibited from lodg- ing and boarding adult persons in his service, in the case of those whose wages are fixed by wage boards, exception being made in the case of hotels, clubs, restaurants, and the like. 4 In the United States the subject of "living in" has not yet come into the realm of legislation, but it exists in hotels, restaurants, bakeries, and clubs. b. Company Houses and Labor Camps. The employer may 1 Great Britain, Departmental Committee on the Truck Acts, Report, 1908, Vol. I, p. 78; Minority Report, Vol. I, p. 84. 2 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 122. 3 Ibid. t Vol. V, 1910, p. 203. 4 Ibid., Vol. VII, 1912, p. 20. INDIVIDUAL BARGAINING 55 build "company houses" for his workmen which they must occupy, and the rent is then deducted from wages. Fre- quently these houses are better than those which the em- ployees would provide, but they have counteracting dis- advantages in contractual ties of dependence. In New York where factory operatives are given living quarters, these may be regulated by the industrial commission, which has power to enter and inspect. 1 Labor camps for certain kinds of work have been brought under regulation in certain states, as Cali- fornia, 2 New York, 3 and Pennsylvania. 4 In California the state board of health is ordered to condemn any camps which are dangerous to public health. c. Company Stores. The "truck" system, or "truck" in English usage, is the term which denotes payment in kind, or otherwise than in cash. 5 In the United States this is generally treated under such terms as "store orders," "pay- ment in scrip," or "company stores." Legislation respecting the truck system falls into three classes: (i) laws that would eliminate it altogether, at least in business establishments where it is a real evil, such as mining, manufacturing, and railroad corporations; (2) laws which permit the system, but which regulate the prices charged and the quality offered; (3) laws which allow the institution to exist, but which en- deavor to eliminate coercion of employees to make use of the system. Among the first class would come the laws of many of the leading industrial states, such as Maryland, Massachusetts, New Jersey, New York, and Pennsylvania, and France of the European countries the latter having, perhaps, the most complete law aiming at the abolition of the entire system. 6 The second class includes Connecticut, Indiana, and Vir- 1 New York, Laws 1913, C. 195. 2 California, Laws 1913, C. 182. 3 New York, Laws 1913, C. 195. 4 Pennsylvania, Laws 1915, No. 397, Sec. 18. 5 Great Britain, Departmental Committee on the Truck Acts, Report, 1908, p. 4. 6 Bulletin of the International Labor Office, Vol. V, 1910, p. 377; Act suppressing truck shops and prohibiting employers from selling, directly or indirectly, to their workmen and employees supplies and goods of any kind, March 25, 1910. 5 6 PRINCIPLES OF LABOR LEGISLATION ginia. Here prices must not be unreasonable, or higher to the employees than to others who are not employees. Of course, if the town should be owned by the corporation, the law could not have much effect, and, for that matter, no anti- truck legislation can accomplish much for the laborer in a town where the land and buildings are all owned by the employing corporation. In the third class would fall the laws of a dozen other states, mainly in agricultural areas, and the laws of practically all the foreign countries, omitting Holland and Italy, which have no such general laws. The last two groups have this in common, that both regu- late prices. Although penalties provided seem to be ample, yet in the United States the administrative features are weak, as typified by the case of Colorado, 1 where, if the attorney- general should fail, neglect, or refuse to act after a demand by a responsible party, any citizen has a right to institute pro- ceedings upon giving bonds for cost of suit. Obviously, the workman is in no position to give bonds or to bring suit, for he can afford neither the expense nor the loss of the job which such a procedure would entail. 2 (5) Deductions The problem of deductions from wages involves (i) de- ductions in respect to fines, (2) deductions as payment for damages, (3) deductions for use of material and tools, (4) deductions for benefits. Fines are imposed, presumably, for disciplinary reasons, and vary in application and amount in different establishments and with the caprice of the individual employer. They may not always be a real deterrent, but may on the other hand lead to carelessness, suggesting to the worker that he has paid for what he has done. They may be unfairly imposed, creat- ing a sense of injustice and irritating the workers, and they 1 Colorado, Revised Statutes, 1908, Sec. 6995. 2 Respecting the variety of decisions on the constitutionality of this class of legislation, see Freund, Police Power, 1904, pp. 305-308; Clark, Law of the Employment of Labor, pp. 65-72; Stimson, Handbook to the Labor Laws of the United States, 1896, pp. 104-110. INDIVIDUAL BARGAINING may even prove to be a source of petty profits to the unscru- pulous employer. At all events, they decrease the income of the wage-earner. Deductions as payment for damages may be for bad or negligent work, injury to materials and to other property of the employer. Abuses are very general, for the employer de- termines the amount of damage done and puts the price on materials spoiled. It is humanly impossible to do perfect work, and no matter how good a worker may be at his trade, faults will occur at times. Such faults are part of the manu- facturers' risk and should be dealt with as such. The em- ployer is himself often to blame for setting an inexperienced hand to do work for which he is not competent. The case of charges for materials and tools used by em- ployees involves the same principle as in the previous case. This system is intended to secure economy in the use of ma- terial by making the worker responsible. However, from the point of view of the worker the system is objectionable be- cause of the possibility of overcharge, which no regulation, however strict, can altogether prevent. Deductions for benefits received, such as medical atten- tion, hospital care, and sickness insurance, are allowed by all states and countries, but some provide (as, for instance, New South Wales and Western Australia) that the deduction must not exceed the value of the thing supplied, and, when not stated, this is generally implied by all countries. Usually, also, these deductions from wages are in pursuance of a previous contract. About half a dozen states, including New York, New Jersey, and Ohio, specifically legislate against forced contributions for certain enumerated benefits as a condition of employment. Oregon is an example of a state which has legalized deductions for hospital benefits, but which requires that such deductions must be approved by the in- dustrial accident commission. 1 A new development in the regulation of deductions for benefit funds is found in a type of law enacted first in Minnesota in 1919, which requires em- ployers who make deductions from wages for the purpose of furnishing medical or hospital care, or accident, sickness, or Oregon, Laws 1917, C. 393. 58 PRINCIPLES OF LABOR LEGISLATION old-age insurance, to secure a license for the benefit plan from the state insurance commissioner. 1 A corporation may furnish insurance, lessening many hard- ships of life for the workingman and his family; but this in- surance is enjoyed only as a result of continuous employment, which in turn often involves oppressive dependence. Espe- cially is this true when after a number of years the working- man has acquired rights which may be lost by change of employment. Thus the burden may become great with in- creasing years, as new employment with insurance becomes more and more difficult to secure. 2 Provisions are found in some laws, in connection with employers' liability, and sometimes confined to railroads, which regulate or prevent the payment of benefits to injured employees as a means of escaping from such liability. About half the states, the Philippine Islands, and the federal govern- ment have enacted that no contract of insurance or relief benefit shall constitute a bar to action by an employee for damages in case of injury or death. 3 Florida directly says that the existence of a relief department, by which the em- ployer pays benefits to the workers, shall not relieve such employer from responsibility in case of death. 4 It is some- times added, however, that the employer may set off against such a claim any sums he has contributed as benefit. 5 In Georgia the payment of wages up to $100 on the death of an employee is a sufficient release on the employer's part. 6 In the act of 1896 7 the first attempt was made in England to protect the worker from harsh and unreasonable fines. This act provided that there must be formal agreement for the fines; that the fine must be for something which causes, or is likely to cause, damage or loss to the employer or inter- ruption or hindrance to his business ; that it must be fair and reasonable, having regard to all the circumstances of the case; that written particulars must be given to the worker 1 Minnesota, Laws 1919, C. 388. 2 Ely, Property and Contracts in Their Relations to the Distribution of Wealth, ,1914, Vol. II, p. 714. 3 See, for instance, Ohio, Laws 1910, p. 195. 4 Florida, Laws 1914, C. 6520. 6 See, for instance, Wisconsin, Laws 1913, C. 644. 6 Georgia, Code 1910, Sees. 3134-3136. 7 59 and 60 Viet., C. 44. INDIVIDUAL BARGAINING 59 each time a fine is exacted; and, finally, that there shall be a register of fines open to inspection. 1 In the United States there is little legislation dealing with deductions as fines a dozen states in all. 2 Massachusetts says fines shall not be levied except for imperfect work, 3 and Louisiana prohibits them except when employees wilfully or negligently damage goods or property of the employer. Arkansas and Connecticut regulate discount of wages because of early payment. The rest of the states permit no deductions unless in accordance with certain procedure and with full consent of workers. The Australasian countries have no legislation on fines. In Austria, Belgium, Germany, and Holland fines are regulated in pursuance of a previous con- tract or published rules. In France fines cannot exceed one- fourth, 4 and in parts of Switzerland not more than one-half, of the daily wage. 5 In both these cases as well as in Holland the fines must go toward a workers' benefit fund. A clause dealing with deductions, not levied for inferior work or for destruction of property, appears in Massachu- setts, 6 where no deductions are to be made from the wages of women and minors when there is a stoppage of work owing to a breakdown of machinery, and the workers are not allowed to leave the mill. Foreign countries, while they sometimes limit the extent of deductions for materials used, still do not prohibit them. Although the labor codes generally state that 1 Great Britain, Departmental Committee on the Truck Acts, Report, 1908, Vol. I, p. 6. 2 Arkansas, Connecticut, Hawaii, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, New Jersey, Nevada, Ohio, and Texas. 3 Massachusetts, Laws 1909, C. 514, Sec. 114. Under the terms of this act fines for imperfect weaving may be levied only after the imper- fections have been pointed out and the amount agreed upon by both parties. Apparently these provisions did not sufficiently protect the weavers, for in 1911 another act was passed stating that "No employer shall impose a fine upon an employee engaged at weaving for imperfec- tions that may arise during the process of weaving" (Laws 1911, C. 584). The court, however, rendered the new law nugatory by its limited in- terpretation of the word "fine." (Commonwealth v. Lancaster Mills, 212 Mass. 315, 98 N. E. 864 (1912).) 4 Great Britain, Departmental Committee on the Truck Acts, Report, 1908, Vol. I, p. 95. 6 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 125. 6 Massachusetts, Laws 1909, C. 514, Sec. 119. 6o PRINCIPLES OF LABOR LEGISLATION prices shall not be excessive, this is a goal reached only by effective administration. (6) Mechanics' Liens and Wage Preference The idea that wages are to receive special treatment, that they are to be paid before other claims, that security is to be given for their payment, and that they shall be exempt up to a certain amount from execution, underlies legislation on mechanics' liens, on wages as preferred claims, and on wage ex- emption. The last of these subjects is treated elsewhere ; 1 here we consider the preferential treatment of the laborer as creditor. Mechanics' lien laws represent a stage in the progress to- ward wage preference, but they should not be confused with it. They are founded on the still older practice of giving contractors and builders a claim for payment on houses they built and the land that these were built on. In 1830 the first mechanics' lien law was passed by the New York legislature 2 and was based on the following considera- tions, set forth in a committee report : "The committee are credibly informed that the severe and heavy losses sustained by the laboring interests have arisen far more frequently from insufficient, reckless contractors, having nothing to lose, than from contractees. . . . They would be distinctly understood, declaring it as their un- divided opinion that a mortgage given to secure the payment of money lawfully borrowed, the justice of which no one will presume to dispute, is not a more equitable claim than that of the mechanic and laborer on the dwelling-house and other buildings, and ground on which the same are erected, so far as their claim and demand can be correctly ascertained." 3 Mechanics' lien legislation seeks to give the laborer a claim for the payment of what is due to him, backed by the security of the structure or land on which he has been employed. It exists in all the states, and extends to labor performed on public works, railroads, in mines, and on the land, as well as to lumbering, construction and repair of vessels, sawmilling, 1 See "Wage Exemption," p. 47. 2 New York, Laws 1830, C. 330. 3 New York Assembly, Documents, 1830, No. 24. INDIVIDUAL BARGAINING 61 and other occupations. Such liens are generally ranked as coming before other payments; and in many cases where contractors and subcontractors are entitled to benefit in a similar way, the wage-earner's claim is put first. 1 The next step was the provision that wages should be con- sidered as preferred claims. Nearly all the states and the federal government have laws providing that in cases of assignments, administrations, and receiverships due to death or bankruptcy, the wages of servants and employees, up to a definite sum and for work done within a limited time, shall be paid next after fees, costs, and taxes. 2 France has a law giving preference to wage payments. 3 Great Britain and her colo- nies include in their bankruptcy laws preferential payment claims, providing usually that salaries of clerks not exceeding $500 and wages of laborers not exceeding $125 shall have equal claim to payment with taxes and expenses. The British bankruptcy law 4 now includes national insurance contribu- tions and amounts due for workmen's compensation in this category. New Zealand has a bona fide contractors' and workmen's lien act resembling the American legislation. 5 3. THE LABORER AS TENANT (i) Classes of Agricultural Workers Of the 30,000,000 males over ten years of age engaged in gainful occupations in 1910, 10,700,000, or more than one- third, were employed in agriculture. Of this number some- thing less than 4,000,000 were owners operating their farms. 1 California, Colorado, Idaho, Illinois, Louisiana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Washington, West Virginia. 2 Alabama, Arizona, Arkansas, California, Oblorado, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Washington, Wisconsin, the Philippine Islands, and the United States. 3 Lois, Decrets, Arretes concernant la Reglementation du Travail, Bk. I, Ch. II, Sec. II, Art. 46, 47. 4 4 and 5 Geo. 5, C. 59, 1914. 6 New Zealand, Statutes 1892, No. 25. 62 PRINCIPLES OF LABOR LEGISLATION More than 2,000,000 were tenants, 1 and 4,700,000 were la- borers working for owners and tenants. But these figures do not represent the actual proportions of wage-earners and em- ployers in the sense of the wage bargain as understood in manufactures and other industries. Of the 4,700,000 laborers, 2,100,000 were members of the family of the owner or tenant, and, therefore, their labor contracts do not exhibit the strictly business relation of employer and employee in the modern wage bargain. Such labor problems as they present, from the standpoint of legislation, are mainly those of child labor. a. Hired Laborers. The remaining 2,600,000 are hired la- borers, and to them would be applicable labor laws similar to those enacted to protect laborers in other industries. How- ever, as a matter of fact, labor legislation in the United States has had very little to do with farm labor. Laws like those regarding workmen's compensation, safety, health, or hours of labor sometimes either specifically exclude agricultural labor from their operation or are not applicable. Other laws, such as laborers' liens, wage exemption, prohibition of in- voluntary servitude, and the like, are so general or funda- mental that they apply to farm labor. Hired laborers are of two classes, considerably different in their condition. About 200,000 of those enumerated appear to be "casual" laborers, hired usually by the day, and 2,400,- ooo are hired by the month or year. The number of casual laborers is doubtless greatly underestimated, for the Census enumeration is made in April, whereas the largest number of this class of laborers is employed during the harvest seasons from July to November. They are enumerated in April in other industries, and are the migratory laborers who appear in the logging-camps and ice harvests, as well as temporary laborers in other occupations. The number of 2,400,000 farm hands regularly employed is also understateef, because an uncertain number of tenants are really hired laborers under a special form of tenant con- tract and should be classed as employees rather than tenants. 1 Thirteenth Census of the United States, Vol. IV, 1910, p. 302. This figure is obtained by combining the estimates for agriculture and animal husbandry. The Census distinguishes the number of farms operated by owners and tenants, not the number of oumers and tenants; hence these numbers are estimated. INDIVIDUAL BARGAINING 63 b. Tenants. The Census gives the numbers of two kinds of tenants, 712,000 "cash" tenants and 1,528,000 "share" tenants. 1 By cash tenant is meant not one who pays rent in actual cash, but one whose rent is definitely fixed and cer- tain and is stipulated in advance in the contract either in dollars, in labor, or in products. It may be $7, ten bushels of wheat, or 100 pounds of cotton per acre. Evidently the "cash" tenant is a small capitalist, a contractor, or an em- ployer, since he invests his own money or labor and takes all of the risks of the business. His gains are profits rather than wages; his bargain with the landlord is a price bargain, not a wage bargain. The share tenants are more difficult to classify. They may be either small capitalists or simply farm laborers, and the Census does not distinguish between the two. A share tenant pays the landlord as rental a certain share of the product, as one-half, one- third, or one-quarter. In making such a con- tract the tenant would appear to be a contractor or capitalist, who takes, not indeed the whole risk of the business, but a part of the risk. Such is the case if he actually invests his own capital, such as horses, cattle, implements, and so on, and runs the risk of losing his capital on the chance of increasing it. He would figure the outcome as profit or loss. c. "Croppers" But if, on the other hand, the tenant "invests" nothing but his own labor, and the landlord fur- nishes all of the working capital, then the landlord is the capitalist-employer, the tenant is a laborer, and the bargain is a wage bargain. His wages, however, are not the stipulated daily or monthly wages received by a "hired man," but they are contingent wages, similar to those paid to a piece-worker, or, rather, to a sailor on a whaling-ship, who receives a share of the product at the end of the voyage. This system of wage payment is spoken of as "product sharing," to distinguish it from "profit sharing." 2 The terms "cropper" and "cropping contract" will be used herein to designate this kind of labor-tenant under 1 Thirteenth Census of the United States, Vol. V, 1913, p. 97. This includes among "share" tenants those given in the "leases" as "share- cash" an intermediate class. 2 D. P. Schloss, Methods of Industrial Remuneration, 1891, p. 249. 6 4 PRINCIPLES OF LABOR LEGISLATION the system of share tenancy. The terms originated in the southern states, where share contracts are most prevalent and where they account for the high percentage of tenancy. In 1910, 66.8 per cent, of the tenancy in the South was share tenancy, including both farmers and laborers on shares, while only 31.6 per cent, of northern and 1.6 per cent, of western farms were operated on a system of share tenancy. 1 In popular usage, the term "cropper" includes both the share farmer, or small capitalist, and the share laborer. Both are croppers. The courts, however, have settled upon the term "cropper" to indicate the laborer, 2 and, adopting this usage, we can distinguish the cropper, as a laborer whose wages are measured by a share of the product under the guise of a lease, from the share tenant, as a small capitalist paying rent. No reliable estimate can be made of the number of croppers. Indeed, the amount of capital owned by the farmer may be so small that he would be looked upon in other industries as scarcely more than a mechanic furnishing his tools and taking out work on a contract. The distinction is made in the laws of Alabama 3 which define a share tenant as one who owns his team, and the cropper as one whose landlord owns the team. The law of Texas, enacted in 1915,* is the first American law designed to regulate the rents of share tenants. It attempts to prevent the landlord from charging more than one-half of the value of the product if he furnishes everything except labor, and more than one-third of the grain and one-fourth of the cotton if the tenant furnishes all of the operating capital. Thus it distinguishes and regulates both the rent of the farmer and the wages of the cropper. In other states, where the legislature has not attempted to standardize or regulate the share contracts, the courts have been compelled to decide in each case as it arises whether the laborer is a cropper working for wages under a labor contract, or a tenant-farmer paying rent under a lease. If he is a cropper, then, in case of dispute, he would be awarded what 1 Thirteenth Census of the United States, Vol. V, 1913, p. 113. 2 Steel v. Frick, 56 Pa. St. 172 (1867); Harrison v. Ricks, 71 N. C. 7 (1874); Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888); Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180 (1886). 3 Alabama, Code 1907, vSecs. 4742, 4743. 4 Texas, Laws 1915, Article 5475 (3225). INDIVIDUAL BARGAINING 65 similar laborers in the locality receive as wages, regardless of the value of the crop. If he is a tenant-farmer he is awarded his share of the crop, regardless of what he might earn as wages. In order to decide the point, the courts look into the con- tract to discover which party has the control and direction of the farming operations and the legal possession of the crop at the end of the season. In brief, if the landlord gives orders as to cultivation, and has legal possession and the right to divide the crop and give the tenant his share, the contract is a labor contract. 1 But if the tenant is "his own boss" and has legal possession of the crop, and gives the landlord his share, the contract is a lease. 2 Generally it turns out that, in proportion as the tenant advances a larger and larger share of the working capital, the contract which he is able to make is a lease and gives him not only a larger share of the product, but also a chance to make a profit in addition to wages ; while the smaller the proportion of capital which he advances, the less is his share and the more nearly the contract becomes a labor contract. If the contract is a lease, the landlord has a preference lien on the crop for his rent. 3 If it is a labor contract, the laborer has a laborers' lien on it for his wages. 4 (2) Agricultural Labor Legislation The foregoing distinctions indicate differences in the kind of legislation needed to protect agricultural labor compared with that protecting industrial labor. The one modifies main- ly the law of landlord and tenant, the other that of employer and employee. Farming is, for the most part, a small-scale industry, and there is opportunity for individuals to rise into 1 Shoemaker v. Crawford, 82 Mo. App. 487 (1900); Kelly v. Rummer- field, 117 Wis. 620, 94 N. W. 649 (1903); Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062 (1892); Chase i>. McDonnell, 24 111. 237 (1860); Cutting v. Cox, 19 Vt. 517 (1847). 2 Taylor v. Bradley, 39 N. Y. 129 (1868); Neal v. Brandon, 70 Ark. 79, 66 S. W. 200 (1902); Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888). 3 Randall v. Ditch, 123 la. 582, 99 N. W. 190 (1904); Hopper v. Haines, 71 Md. 64, 18 Atl. 29, 20 Atl. 159 (1889); Keoleg v. Phelps, 80 Mich. 466, 45 N. W. 350 (1890); Wilson v. Stewart, 69 Ala. 302 (1881); Noe v. Layton, 69 Ark. 551, 64 S. W. 880 (1910). 4 Grisson v. Pickett, 98 N. C. 54, 3 S. E. 921 (1887). o 66 PRINCIPLES OF LABOR LEGISLATION the position of independent owners. Beginning, perhaps, as a casual laborer, the next step is that of the farm laborer hired by the month or by the year, and living with the family of the owner. Next, with a family of his own, the steps upward are cropper, share tenant, cash tenant, owner with mortgage, and, finally, ownership unencumbered. Legislation may aid or obstruct this upward movement. If the share tenant, whether cropper or farmer, is not per- mitted to acquire any title to such permanent improvements as he adds to the land, his condition is practically the same as that of the wage-earner, who has no title to his own prod- uct. Like the laborer, he tends to be kept permanently in that class. This is the condition of croppers and share tenants in the United States, and the result is seen in their frequent movement from farm to farm. Such tenants, with- out title to their " savings" in the form of improvements, can do but little in the way of accumulating the capital necessary to rise to the higher steps, and their instability and lack of incentive are equally serious factors in their own deterioration and in that of the soil. This condition received legislative attention first in Eng- land. There had been a strong agitation favoring the enact- ment of legislative measures to compensate tenants for im- provements made on the landlord's estate, but not until 1850 was a bill introduced into Parliament favoring a reasonable allowance for such improvements. The bill did not pass, but similar measures were brought before that body several times, and in 1875 an act was obtained stipulating the con- ditions under which an outgoing tenant was to be paid for improvements. However, no provision was made compelling landlords to contract under the law, and as a consequence the statute was ineffective. In 1883, a new bill, known as the agricultural holdings act, was passed, compelling all landlords to make their leases with tenants subject to compensation for improvements. Even with compensation for improvements it requires time and trials for the tenant or purchaser to find a suitable farm. Finding the tenant a farm has a direct relationship with the finding the laborer his job. 1 The importance of this prob- 1 See "Public Employment Exchanges," pp. 297-307. INDIVIDUAL BARGAINING 67 lem is keenly felt, as is shown in an investigation made by the United States Department of Agriculture. 1 In accord- ance with a statute enacted in 1905, New York state 2 estab- lished a bureau of information regarding farms for rent and sale and positions for agricultural laborers. It was claimed that this bureau had secured work for about 15,000 men on farms during the first three and a half years of its existence. 3 The bureau also issues a bulletin dealing with the farms to be disposed of throughout the state. Legislation of various countries also provides credit agencies to enable the tenant or farmer to acquire advances of capital necessary to secure permanency in his position. The Schultze Delitsch and Raifleisen banks in Germany and Austria, the Credit Foncier in France, the cooperative banks in Italy and Russia, are private cooperative credit systems operating under government supervision. 4 New Zealand, Australia, Ireland, and the provinces of Nova Scotia and New Brunswick in Canada make loans to farmers, as do also Idaho, Indiana, Iowa, North Dakota, Oklahoma, Oregon, South Dakota, and Utah. 5 Congress in 1916 passed a rural credit law, providing for the formation of a cooperative rural credit system on a national scale. In New Zealand the "advances to settlers'* system is ad- ministered by the New Zealand State-guaranteed Advances Office. Loans are repaid to the advances office in semiannual instalments of principal and interest. Interest is charged at the rate of 5 per cent, a year, but this rate is reduced to 4^ per cent, if payments of interest and principal are promptly made. 6 In regulating the contract of landlord and tenant the prob- lem of administration is similar to that of regulating the 1 United States Department of Agriculture, Statistics Bulletin No. 94, 1912, "Supply of Farm Labor," George K. Holmes. 2 New York, Laws 1905, C. 243. 3 New York State Commissioner of Agriculture, Seventeenth Annual Report, 1910, p. 164. 4 American Commission on Agricultural Cooperation and Rural Credit in Europe, Report, Part I, 1913, pp. 24, 181, 182, 237, 438, 63d Congress, 1st Session, Senate Document No. 214. 5 Wisconsin State Board of Public Affairs, Bulletin on State Loans to Farmers, 1913, p. 4. 6 Ibid., pp. 145. 68 PRINCIPLES OF LABOR LEGISLATION contract of employer and employee. At first the matter is left to the courts as is the case with the Alabama and Texas laws and the British legislation above mentioned. Afterward it is found that the tenant, like the wage-earner, is unable to avail himself of the aid of the courts. Then, an administrative body or commission is created to deal with each contract as it arises. In the case of the tenant contract, it is the highly inflated value of land that offers the chief obstacle to the laborer or cropper in advancing to the position of owner. This obstacle was attacked in Ireland, in 1881, by the crea- tion of a land commission to fix rents. The commission reduced rents 15 to 20 per cent. Later, when the govern- ment began to make loans at low rates of interest, in order to encourage farm ownership, and then began to compel the landlords to sell to their tenants, the land commission fixed the fair value of the land. Otherwise, the government loans, at 3 per cent, interest, would have served only to inflate land values further, and the landlord would have absorbed the benefit intended for the tenant. Thus the Irish Land Com- mission does for landlord and tenant what a public utility commission does for corporation and consumer, or a mini- mum wage commission for employer and employee. 1 4. THE LABORER AS COMPETITOR From one point of view all labor legislation has as its ob- ject the protection of the laborer as a competitor. The wage- bargaining power of men is weakened by the competition of women and children, hence a law restricting the hours of women and children may also be looked upon as a law to protect men in their bargaining power. The same is true in a different way of industrial education and free schools, for they tend to reduce the competition for the poorly paid jobs by increasing the efficiency and the wage-earning power of laborers who otherwise would be serious competitors. But for these classes of legislation the protection of the laborer as 1 See Irish land acts of 1881, 1885, 1903, and 1909 in the English statutes; Cant- Wall, Ireland under the Land Acts; American Com- mission on Agricultural Cooperation and Rural Credit, Report, p. 865, 63d Congress, ist Session, Senate Document; No, 214. INDIVIDUAL BARGAINING 69 a competitor is not the main object. There are two classes of legislation, however, of which it may be said that the main purpose has been to protect the American workman from competition of poorly paid laborers: (i) legislation on immi- gration, especially the laws against induced immigration and the Chinese exclusion laws; (2) legislation as to the sale of goods manufactured by convicts. (i) Protection against Immigrants Immigration legislation tends more and more to develop along protective lines. At first a country encourages people to come, in order to develop its resources ; later means have to be found to safeguard the interests of the existing population. There are four protective purposes which are served by immigration legislation. The first is the social protection of the community generally. It is obvious that every state will regard certain classes as objectionable ; hence the prohibitions that the United States puts on the landing of prostitutes (since 1875), criminals (1875), professional beggars (1903). Polyga- mists (1891) and anarchists (1903) are excluded, partly on social and partly on political grounds. The exclusion of Orientals (1882), again, may be justified on the principle that they are unlikely to live successfully together with the other races in America. Since political offenders are on a different level from ordinary offenders against the law, they have al- ways been exempt from such exclusion (1875). A secojKl kind of protection, that of the national health, is afforded by the laws which attempt to keep out those immigrants suffering from contagious disease (1891), es- pecially from tuberculosis (1907). A third type of excluded class is made up of those persons who are looked upon as constituting a danger to the tax- paying classes. Legislation designed to keep out persons likely to become a public charge (1882) aims at protecting the tax- payer from having to support such individuals. The fear that lunatics, idiots, or epileptics may also become charges on the community is chiefly accountable for the prohibition (1891) against their coming into the country. Again, the repeated efforts which were made to introduce a literacy test, culmi- 70 PRINCIPLES OF LABOR LEGISLATION nating in success, over the President's veto, in 1917, may have been inspired partly by a feeling that the illiterate are more likely to become destitute than others. A head tax, generally used for revenue alone, may at times become a sort of property qualification. In the United States it was at first 50 cents (1882) and has been gradually raised to $8 (1917), which is not exactly a prohibitive figure; but in Canada, it is fixed at $500 for Chinese who do not belong to one of several enumerated professional classes. 1 Finally, per- sons traveling on assisted passages who cannot prove that they do not belong to any of the excluded classes are not al- lowed to land (1891); after being dependent on others such persons might easily come to be dependent on the state. The fourth kind of protection put forth by the law over the people of this country is, from the standpoint of labor legislation, the most important. The contrast between the protection afforded to American goods in the commodity market and the lack of any such effort to lessen the competi- tion of labor in the labor market was early noticed, and efforts have been made since 1868 to control immigration after the example of the tariff. In that year the act of 1864 encourag- ing immigration was repealed 2 and a start was given to a new, negative, policy with regard to immigration. This new policy had particular reference to what is commonly but in- accurately called "contract labor," or induced immigration. a. Induced Immigration. The eighteenth century type of immigration had been very largely due to inducement, some- times, indeed, to compulsion. After the first quarter of the nineteenth century indentured labor 3 had practically ceased to exist; but in 1864 a stimulus was given (owing to the war- time scarcity of labor) to a similar system of bringing numbers of Europeans here to work under contract, by a law 4 which provided that such contracts should be valid and enforce- able in the United States courts. This, it must be remem- bered, was before the passage of the thirteenth amendment. Employers took advantage of the law in order to bring over 1 Immigration Commission, Reports, Vol. XL, 1911, p. 62. 2 United States, Laws 1868, C. 38, Sec. 4. 3 See "Indentured Service," p. 41. 4 United States, Laws 1864, C. 246. INDIVIDUAL BARGAINING 71 foreign laborers. Companies were formed for the same pur- pose; and the American labor market was threatened with a huge oversupply of cheap foreign labor. In spite of agitation in Congress and feeling in the country, it was not until 1868 that this act was repealed, nor until 1885 that the inducement of immigration was formally forbidden by law. The contract labor law of 1885 1 forbade the assistance or encouragement of immigrants coming here under contract to work. The act applied solely to laborers, for those professions which send representatives abroad were expressly exempted, as were also domestic servants and skilled workmen in new industries, provided labor of the same kind could not be ob- tained otherwise. Individuals were allowed to assist friends and relatives to come to America. This successful reversal of policy from the act of 1864 was due in a large measure to the efforts of the Knights of Labor and the trade unions. It answered the demand of the working class as a whole, and especially that part of it which was organized, for effective protection against the competition of the masses of immi- grants who were now entering the country. The number of immigrants, which had decreased during the 'seventies, rose to 457,257 in 1880, 669,431 in 1881, and 788,992 in i882. 2 Another immigration act was passed in 1891, which had as one of its objects the prevention of induced immigration. 3 The government was beginning to make it more difficult for a man who had previously obtained work to come into the United States. Transportation companies were now for- bidden to solicit or encourage immigration, and the practice of issuing advertisements in foreign countries promising em- ployment here was prohibited. At the same time the efforts of Congress to make the contract labor law a real deterrent were met by a silent opposition from the courts, which continued to construe the law strictly and to treat it as of limited applica- tion until 1907, when the terms of the law itself were changed. But during the 'eighties and 'nineties the change from the "old immigration" to the "new immigration" was taking place; that is, the great bulk of the people no longer came 1 United States, Laws 1885, C. 164. 2 Immigration Commission, Reports, Vol. Ill, 1911, p. 4. 3 United States, Laws 1891, C. 551. 72 PRINCIPLES OF LABOR LEGISLATION from Germany, the United Kingdom, and Scandinavia, but from southern Italy, Austria-Hungary, Russia, and latterly Greece. These people had, in general, a lower standard of life than the Americans and the earlier immigrants. While it is true that in many cases where they replaced native labor this adjustment was favorable to the Americans, in that these were raised thereby to more responsible and better paid posi- tions, or else went farther west or southwest, as did the coal-miners, attracted by better wages, still it cannot be denied that the newer immigrants were as a rule willing to work for less wages, to endure harder conditions, and to lower the general plane of living of unskilled laborers. It is on account of this displacement of American labor by immigrant labor, a phenomenon which has been at times emphasized to the point of exaggeration, that the working class has so eagerly desired the restriction of immigration ; l and the contract labor laws were the first attempt to do this. It was not necessary to enforce the law against farm laborers, because from them no such competition was feared. A later revision of the contract labor law was made in the general immigration act of 1917. 2 This time the scope of the words "contract laborer" was enlarged to include any one "induced, assisted, encouraged, or solicited" to immigrate by any kind of promise or agreement, express or implied, true or false, to find employment. The Immigration Commission of 1911 said of even the less sweeping law of 1907 that "it is difficult to conceive how the letter of the law respecting the importation of contract laborers could be more stringent than at present"; and in consequence of this trend in the law the courts have been obliged to give up their attitude of considering as prohibited by the law only those transactions in which a contract could be proved. The cases on the subject bring out the increasing strict- ness of the law. In United States v. Edgar, 3 decided under the law of 1885, the prosecution of an employer who had im- ported labor from abroad failed, because no contract could 1 For a discussion of the economic effects of immigration from opposite points of view, see J. W. Jenks and W. J. Lauck, Ttie Immigration Prob- lem, and I. A. Hourwich, Immigration and Labor. 2 United States, Laws 1916-1917, C. 29. 3 United States v. Edgar, I C. C. A. 49, 48 Fed. 91 (1891). INDIVIDUAL BARGAINING 73 be proved. In United States v. Gay 1 it was held that the law of 1891 was intended to exclude only unskilled manual laborers. After the act of 1907, as already pointed out, these doctrines could no longer be held, and in 1914 we had a case in which a fine of $1,000 was exacted for each of forty-five contract laborers brought across the Mexican border for the purpose of helping to construct a railway. 2 That laws against induced immigration, although in force for thirty-five years, have done very little to protect the Ameri- can laboring man from the competition of immigrants is evi- dent from two facts: the enormous numbers of unskilled laborers who have since entered the United States, and the efforts that were constantly being made to secure other means, notably a literacy test, for creating a "labor protective tariff." 3 With regard to the first point, it may be mentioned that during the fiscal year ending June 30, 1914, the latest before the war, the number of "laborers" who entered the United States was 226,407, and the number of skilled workmen was 173, 208. 4 In Australia a law 5 similar to the American, but less rigid, excludes persons seeking to enter the country on a contract of employment. The minister for external affairs may, how- ever, admit such an immigrant (a) if the contract is not made in contemplation of affecting an industrial dispute; (b) if the remuneration and other conditions of employment are as advantageous as those current for workers of the same class at the place where the contract is to be performed. A further clause, which applies only to persons not British subjects or their descendants, and therefore to very few emigrants to Australia, provides that there must be difficulty in ttttwern- ployer's obtaining within the Commonwealth a worker of equal 1 United States v. Gay, 37 C. C. A. 46, 95 Fed. 226 (1899). 2 Grant Bros. Construction Co. v. U. S., 232 U. S. 647, 34 Sup. Ct. 452 (1914). 3 In the effort to secure the desired protection by another method, the people of Arizona in 1914 enacted by initiative and referendum a law requiring employers of more than five persons to engage at least 80 per cent, qualified electors or citizens. This statute was declared uncon- stitutional by the United States Supreme Court as denying the equal protection of the laws. (Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7 (1915)- 4 Commissioner General of Immigration, Report, 1914, pp. 40, 41. 5 Act No. 19 of 1905. 74 PRINCIPLES OF LABOR LEGISLATION skill and efficiency. The states belonging to the Common- wealth offer assisted passages to agricultural workers and to domestic servants, whose ranks are by no means overcrowded. 1 In the Union of South Africa, the government endeavors to maintain good conditions in the labor market by preventing unemployment and directly assuring itself that the competi- tion of every immigrant is "fair." Every immigrant of Euro- pean descent belonging to the working class is obliged to have a certificate, stating that he has been engaged to serve, im- mediately upon his arrival, an employer of repute at adequate wages, for a period of time to be fixed in said conditions, but not to be less than one year. 2 The terms of this law are ex- actly the opposite of the American provisions against induced labor; yet the idea of protecting the laborer from competition with an immigrant of lower standards is common to both. b. Exclusion of Orientals. The danger to the laborer from the competition of European immigrants may be lessened and gradually done away with as these become Americanized. Trade unionism, especially, is a force which is giving the im- migrant the same standards as the American. In the case of the Oriental races, however, this "happy ending" to the story is not to be expected. Individual Chinese, Japanese, and Hindus may settle down to lead Western lives and adopt Western ideas; but the great mass of their countrymen who emigrate do so without any desire to change their ways of living. It is a well-known fact that these ways are much more economical than those of an American or European, and that therefore an Oriental can accept wages which to a white man would mean starvation. No doubt race feeling enters to some extent into the composition of laws excluding Chinese, Japanese, and Hindus; but more deep-lying is the fear of the competitive worker. This is shown by the fact that the employing classes welcome Orientals, whom they find efficient, polite, and contented. Miss Eaves says of the early Cali- fornian opposition to the Chinese: The legislation on Oriental labor sprang from the people. . . . The laws . . . were the product of the actual experiences sometimes 1 Commonwealth of Australia, Official Yearbook, 1914, p. 1027. 2 South Africa, Laws 1913, No. 22 (immigrants' regulation act). INDIVIDUAL BARGAINING 75 of the race prejudices of those in the humblest ranks of society. For thirty years the working people persistently made known their needs, winning at last a practically unanimous support in the state, so that all classes united to urge the tardy federal legislation for exclusion. 1 The report of the federal Joint Special Committee to In- vestigate Chinese Immigration, which was published in 1877, is filled with complaints against the Chinese on the part of American workingmen who asserted that they could not com- pete with Chinese. A point very often made was that the average American workman is a married man with a family, while Chinamen would come to California alone and expect to earn only what would keep a single man. Others said that Chinese labor was less efficient than white labor. 2 One wit- ness asserted that he used to earn from $20 to $21 a week at broom-making, but that in competition with the Chinese he could make only $i4.8g. 3 It was this agitation by the people on the Pacific coast, who had learned to fear the industrial competition of the Chinese, that led to federal legislation and finally to the exclusion of the Chinese laborers. The Burlingame Treaty of 1868 had settled nothing, for it merely proclaimed the right of the Chinese to settle where they would, while denying them the right of naturalization. 4 Another treaty, concluded in 1880, gave the American government the right "to regulate, limit, or suspend" Chinese immigration, but not absolutely to pro- hibit it. Two years later the exclusion of Chinese laborers went into effect, when an act was passed forbidding them to enter the country for the next ten years. 5 This policy has been kept up ever since in laws and treaties which have gradual!}' grown more strict. On the same principle Jap- anese laborers who are not coming to the United States in order "to resume a formerly acquired domicile, to join a parent, wife, or children residing there, or to assume active control of an already possessed interest in a farming enter- 1 Lucile Eaves, History of California Labor Legislation, 1910, p. 115. 2 Joint Special Committee to Investigate Chinese Immigration, Report, pp. 346, 347, 44th Congress, 26. Session, Senate Report No. 689, 1877. * Ibid., p. 360. 4 Immigration Commission, Reports, Vol. XXXIX, 1911, p. 69. 6 United States, Laws 1882, C. 126. 76 PRINCIPLES OF LABOR LEGISLATION prise in this country," are refused passports by the Japanese government, in accordance with a treaty agreement of 1907. l The British self-governing colonies have had a similar ex- perience to that of the United States, and have met it by practically the same means. Canada excludes the Chinese laborers by making them pay a head tax of $500 ; the Japanese, by an agreement with the government of that country, that not more than 400 Japanese are to enter Canada annually; and the Hindus, by a head tax of $200 and the reo^iirement that they shall come by a "continuous journey" from India, which cannot be done by the existing routes. 2 Australia and New Zealand use a literacy test to keep out Chinese, who must write fifty words (Australia) or a signed application for admission (New Zealand) in a European language. 3 c. The Literacy Test. The British self-governing colonies have found in the literacy test a weapon against Asiatic im- migration. In this country a long struggle was made to apply to all immigrants a test of this kind, succeeding in 1917 over the Presidential veto which had three times defeated earlier Congressional action in this direction. First introduced unsuccessfully in Congress in 1892, the principle of the literacy test was embodied in a bill of 1895 and survived through numerous modifications until two years later it had passed the House and Senate. 4 The intention of the bill was to keep out not only the criminal and pauper classes, but also the southern and eastern Europeans, very many of whom were illiterate. President Cleveland, however, vetoed it as being un-American and illiberal, and also as unlikely to have any good effect on the prevailing depression or on violence in labor troubles and racial degeneration. The House passed the bill over the President's veto by a majority of 193 to 37, but no action was taken in the Senate and the bill was consequently not enacted into law. The next attempt to secure a literacy test was made under the Taft administration. A bill was introduced into the Senate in 1911, containing a clause which was practically 1 United States, Laws 1907, C. 1134. 2 Immigration Commission, Reports, Vol. XL, p. 75. 3 Ibid., Abstracts of Reports, Vol. II, pp. 633, 637. Ibid., Reports, Vol. XXXIX, p. 47. INDIVIDUAL BARGAINING 77 copied from the bill mentioned before. 1 It was passed by the House and Senate, but President Taft vetoed it, February 14, 1913. The Senate thereupon passed the bill again, but in the House the vote fell short of the required two-thirds ma- jority and the bill therefore had to drop. 2 Another bill including a literacy test of the usual type was introduced in the House in igi3. 3 The House and Senate voted favorably on this bill and it went to President Wilson on January 16, 1915. He returned the bill with his veto, giving, as his reason, that this bill embodied a radical departure from the traditional policy of the country, in almost entirely removing the right of political asylum and in ex- cluding those who have missed the opportunity of education, without regard to their character or capacity. Moreover, he did not believe that the bill represented the will of the people, and for these reasons he refused to sign it. 4 The House again could not raise a two-thirds majority in favor of the bill, and so, like its predecessors, it came to nothing. 5 Finally in 1916 an immigration measure containing the literacy test was again introduced and passed by Congress. It was again vetoed by President Wilson, 6 but this time the necessary two-thirds majority was secured in both Houses to adopt it over his veto, and it became a law on February 5, I9i7- 7 Persons physically capable of reading, and over six- teen years of age, are excluded if they cannot read some lan- guage, except near relatives of admissible aliens and those seeking entrance to escape religious persecution. During the first fiscal year after its going into effect, the reading test served to exclude 1,598 immigrants. 8 However, the sharp drop of immigration due to the war 110,618 entering in the year ending June 30, 1918, as compared with 1,403,081 in the year ending June 30, 1914 indicates that the exclusion of new-comers will be a much less pressing question for a number 1 Congressional Record, Vol. XLVII, 1911, p. 3669. 2 Ibid., Vol. XLIX, 1913, p. 3429. 3 Ibid., Vol. L, 1913, p. 2013. 4 63d Congress, 3d Session, H. R. Document No. 1527. 5 Congressional Record, Vol. LII, 1915, p. 3078. 6 64th Congress, 2d Session, H. R. Document No. 2003. 7 United States, Laws 1916-1917, C. 29. 8 Commissioner General of Immigration, Report, 1918, p. 23. 78 PRINCIPLES OF LABOR LEGISLATION of years. In November, 1919, the first official International Labor Conference called under the League of Nations, in session at Washington, adopted as part of its proposed pro- gram on unemployment the recommendation that ' ' recruiting of bodies of workers in one country with a view to their em- ployment in another country should be permitted only by mutual agreement between the countries concerned and after consultation with employers and workers in each country in the industries concerned." x (2) Protection against Convict Labor Varying estimates have been made at different times of the number of convicts engaged in productive industry in the United States. Perhaps one of the best estimates was that of 51,000 made by the Commissioner of Labor in I905. 2 The value of goods sold within and outside the state in which the labor was performed amounted to $27,000,000 in the same year. 3 The industries mainly affected by the competition of convict labor are the manufacture of boots and shoes, cloth- ing, especially workmen's shirts and overalls, furniture, brooms and brushes, stove hollow ware and stoves, harness and whips, binder twine, cooperage (in Chicago), farm wagons, and stone work. Wages paid to convicts by private contractors who hire them from the state are, of course, very low. The maximum amount reached under the contract system is about 75 cents a day. The problem raised by permitting convicts' work to be sold in the open market in competition with the product of free labor has been expressed as follows : The two investigations (of the Bureau of Labor, 1885 and 1895) showed that the convict product as a whole was very small when compared with the entire product of free labor in the United States. But the employers of free labor and their workmen unite in affirming that when any convict-made product is placed in competition with the product of free labor the market becomes demoralized, even a 1 American Labor Legislation Review, Vol. IX, No. 4, December, 1919, pp. 533, 534. 2 United States Commissioner of Labor, Twentieth Annual Report, 1904, p. 1.1. 3 Ibid., pp. 474, 475- INDIVIDUAL BARGAINING 79 small sale affecting prices far out of proportion to the amount of the sale. . . . Every state objects to being made the market for con- vict-made goods produced in other states. 1 The prisons do not stand in the normal relation of producers to the commodity market; they go on working, regardless of the fluctuations of business; they can undersell any com- petitor, for they do not have to meet the usual costs of pro- duction and in the last resort they can always fall back on the taxes. Manufacturers sometimes assert that they do not feel the competition of convict labor except in times of de- pression. 2 The employer of "free labor" can meet this competition in several ways. He may adulterate or otherwise lower the quality of his goods so as to lower his cost of production, or he may give up the particular branch of his trade in which the competition of convict labor is felt. Instances can, how- ever, be given of whole industries which have been practically absorbed by convict labor in certain localities, such as the cooperage industry in Chicago during the 'eighties. The problem of convict-labor competition takes an even more serious aspect when it is considered in respect to inter- state commerce. Pressure brought to bear on the govern- ment of any one particular state is often successful in getting a law passed forbidding the sale of convict-made goods within that state; but this only means that convict-made products from other states are brought in and sold there. In fact, the publicity given to the system of convict contract labor when a bill to abolish it is being discussed is apt to attract attention to the fact that a new market will be opened for the convict-made goods of other states. It has been estimated that only 34.7 per cent, of convict-made goods are sold within the state of origin, and 65.3 per cent, in other states. 3 Many of the states have laws designed to put some restraint on competition between convict and free labor. No law has, however, yet been enacted approaching in simplicity a pro- 1 United States Commissioner of Labor, Twentieth Annual Report, pp. ii, 23. 2 Ibid., p. 59 (statement of a Minnesota shoe manufacturer). 3 Ibid., p. 497. So PRINCIPLES OF LABOR LEGISLATION posal made in the 63d Congress, that the convict should be put to remunerative work, charged with his upkeep, and have his labor credited to him; that he should in fact be put on the same competitive footing as an ordinary laborer. 1 The laws bearing directly on the subject of competition are for the most part of recent origin and may be divided into three main classes: (i) The general statement that convicts are not to be employed where their work conflicts with free labor (as in Illinois, New Jersey, Minnesota); (2) the prohibition of convict labor in certain forms of industry e. g., the manu- facture of tin cans for fruit-packing (as in Iowa, Maryland, Oregon, Wyoming) Washington has a provision the reverse of this, by which it refuses to allow its convicts to manufacture anything save jute fabrics and bricks, while Arizona provides that convicts shall be set to work on streets and highways, when they do not compete with free labor; (3) the distribu- tion of convicts among diversified lines of industry, sometimes coupled with the limitation of the number to be employed in a given industry (as in Indiana, Massachusetts, Nebraska, Ohio, Pennsylvania). A few other states have adopted dif- ferent plans. California has a constitutional provision for- bidding the sale of convict-made goods, unless specifically sanctioned by law. Massachusetts, in addition to the pro- vision mentioned above, stipulates that convict-made goods must be sold at not less than wholesale prices. The con- stitution of Michigan forbids the teaching of a trade to convicts, excepting only the manufacture of such articles as are mainly imported into the state. More recently New Jer- sey enacted the provision that prisoners are not to be used on public work to replace free laborers who are locked out or on strike. 2 Indirect methods of legislating against the competition of convict labor are laws providing that convict-made goods shall be labeled, as in Pennsylvania, Montana, and other states, or that dealers in such goods shall have a license, as in New York. The most effective kind of law is probably the pro- vision that all goods manufactured in prisons shall be for the use of the state (the "state use" system). Backed by satis- 1 Congressional Record, Vol. LI, 1914, p. 4294. 2 New Jersey, Laws 1918, C. 147. INDIVIDUAL BARGAINING 81 factory experience under a federal executive order during the waf, the movement is growing to employ convicts exclusively on the state use system, at wages based on the prevailing rate in the locality. Federal legislation has been attempted for the last thirty years, but nothing has as yet been accomplished. In the 63d Congress the proposal was made to subject to the law of a state convict-made goods imported into it, 1 which, it was hoped, would check interstate commerce in these goods. The opinion has often been expressed that, if such a law were enacted, the competition of convict labor with free labor would cease. Up to the present, however, the attempts to get such legislation enacted have met with no success. 5. LEGAL AID AND INDUSTRIAL COURTS We have seen how modern legislation has attempted to give to the individual wage-earner increasing privileges and to place him more nearly on an equality with his employer. Yet these privileges are available to him only so far as the state actually enforces them. We shall see that, in the case of factory legislation, 2 the early statutes assumed that the employee would initiate proceedings in court, with the aid of the ordinary officers of law, to enforce the safety and health laws. Not until many years had passed did the state provide special police, the factory inspectors, to relieve the laborer of this impossible obligation. So in these more fundamental rights growing out of the labor contract the state leaves to the laborer the duty of realizing upon them through the ordinary means of prosecution in court. But poverty, ignorance, and the technicalities of law often combine to set the remedies beyond his reach. "From birth to death," says a report of the New York Legal Aid Society, 3 "the poor man is the prey of a host of petty swindlers. He is educated to believe that justice is free, and he finds that, to get it, he must pay a lawyer a price he cannot afford." To realize justice he must appeal to charity. Attorneys, in 1 63d Congress, 26. Session, H. R. 5601. 2 See Chapter IX, "Administration." 8 Thirty-eighth Annual Report, 1913, p. 23. 82 PRINCIPLES OF LABOR LEGISLATION countless individual cases, have given their aid without price, but it cannot be expected that they can meet the need with- out neglecting their regular clients. Yet without their aid the chance of the laborer's success in the legal battle is negligible. The reports of legal aid societies are filled with cases of in- justice that call for an attorney. Wages are withheld. Pawn- brokers and "loan sharks" command usurious rates of interest on small loans, and compel their victims to sign papers, such as chattel mortgages and wage assignments, of whose contents they are ignorant. Wage exemption laws are nullified by garnishment proceedings brought against the employer to at- tach wages not yet paid. The laborer must then have an attorney to secure the release of his wages, and he may lose his position, for employers often make it a rule to discharge employees whose wages are garnisheed. Thus, even the threat of garnishment may serve, not only to nullify his exemptions, but to force him to pay unjust claims out of wages not exempt. Foreigners are a class especially exposed to fraud. The abuses of peonage, vagrancy laws, and the padrone system have already been mentioned. 1 Against these invasions of their legal rights wage-earners are for the most part helpless to defend themselves. The majority of their grievances involve small amounts which do not justify the employment of a lawyer. Besides, there are the initial court costs, such as fees for filing, fees for serving summonses and subpoenas and for attaching property, and fees to clerks of court in contested cases. To the man with a small claim the remedy may cost more than the result. (i) Private and Public Legal Aid To remedy tnese abuses, private charity has found a large field. Legal aid societies have been organized in some forty American cities. Their object is "to render legal aid and assistance gratuitously to all who may appear worthy thereof, and who from poverty are unable to procure it." The first was started by certain German merchants in New York in 1 See "Peonage," p. 37; "Padrone System," p. 46. 2 Legal Aid Society of Philadelphia, Thirteenth Annual Report, 1906, Constitution, Art. I, Sec. 2. INDIVIDUAL BARGAINING 83 1876 to help poor German immigrants, and was called the German Law Protection Society, but soon extended its aid to others. In 1890 Arthur von Briesen, called the "father of the legal aid society movement," became president and the name was changed to the Legal Aid Society of New York. The society has confined its work to wage-earners, but with- out regard to nationality, race, or religion. The applicant must be one whose claim is too small or who is too poor to hire an attorney, a poor man being defined as one whose in- come may be just sufficient to maintain him, but not sufficient for extraordinary demands. It is the aim of the society to cooperate with and not to compete with other lawyers. Its attorneys are under agreement to have no other legal business and they are not permitted to recommend any particular attorney to applicants whom the society may reject. A case to be accepted must be unquestionably meritorious, and this is ascertained by investigation and an impartial hearing of both sides. Finally, the society makes every effort to settle cases out of court, and, up to the moment of trial, if a reason- able offer of settlement is made, advises its client to accept. The policy is to discourage litigation in such a way as to pro- tect the rights of all. In 1918 there were only 1,656 appear- ances at court or before other tribunals in the course of 38,287 cases handled by the society. 1 From New York, legal aid societies have spread throughout the United States and Europe. In the United States they are generally unincorporated voluntary associations, conducted, with one exception, 2 by private individuals. In 1911 the first national conference of legal aid societies was held in Pitts- burgh, thirteen of the forty organizations in the country being represented. The second was held in New York in 1912, with delegates from sixteen societies. At this time the National Association of Legal Aid Societies was established, the objects being to give publicity to the work, to bring about coopera- tion and increased efficiency, and to encourage the formation of new societies. 3 1 New York Legal Aid Society, Forty-third Annual Report, 1918, pp. 4, 49, 5- 2 Kansas City, Mo. 3 Chicago Legal Aid Society, Bulletin No. 2, 1912-1913, p. 3. 84 PRINCIPLES OF LABOR LEGISLATION The legal aid movement has flourished especially in Ger- many. In 1911, there were 1,016 societies 1 which in 1910 had 1,546,971 cases. In 1913, they held a convention at Nuremberg, which was attended by delegates from the United States, Denmark, Holland, Belgium, Austria, and Switzerland. In London, the "Poor Man's Lawyer's Association," with "centers" in settlements and missions, gives gratuitous legal advice to persons who cannot afford a solicitor, but does not furnish assistance in court. 2 It is sometimes objected that legal aid will encourage litigation, but the record of cases settled out of court by legal aid societies does not support this view. So far legal aid is almost entirely a private enterprise, and, excellent as has been the work, it is restricted to a few of the larger cities. Even there the work has been seriously ham- pered by lack of funds, a handicap repeatedly mentioned in the reports. There is, accordingly, an increasing demand that legal aid be made a function of government and thus put within the reach of all. Several attempts in this direction have been made in the United States. Kansas City, Mo., has the distinction of possessing the only municipal free legal aid bureau in the United States. It was organized as a depart- ment under the board of public welfare, in August, 19 io. 3 Los Angeles County, Calif. , was the first to establish the office of public defender, 4 the duties in civil cases being the prosecu- tion of actions for the collection of wages and other demands of persons who cannot afford counsel, in cases where the sum involved does not exceed $100. This officer also de- fends such persons in civil litigation, when they are being unjustly harassed. Costs are paid from the county treasury. Similar officers were within the next few years appointed in half a dozen other cities, including Portland, Ore., and Minne- apolis, Minn., while elsewhere, as in New York City, com- mittees of "voluntary defenders" sprang up. Though work of this nature is efficacious in obtaining justice and reducing J W. E. Walz, "Legal Aid Societies, Their Nature, History, Scope, Methods, and Results," The Green Bag, Vol. XXVI, 1914, p. 101. 2 Arthur Blott, "Legal Dispensaries in London," Legal Aid Review, Vol. IV, 1906, No. 3. 3 See Board of Public Welfare, Kansas City, Mo., Reports. 4 Los Angeles County Charter, Sec. 23. Became effective July i, 1913. INDIVIDUAL BARGAINING 85 its expense for the poor man, the question of the law's delay has not been solved. The public defender does not have power to hear and determine questions involving the payment of wages. His findings might be made final on all questions of fact, and, when the findings are filed in court, judgment might be entered accordingly. x The public defender would thus have the functions of an industrial court as later described. A provision for the collection of wages in California is the payment of wages act of 1911. It provides for immediate payment of wages due to a discharged employee and for pay- ment in five days to an employee not having a definite con- tract who quits or resigns. 2 All other wages fall due at least once a month, and must not be withheld more than fifteen days after that time. In November, 1914, the act was de- clared unconstitutional by a district court on the ground that in effect it permitted imprisonment for debt, which the state constitution prohibits except in case of fraud. 3 Although the statute did not provide imprisonment as a penalty and was silent as to the process by which the court might obtain juris- diction of the person of the offender, in the test case arrest and detention pending a hearing were the means used. Ac- cordingly, in 1915, an amendment to the payment of wages law was passed. 4 Instead of the earlier $500 fine for violation if an employer fails to pay in full within five days after the same are due, the wages of an employee who leaves or is dis- charged are to continue at the same rate until paid, or until action is commenced, but in no case after thirty days. No employee who refuses or avoids payment is entitled to benefit under the act for such time as he avoids payment. Wilful refusal to pay for labor, with intent to secure a discount, or to harass or defraud, constitutes a misdemeanor. The bureau of labor statistics enforces the act. During the year ending June 30, 1918, no fewer than 8,058 claims for wages were filed, and 4,118 claims were collected, amounting to $i 20,841. 2o. 5 1 Recommended by the public defender in a letter to the Milwaukee Bar Association, March, 1914. 2 California, Laws 1911, C. 92. 3 Ex parte Crane, On Habeas Corpus, Crim. 560, November 23, 1914. 4 California, Laws 1915, C. 142. 6 California, Bureau of Labor Statistics, Eighteenth Biennial Report, 1917-1918, p. 18. 86 PRINCIPLES OF LABOR LEGISLATION The majority of cases are settled within three days of filing the claim. A marked decrease during 1917 and 1918 in the number of claims filed and the amount collected is interpreted by the bureau as an indication of its effectiveness, employers avoiding intervention by adjusting differences before they are taken before the authorities. In 1910, following the recommendation of a state immigra- tion commission appointed to investigate the condition of aliens in the state, the legislature of New York created a bureau of industries and immigration subordinate to the de- partment of labor, whose object was to give newly arrived im- migrants a fair start. This was to be done by securing to aliens a hearing for complaints in their own language, the bureau to act as mediator in securing the enforcement of existing laws to prevent exploitation. The chief investigator brings the parties together at a hearing and tries to adjust the differences. If he fails, a civil case is turned over to the Legal Aid Society. This system of state legal aid for immigrants was extended to all wage-earners by a section of the New York industrial commission law of March, 1915: "The commission shall ren- der all aid and assistance necessary for the enforcement of any claim by an employee against his employer, which the commission finds reasonable and just and for the protection of employees from frauds, extortions, exploitation, or other improper practices on the part of any person, public or private ; and shall investigate such cases for the purpose of presenting the facts to the proper authorities and of inducing action thereon by the various agencies of the state possessing the requisite jurisdiction." 1 Under this act, the state industrial commission is made an agency for providing the services of a lawyer to wage-earners unable to pay for them. It lacks, how- ever, a provision making the findings conclusive in court proceedings. (2) Industrial Courts In Europe, a different type of legal aid has been evolved, taking the place, not of the lawyer, but of the judge. This is 1 New York, Laws 1915, C. 674, Sec. 520. INDIVIDUAL BARGAINING 87 the industrial court, or conseil de prucTkommes. Industrial courts are special courts for the settlement of disputes arising out of labor contracts between employers and employees, and their purpose is "to settle by conciliation whenever possible and by legal judgment when conciliation fails, but in any event cheaply, quickly, and by means of a court composed in part or in whole of elected representatives of the two classes, all individual legal cases which arise from the re- lations of employer and employed." l The first industrial court was founded at Lyons, France, in 1806, for the silk industry. The law creating the Lyons court provided that similar courts might be established in all the factory cities of France, and accordingly their number has increased steadily. When the left bank of the Rhine in 1815, and Alsace-Lorraine in 1871, became German territory, the industrial courts were retained, and in 1890 a general law provided for their estab- lishment throughout the empire. Industrial courts similar to the French were introduced into Belgium in 1859, while Austria followed in 1869, Italy in 1893, and Spain in 1908. In Switzerland, Geneva was the first canton to take up the idea, creating an industrial court on the French model in 1882. In 1910, only seven of the Swiss cantons lacked legis- lation of this character. There are. in general, three types of industrial courts: (i) The French, in which only employers and workers are rep- resented, and the number of members is even; (2) the Ger- man, in which the president is neither an employer nor a worker, and the number of members is odd; (3) the Swiss, which is an adaptation of the ordinary court, with the addition of special "assessors," or advisers, to the judge. 2 In all three types the employers and workmen are equally represented. With respect to jurisdiction, a labor contract of some kind is essential, but the idea is interpreted to cover any relation- ship between wage-givers and wage-receivers. The great ma- 1 United States Bureau of Labor, Bulletin No. 98, January, 1912; "Industrial Courts in France, Germany, and Switzerland," Helen L. Sumner, p. 273. 2 Two cantons have courts based on the French model (Geneva and Vaud), and four have the German type (Lucerne, Berne, St. Gall, Neu- chatel). 83 PRINCIPLES OF LABOR LEGISLATION jority of cases are for wages due, 1 but discharge without notice is also a frequent cause of complaint. By far the greater number of complaints are made by workers. In 1908, in Germany as a whole, 5,672 cases were brought by employers and 106,269 by workers. Most of the complaints are for small sums. Conciliation being the chief object of industrial courts, the procedure is a radical departure from that of the ordi- nary court. Personal appearance of the parties is required, except for a good excuse, as illness or absence from the city. In Germany, parties may be represented only by persons in the industry, but in France lawyers are allowed to be present, either to represent or assist the parties. 2 Lawyers are per- mitted in Spain also, but not in Basel, Zurich, or Geneva. The proceedings are much less formal than in an ordinary court, and the president takes an active part. Preliminary hearing for the purpose of conciliation before a section of the court is provided for in France and Germany. More than half the cases are settled by conciliation, and, as a large num- ber are not contested, or are settled by default, only a small percentage call for formal judgment. 3 The salient advantages of the industrial courts are rapidity and cheapness. Cases are set for as early hearing as possible, after complaint, and only necessary delays are permitted. In France, cases must be settled in four months, and in Ger- many in 1908 only 1.5 per cent, of cases brought to final judg- ment lasted over three months. Expenses exceeding the fees collected are met by the municipalities over which the court has jurisdiction, or, in the case of courts with wider jurisdic- tion, by the state. In such cases there are no fees; in others the fees are low. Members of the courts are compensated by fees or salaries, the method varying within the country. In Germany the president receives a salary, and the representa- tives of employers and employees receive fees for time in court. 1 In Berlin in 1908 more than one-half the complaints were for wages and a third about illegal discharge. 2 In practice lawyers appear before the board of judgment in Paris in only 10 per cent, of cases, and before the board of conciliation in only 5 per cent. 3 In 1908 only 17 per cent, of cases in Paris and 9 per cent, in Berlin required formal judgment. INDIVIDUAL BARGAINING 89 Wherever established, industrial courts are held indispen- sable, the fact that no dispute is too insignificant for them being regarded as a special advantage. They are, however, much more successful with small-scale production than with the factory system, the reasons being that in the latter case standardization of conditions obviates many disputes, and also that employees fear blacklisting if they bring suit. No such institution exists in English-speaking countries. In Great Britain the arbitration act of 1824 was designed to cover individual disputes, but the procedure was too intri- cate and costly ever to be applied. The " councils of con- ciliation" act of 1867 permitted industrial courts like the French, but no true judicial tribunal was ever created under it. 1 In the United States, a Pennsylvania law, enacted in 1883, attempted to establish a sort of industrial court, but none was ever created and ten years later the law was re- pealed. The constitutions of New York and a few other states contain provisions for courts of voluntary arbitration, but no courts were ever established. A few attempts have, however, been made, along quite different lines. One of these is the Conciliation Court of Cleveland, Ohio. It grew out of a provision in the municipal court act, designating a clerk to assist persons unable to hire a lawyer in preparing and filing papers, and, if possible, to bring about a settlement. An experienced man was selected by the chief justice, and he often acted successfully as a mediator. In 1912, 1,200 cases were thus settled ovit of court. All services were free. Since March, 1913, a concili- ation branch of the court has been in operation. The fee is usually 25 cents, never more than 45 cents, and all writs are served by registered mail. Lawyers are not allowed to repre- sent the parties, and no set procedure is required. Each party is allowed to state his case in his own way. When both sides have been heard, the judge must seek to effect an amicable adjustment of the differences between the parties. 2 Ordinarily, he obtains their consent that he shall adjust the 1 See also "Mediation by Government," p. 125. The above descrip- tion applies to industrial courts in their relation to the individual bargain. In some cases they also deal with the collective bargain. 2 R. C. Moley, "Justice through Common Sense," The Survey, Oct. 31, 1914, p. loi. 9 o PRINCIPLES OF LABOR LEGISLATION issue himself. The Cleveland court differs from the European industrial courts in that neither employers nor workmen are represented on the bench, the judge is not elected by the two classes, and the court does not confine itself to disputes arising out of the labor contract. It resembles them in that it is an authoritative tribunal, instead of being merely a private society, like the legal aid agencies of the United States. To what extent it would be possible to apply the European industrial court system in the United States is as yet an open question. People have not awakened to the need, and they are not prepared for such a system by habits of organization and joint action of interests. It is improbable that industrial courts would be created generally by local initiative, as in France, and even if the system were made mandatory by the state government, as in Germany, it would require a state agency to guide local governments in starting them. It is possible that the California wage payment law and the New York industrial commission law, above referred to, may lead to state and local advisory boards of employers and employees to assist the state authorities in executing the laws, and that, eventually, through the enlightenment of public opinion and through practice in cooperation between employers and employees, 1 the industrial court may be successfully modified and adapted to American conditions. See Chapter IX, "Administration." CHAPTER III COLLECTIVE BARGAINING Collective bargaining dates back as far as individual bar- gaining. Its first examples are town charters and merchant gilds. The townspeople through a collective contract secured certain rights from the king in return for a money payment. Among these rights none was more valuable than that of the doctrine "City air makes free." If a serf had been in a free city for a year, he became a free man. Freedom was estab- lished through collective bargaining. Without freedom there can be no individual contracts. Historically, individual and collective bargaining have been interdependent; the one has been necessary to maintain the other. i. THE LAW OF CONSPIRACY Yet collective bargaining for a long time was viewed with suspicion. All associations were treated as conspiracies. They were much more powerful than individuals, and hence were considered dangerous, Moreover, collective bargaining im- plies a restriction of the freedom to make individual bargains. To bargain collectively there must be a contract or an agree- ment between the members of the association that each shall give up his right to make an individual contract, and shall either make his contracts only as the majority decides or shall permit the agents elected by the majority to make his con- tracts for him. In order to enforce such bargains the asso- ciation must have full disciplinary powers and must be al- lowed to determine who shall be admitted to membership. Noivmembers do not share in the benefits of the collective bargain; in fact, they are often injured thereby. Collective bargaining seriously restricts the freedom of both members and non-members to make individual bargains. 92 PRINCIPLES OF LABOR LEGISLATION (j) Origins of Collective Bargaining Collective action was permitted in early law only under grant of a special charter from the king. Thus, the king granted charters to free citizens, and to merchant and craft gilds. Armed with a charter, the association might not be prosecuted as a conspiracy, and was conceded the great privi- leges of acting as a unit and continuous existence through the right of succession. Of these early associations the craft gilds were the nearest approach to the trade unions of to-day; yet their functions were very different. They were composed of three classes: the masters, the journeymen, and the apprentices. The masters and the journeymen worked side by side, with the same tools. It was easy for an apprentice to become first a journeyman, then a master. Hence the relations of the mas- ters to the journeymen and apprentices received but little attention in the charters which created gilds. The wage bargain which the master made with the journeyman and the apprentice was as yet not a matter of public concern. The public was interested primarily in the other bargaining func- tion of the masters; their merchant function, the making of the price bargain with consumers. The consumers dominated the government; and it was their concern to prevent extor- tionate prices and the substitution of "bad ware." 1 With the gradual expansion of markets, the merchants gained recognition in society. Charters were granted to the merchant adventurers who risked their capital in foreign enterprises, and patents of monopoly were granted to mer- chants in the domestic trade. Later came the special charters to banks, canal, turnpike, and railway companies and other corporations. Thus, the right of association was granted to capital. With freedom from the taint of conspiracy, the cor- poration charter conferred upon the incorporators the privilege of "limited liability." In a partnership the members are re- sponsible to the full extent of their resources for the contracts and torts of the partnership. But the members of corpora- tions have only "limited liability," usually only to the extent 1 See Commons, Labor and Administration, 1913, "American Shoe- makers," p. 219 ff. COLLECTIVE BARGAINING 93 of their subscription. At first, incorporation could be secured only through special act of the legislature ; and corruption was often employed to secure such charters. Finally, in the dec- ade of the 'fifties, general corporation laws were enacted. It is now the privilege of all persons to combine their capital and form corporations, with but few restrictions. So com- plete is the right of association of capitalists that the law has introduced the fiction that corporations are persons, entitled to many of the advantages of natural persons; and the rule of "limited liability" lessens the responsibility of the mem- bers for the acts of the corporation. The modern corporation has taken over both of the bar- gaining functions of the masters of old : the price bargain and the wage bargain. In the first the corporation performs the merchant function, and its object is to get as high prices as possible from the consumer. In the second it performs the employer function, and its object is to give as low wages as possible to the laborers. Collective action by capital has not stopped with the cor- poration. The corporations have themselves become mem- bers of associations. In these associations it has generally been found advantageous to separate the two bargaining func- tions. Manufacturers' associations, "pools," and "trusts" are formed to deal with the price of products to consumers. Employers' associations deal with the wages paid to labor. Practically the same individuals may compose these associa- tions; but their functions are totally different. 1 Labor did not win the right of collective bargaining as early as capital. When, in the eighteenth century, in England, the laborers combined to enforce their demands for higher wages they were prosecuted for "conspiracy." In the jour- neyman tailors' case, 2 for example, all combinations to raise wages were held to be conspiracies. This common law doc- trine was inherited by our fathers from England. In the mother country the journeyman tailors' case was followed by the enactment of statutes to penalize combinations to raise wages. In 1824 and 1825 these statutes were repealed, and a considerable degree of freedom to combine was conceded 1 Commons. Labor and Administration, especially p. 262, 2 8 Mod, ii (1721), 94 PRINCIPLES OF LABOR LEGISLATION to labor. In 1871 trade unions were declared not to be il- legal combinations in restraint of trade. In 1875 labor was entirely freed from the conspiracy law in its criminal aspects. Finally, in 1906 the law of civil conspiracy also was swept away, and the trade unions were conceded complete exemp- tion from responsibility for damages growing out of tortious acts alleged to have been committed in their behalf. In the United States, also, prosecutions for "conspiracy" often followed the early strikes for higher wages. In the indictment or in the charge to the jury in some of these cases there was presented the doctrine of the common law that all combinations to raise wages are illegal. 1 But this was never unchallenged law in the United States; and in only one case did a court of final jurisdiction hold this view. 2 Yet it was considered that there was something unlawful about com- binations of laborers. They were denounced as being in- jurious to the public, because they were injurious to employers and made it difficult for them to compete in distant markets. Naturally the journeymen looked upon all of these cases as prosecutions brought by the masters to resist increases of wages. This was undoubtedly the real motive of the prosecu- tion; but in most of these cases the restrictive rules and prac- tices of the unions were emphasized, not the effort to raise wages. In the earliest cases the juries always convicted; but there was a growing public sentiment against these prosecutions. After the decade of the 'thirties it was generally recognized that a combination to raise wages is not of itself a conspiracy. In 1842, in Commonwealth v. Hunt, 3 the Massachusetts Supreme Court even held that it was lawful for laborers to go on strike to gain a closed shop. This decision was very much more favorable to the workingmen than are those of the Massachusetts courts of recent years. After Common- wealth v. Hunt there were still prosecutions of workingmen for "conspiracy," but in the cases of the 'fifties and 'sixties acts of violence were usually involved. There was still com- 1 For these early cases see Documentary History of American In" Society, Vols. Ill and IV. 2 People v. Fisher, 14 Wendell 9 (1835). 3 Commonwealth v. Hunt, 4 Metcalf in (1842). COLLECTIVE BARGAINING 95 plaint about the "conspiracy laws," but they had lost their meaning. Thus, in a certain sense, the rights which the workingmen gained in England through legislation in the 'seventies were acquired by them in the United States without legislation at a much earlier date. But there was the vital difference that, while in England the entire conspiracy law in its application to labor was swept away, it was only modified in this country by common consent and favorable construction. In England definite statutes replaced the vague conspiracy law; in the United States the conspiracy law remained, without ever being really clarified. The few statutes which were enacted in reference to labor combinations did little more than to re- state the common law. In the 'eighties a new spirit was manifested in the court decisions in this country involving labor combinations. These decisions made clear that labor's right to combine was still seriously restricted. Part of the explanation of the changed attitude of the courts is the aggressiveness of labor at that time. The violence and riots which accompanied the strikes of that period made the unions seem dangerous combinations. Another factor was the gradual identification of "business" with "property." "Good will" and "trade names" have been recognized as property only within the last century. Not until the last few decades have the courts gone further and recognized as property the right of a free access to the commodity market and to the labor market. Not merely are contracts already made treated as property, but also the right to be unhindered by others in making contracts. It is this right "to do business" which is of greatest im- portance in labor disputes. Strikers may attack the physical property of employers; but the police, the military, and the criminal laws are usually adequate to deal with this menace. But without any destruction of physical property the em- ployer's business may be ruined. Picketing may prevent his getting new employees, and boycotting may keep him from selling his products. While the modern manufacturer can often survive the destruction of his physical property, ob- struction of access to the labor market or to the commodity market brings with it certain ruin. 9 6 PRINCIPLES OF LABOR LEGISLATION The recognition of "business" as "property" ushered in the era of injunctions in labor disputes. The first injunction was issued in 1884, but not until the Debs case 1 ten years later did the public generally know anything about the use of injunctions in labor disputes. Since that time this has been the legal remedy most usually sought by employers when menaced by strikes or boycotts. Injunptions protect^physical property, but are probably less effective in this respect than prosecutions under the criminal laws. They are vastly supe- rior, however, in protecting the expectancies of an established business and are principally sought for this purpose. In fact, nobody thought of injunctions in connection with labor dis- putes until these expectancies were recognized as property. In 1908 organized labor was suddenly aroused to a new menace, which appeared more serious even than the injunc- tion and the conspiracy doctrine. This was the damage suit under the Sherman anti-trust act, as developed in the decision of the United States Supreme Court in the Danbury hatters' case. 2 Almost immediately after the passage of the Sherman act in 1890 it was held to be applicable to labor unions, but not until more than $250,000 damages were assessed against the hatters did labor show any great concern about this situa- tion. It was then feared that the Sherman act rendered all strikes, if not all labor organizations, unlawful. This was probably beyond the thought of the Supreme Court; but the decisions of some of the district courts after 1908 made it a reasonable fear. Organized labor bent every effort toward securing relief from this menace, and in 1914 scored a signal victory in the inclusion of a provision in the Clayton act to the effect that the anti-trust laws shall not be construed to forbid the existence of labor organizations, nor to restrain their members from carrying out the "legitimate objects" thereof. This provision probably has not placed labor out- side the scope of the anti-trust law, 3 but has eliminated the danger of an extension of the restraint-of -trade doctrine to a possible outlawing of all labor organizations. 1 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900 (1895). 2 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908). 3 See Kroger Grocery & Baking Co. v. Retail Clerks, 250 Fed. 890 (1918); United States v. Norris, 255 Fed. 423 (1918). COLLECTIVE BARGAINING 97 (2) Doctrine of Conspiracy Most of the cases of which labor complains have been pre- mised, not upon the federal anti-trust laws, but upon the com- mon law doctrine of conspiracy. This doctrine makes illegal acts done in pursuance of an agreement which are legal when done by one person. One manner of explaining this result is that when men combine their motives become of importance. Their combination is legal when their motive is primarily to benefit themselves, and illegal when they aim primarily at the injury of another. One person may sever all business rela- tions with another, if not under contract to continue them, regardless of the motives which may lead him to take this step. But when workingmen combine to go on strike or to boycott an employer, the courts will inquire whether their primary motive is injury to the employer or benefit to themselves. To tmderstand the full import of the conspiracy doctrine it is necessary to note two of its corollaries. One is the proposition that where the purpose of the combination is illegal every act done in pursuance thereof is rendered illegal, though the act may be innocent of itself. Acts normally pro- tected by the constitutional guarantees of free speech, free press, and public assembly, become unlawful when done in furtherance of an unlawful purpose. As put by the Supreme Court of the United States: l "No conduct has such absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be a step in a criminal plot, and if it is a step in a plot neither its innocence nor the constitution is sufficient to prevent the punishment of the plot by law." Again, if an illegal plot has been formed, all of the conspirators are responsible for the acts of any of the conspirators done in pursuance of the common object. Once it is established or taken for granted that the workingmen have conspired, any and all of them are liable for acts of violence which may be committed by some of them. The soundness of the doctrine that the legality of a com- bination depends upon the motives which actuate it has been often questioned in recent years. It is most difficult to de- 1 Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct. 3 (1904). 98 PRINCIPLES OF LABOR LEGISLATION termine what is the primary motive of the workingmen in undertaking a strike or a boycott. They aim both to injure the employer and to benefit themselves. The bias of the judge necessarily plays a large role in the determination of which of these is the controlling motive. The doctrine that it is the immediate object and not the ultimate purpose which is controlling, helps but little. In most labor disputes many questions are at issue. A demand for the closed shop may be coupled with the demand for an increase in wages. The latter is recognized by all courts to be legal, while the former is held illegal by many courts. The result has been confusion and arbitrariness in the law. Where one judge sees only a lawful combination, another discovers an unlawful conspiracy. The fundamental premise in the conspiracy doctrine is that the many have a power for harm which no one person can exercise. Hence, while in the class of acts which are involved in labor disputes the motive is considered unimpor- tant when they are done by one person, it becomes a deter- mining factor when they are done in pursuance of an agree- ment among several. But in American law the corporation has been made a person. This makes the premise of the con- spiracy doctrine an absurdity. The power of the large cor- poration, though a single person in the law, is greafer than that of the combination of workingmen. Considerations such as these have led some courts to abandon the old form of statement of the conspiracy doctrine. They start with the proposition that the employer has a right of free access to the labor market and to the commodity market. Intentional interference with this right to do busi- ness is prima facie wrongful. Only when the injury done to the employer is the result of the exercise of equal or superior rights by the workingmen is it justified. These courts dis- tinguish between malice in fact and malice in law. Whether personal ill-will and spite, malice in fact, actuates the work- ingmen, they hold to be of no importance. Malice in law determines the legality of their actions; and malice in law is merely the intentional infliction of injury without justification. 1 1 Doremus v. Hennessy, 176 111. 608 at p. 615, 52 N. E. 924, 54 N. E. 524 (1898); Berry v. Donavan, 188 Mass. 353, 74 N. E. 603 (1905); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 88 1 (1894). COLLECTIVE BARGAINING 99 In actual application, however, malice in fact is an impor- tant factor in determining whether there is malice in law. If intentional infliction of injury without justification is un- lawful, everything turns upon what is considered a sufficient justification. This involves an evaluation of the respective rights of capital and labor. The employer has a right to con- duct his business without interference. The non-unionist has a right to earn his living. The union workman has a right to work or not to work, as he chooses. Which of these rights is to prevail when the union workmen go upon strike to compel the employer to discharge the non-unionist ? Com- petition is recognized to be a justification for interference with the rights of others. But when can the workingmen be said to compete with their employers? It is competition when the workingmen aim primarily to benefit themselves, when there is no malice in fact. Thus, the doctrine that intentional injury done without justification is unlawful makes the motive the criterion of the legality of the acts of labor combinations. Though it differs in statement from the older conspiracy doc- trine, its substance is the same. As Dean Lewis has put it: "Those who say with Justice Wells that a man is liable for the harm he does if he does it maliciously, meaning by malice without legal excuse, naturally turn to the defendant's motive as at least one of the elements on which the existence of a 'legal excuse' depends." 1 Labor has profited little from the coming in of the "legal excuse" doctrine. It has re- phrased the conspiracy doctrine, but has kept its spirit. In .labor cases there is always much discussion of the rights of the respective parties. Thus, it is said that employers have a right to conduct their business as they see fit. On the other hand, the right of the workingmen to quit employ- ment is often described as absolute. These abstract state- ments read well; but the trouble is that in labor disputes these rights come into conflict. This clash of rights has led the courts to inquire into the motives which actuate the working- men. To justify holding against labor unions recourse has been had to the theory that the element of combination radi- 1 Columbia Law Review, February, 1905, p. 118. See also Trowbridge, " Legal Limitations upon Interference with the Contract Rights of a Com- petitor," in Yale Review, May, 1910, pp. 55-78. ioo PRINCIPLES OF LABOR LEGISLATION cally changes the situation. Where the court holds to the conspiracy doctrine, no matter how it may be expressed, the decision is apt to be against the union. There are a large number of cases, however, in which the courts have held that the fact that acts are done in pursuance of a combination does not affect their legality. 1 Other cases hold that a bad motive cannot render illegal acts which are otherwise lawful. 2 Thus, they sweep away the foundations of the doctrine of conspiracy. The courts of California have gone furthest in this regard. In California quitting work and refusing to patronize are held to be absolute rights of the workingmen, and the fact that these rights are exercised in pursuance of a combination is treated as immaterial. 3 The only limitation upon collective action is that labor shall not resort to coercion or intimidation. The practical conclusion reached in California is that all strikes and all boycotts are lawful. Even if the motive of the workingmen is held to be im- material, there is wide room for diversity of opinion as to the means which labor may employ to gain its ends. There is agreement that coercion and intimidation are unlawful. But what conduct is coercive and intimidating? In Cali- fornia, pressure brought to bear upon third parties through sympathetic strikes and secondary boycotts is treated as not coercive. On the other hand, picketing is held to be necessarily intimidating. 4 In other jurisdictions pressure upon third parties, other than that resulting from persuasion, is treated as coercion, while picketing is often considered legal. There is a pronounced tendency in recent cases throughout the country to say little about the illegal motives of the work- ingmen and to find the illegality of their conduct in the un- lawful means they employ. This may seem to be a great advance for organized labor ; but the gain is deceptive. Prac- tically it makes no difference whether a sympathetic strike 1 Cooke, The Law of Combinations, Monopolies, and Labor Unions, 1908, p. 33, and the cases there cited. 2 Ibid., p. 17, and cases cited. 3 Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac. 1027 (1908); Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). 4 Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex parle Williams, 158 Cal. 550, in Pac. 1035 (1910). COLLECTIVE BARGAINING 101 is condemned because the motive of the workingmen is held to be to injure the employer, or because it amounts to an effort to coerce a third party. " Coercion" and " intimida- tion" are so vaguely defined, that almost any conduct can be considered coercive or intimidating. Thus, there are three theories which underlie most of the cases involving collective action by labor. The most funda- mental of these is the 'theory that when men combine the / legality of their acts depends upon their motives. Another holds that intentional interference with the rights of others NL is wrongful, unless it results from the exercise of equal or superior rights. The third theory places emphasis, upon the element of coercion and intimidation involved in the acts of combination. In their manner of statement these theories are wide apart; but their practical conclusions have been much the same. No matter which theory a court may enter- tain, there is great latitude in its application. Under each theory much depends upon whether the demands of the work- ingmen are justified or unjustified. Hence, the bias of the judge is likely to be determining. (3) Court Decisions a. Strikes. When we pass from the abstract theories of the courts to their practical conclusions, similar diversity of state- ment is encountered. In part this is due to real differences in the conclusions reached. In different states the rights of organized labor differ widely. Even in the same state it is often quite impossible to reconcile the several decisions. Dissenting opinions are very common. The confusion which exists, however, is due not only to real differences as to the law, but also to the use of common terms in divergent mean- ings. Neither the term "strike" nor the term "boycott" has a standard meaning in law. Some courts speak of the "strike" as involving only the collective quitting of work. Others include within that term not only the collective quit- ting, but also the agreement which precedes it. Even this conception is too narrow. To it must be added the idea that the quitting is but temporary, that the strikers do not consider that they have permanently quit, but that they expect to 102 PRINCIPLES OF LABOR LEGISLATION be employed again on different terms, through coercion of their employers. As to the term " boycott" it has been truly said that " scarcely any two courts treating of the subject formulate the same definition." l The essential idea in many of these definitions is that third parties are illegally coerced to sever their business relations with the employer against whom 'the union is waging its fight, Thus, it was said in one case that "the word in itself implies a threat." 2 Similarly Judge Taft defined a "boycott" as a "combination of many to cause a loss to one person by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, tfce many will cause similar loss to them." 3 Such definitions make no allowance for the so-called primary boycott, in which no effort to coerce third parties is involved. In recent years boycotts against restaurants have been more frequent than any other boycotts, but they would not fall within the defini- tion of Judge Taft. On the other hand, sympathetic strikes and strikes against the use of non-union material are by this definition treated as "boycotts." Trade unionists at times use the term in this broad sense, but more commonly only in reference to the collective refusal to buy the products of an "unfair" manufacturer or merchant. This is; the sense in which this term will be used in this chapter. Upon the question of the legality of trade unions per s_e_ there is general agreement among the courts. Statutes have been passed in a number of states which make it a felony to organize or belong to any organization which advocates crim- inal syndicalism. 4 The unions affiliated with the American Federation of Labor, however, have always been regarded as lawful organizations, except in two decisions, neither of which was rendered by a court of final jurisdiction. 6 The theory, 1 Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 96 Pac. 127 (1908). 2 Brace v. Evans, 5 Pa. Co. Ct. 163, at p. 171 (1888). 3 Toledo, A. A. & N. M, R. Co. v. Pennsylvania Co., 54 Fed. 730 (1893). 4 See, for instance, California, Laws 1919, C. 188. 5 Kealy v. Faulkner, 18 (Ohio) Superior and Common Pleas Decisions 498 (1908); Hitchman Coal and Coke Co. v. Mitchell, 202 Fed. 512 (1912). COLLECTIVE BARGAINING 103 entertained in England before 1871, that trade unions have no standing in court because they are illegal combinations in re- straint of trade, never gained a foothold in the United States. But while the legality of trade unions is not questioned, there have been serious restrictions upon their efforts to make themselves effective. The strike, the most essential of labor's weapons, has often been condemned as illegal. Much con- fusion exists as to the legality of strikes, due principally to the different meanings in which this term is used. Many courts hold that " striking," in the sense of collectively quitting work, is always legal. What is really meant is that quitting work cannot be directly prevented. The thirteenth amendment has forbidden slavery and involuntary servitude. The specific enforcement of labor contracts is slavery. Even when under a definite time contract, workmen may not be compelled to labor when they wish to quit. But an action would still lie against them in damages for the breach of their contract. In practice but few workmen labor under contracts running for a definite time. Hence, to all practical intents and pur- poses, quitting work is always lawful. This is what most courts mean when they declare that it is lawful to strike for any or no reason. But in most strikes something more than quitting work is involved. There is an antecedent agreement to quit, there are demands upon the employer, and there is a "threat" that unless he yields a strike will be called. The element of com- bination enters into the strike. Even after the workmen have quit they still act in concert. It is the entire combination, of which the quitting work is but a part, which constitutes the strike. The strike in this sense is not always legal. The rule most generally applied is that when the purpose of the strikers is primarily to injure the employer or non-union workmen the strike is illegal. The Massachusetts Supreme Court has best stated this rule: * "To justify interference with the rights of others the strikers must in good faith strike for a purpose which the court decides to be a legal justification for such in- terference. ... A strike is not a strike for a legal purpose be- cause the strikers struck in good faith for a purpose which 1 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317 (1911). io 4 PRINCIPLES OF LABOR LEGISLATION they thought was a sufficient justification for a strike. As we have said already, to make a strike a legal strike the pur- pose of the strike must be one which the court as a matter of law decides is a legal purpose of a strike, and the strikers must have acted in good faith in striking for such a purpose." In other cases the fact that the strikers aim to "coerce" the employer and "threaten" him with loss unless he complies with their demands is emphasized. The result of the application of these doctrines has been that strikes have often been condemned as unlawful. The Massachusetts cases are the most extreme in this respect. Almost never have they found that strikers were pursuing lawful objects when they endeavored to procure the discharge of non-union workmen or of the members of rival unions. 1 They condemn also strikes to procure the removal of objec- tionable foremen, and all sympathetic strikes. 2 The Massa- chusetts cases even hold that though the strike is for higher wages, the members of the union may not be coerced to participate therein through threat of a fine or of expulsion from the union. 3 In Connecticut and in Vermont strikes against non-unionists have been condemned. 4 Closed shop strikes have been held unlawful also in New Jersey, as have strikes against the use of non-union material. 5 In Penn- sylvania there is a statute which reads to a layman as though 1 Plant i. Woods, 176 Mass. 492 (1900); Berry v. Donavan, 188 Mass. 353, 74 N. E. 603 (1905); Aberthaw Construction Co. v. Cameron, 19^ Mass. 208, 80 N. E. 478 (1907); Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457 (1908); Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 (1911); Snow Iron Works v. Chadwick, 227 Mass. 382, 116 N. E. 801 (1917). Slightly contrary, Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753 (1906); Cornellier v. Haverhill Shoe Mfrs. Ass'n, 221 Mass. 554, 109 N. E. 643 (1915). 2 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317; Hanson v. Innis, 211 Mass. 301, 97 N. E. 756 (1912); Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457 (1908). 3 Willcut & Sons Co. v. Driscoll, 200 Mass, no, 85 N. E. 897 (1908); Casson v. Mclntosh, 199 Mass. 443, 85 N. E. 529 (1908). 4 Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129 (1906); Conners v. Con- nolly, 86 Conn. 641, 86 Atl. 600 (1913); State v. Dyer, 67 Vt. 690, 32 Atl. 814 (1894). But see also Cohn & Roth Electrical Co. v. Bricklayers, 92 Conn. 161, 101 Atl. 659 (1917). 5 Booth v. Burgess, 72 N. J. Equity 181, 65 Atl. 226 (1906); Brennan v. United Hatters, 73 N. J. 729, 65 Atl. 165 (1906); Blanchard v. District Council, 78 N. J. 737, 71 Atl. 1131 (1909); Ruddy v. Plumbers, 79 N. J. 467, 75 Atl. 742 (:OIOK COLLECTIVE BARGAINING 105 it legalized all strikes. Yet the courts of that state have held unlawful strikes growing out of jurisdictional disputes, closed shop strikes, and strikes against non-union material. 1 In Illinois the question of the legality of a strike for the closed shop has been several times before the supreme court. In 1905 such a strike was held to be unlawful; in 1912 the court split evenly upon this question. 2 New York has a statute legalizing "peaceable assembling or cooperation" by work- ingmen "for the purpose of securing an advance in the rate of wages." Elsewhere such strikes are held lawful, even without any such statute. Strikes for many purposes have been condemned by the New York courts. The court of appeals has held unlawful strikes to collect fines from em- ployers. 3 Inferior courts have condemned strikes against non- union material. 4 Some New York cases also hold sympathetic strikes to be unlawful. 5 The question of the legality of strikes for the closed shop has often come up in New York. The de- cisions of the court of appeals upon this issue are very difficult to reconcile. In the Curran v. Galen case in 1897 6 a non - union workman who lost his job because his employer entered into a closed shop agreement was held to have an action against the union. In the Cumming case in 1902 7 the ma- jority of the court squarely sustained a strike to establish a closed shop. In the Jacobs v. Cohen case in 1905^ however, an effort was made to reconcile the two prior decisions and to 1 Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327 (1903); House Painters v. Feeney, 13 Pa. Dist. 335 (1904); Bausbach v. Rieff, 237 Pa. 482, 85 Atl. 762 (1912); Patterson v. Trades' Council, II Pa. Dist. 500 (1902); Purvis v. Carpenters, 214 Pa. 348, 63 Atl. 585 (1906). 2 O'Brien v. People, 216 111. 354, 75 N. E. 108 (1905); Kemp v. Division No. 241, Amal. Association of Street and Electric Ry. Employees, 255 111. 213, 99 N. E. 389 (1912). 3 People v. Barondess, 133 N. Y. 649, 31 N. E. 240 (1892). See also People v. Weinsheimcr, 117 App. Div. 603, 102 N. Y. Supp. 579 (1907). 4 People v. McFarlin, 43 Misc. 591, 89 N. Y. Supp. 527 (1904); Albro J. Newton Co. v. Frickson, 70 Misc. 291, 126 N. Y. Supp. 949 (1911). 5 Beattie v. Callanan, 67 App. Div. 14, 73 N. Y. Supp. 518; 82 App. Div. 7, 81 N. Y. Supp. 413 (1901-03); Schlang v. Ladies' Waist Makers, 67 Misc. 221, 124 N. Y. Supp. 289 (1910). Contrary Searle Mfg. Co. v. Terry, 56 Misc. 265, 106 N. Y. Supp. 438 (1905). 6 Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 0897). 7 National Protective Association of Steamfitters and Helpers v. Cumming, 170 N. Y. 315, 63 N. E. 369 (1902). 8 Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5 (1905). 106 PRINCIPLES OF LABOR LEGISLATION consider them both as law. The doctrine evolved seems to be that the closed shop is lawful as long as it does not give the union a monopoly in the community in which it operates. Enough cases have been cited to illustrate the attitude of the courts toward strikes. Except wiiere compulsory arbi- tration has been introduced, as in Kansas in 1920,* strikes solely and directly involving the rate of pay or the hours of labor are in ordinary times everywhere considered legal. But strikes to gain a closed shop, sympathetic strikes, and strikes against non-union material have been condemned in many jurisdictions. Only in California is it settled law that all strikes are legal. But because strikes are illegal it does no\ follow, that there is any effective way of preventing them. Arthur v. Oakes 2 authoritatively established that laborers may in no circum- stances be enjoined from quitting work. In some injunc- tions, however, "conspiring to quit" has been enjoined. In others the union officers have been prohibited from advising or ordering the workmen to go upon strike, or from paying strike benefits. A notable injunction of this type w T as secured by the federal government during the bituminous coal mine dispute of 1919. Taking advantage of the war-time food and fuel control act, which prohibited conspiracies to curtail pro- duction in either of these lines, the Department of Justice asked for an order restraining the officials of the miners' organization from calling a strike and from distributing strike funds. The miners showed that while the act was under discussion in Congress it was authoritatively stated on the floor of the Senate "that the administration does not construe this bill as prohibiting strikes and peaceful picketing and will not so construe the bill, and that the Department of Justice does not so construe the bill and will not so construe the bill." 3 They contended also that the war was over, and that the government had recognized this fact in relation to the coal industry by winding up the affairs of the Fuel Administration, by abandoning the distribution of coal through the War Industries Board, and by ceasing to collect coal production 1 See "Coercion by Government," p. 149. 2 Arthur v. Oakes, u C. C. A. 209, 63 Fed. 310 (1894). 3 Congressional Record, 65th Congress, ist Session, p. 5904. COLLECTIVE BARGAINING 107 costs through the Federal Trade Commission. Nevertheless the injunction was made permanent, and the strike was de- clared off under protest by the mine workers' officials. In some recent cases such injunctions have been condemned as an indirect method of compelling the workmen to labor. 1 Usually injunctions are not taken out until after the workmen have quit. Almost never have the courts acted upon the theory that, inasmuch as the strike is unlawful, all efforts of the workingmen to make it effective must be prevented. Whether the strike is considered lawful or unlawful by the courts makes little difference either in the phraseology of the injunction or in its enforcement. In reference to damage suits the situation is different. Most of the cases in which closed shop strikes have been condemned grew out of actions for damages brought by non-union workmen who had lost their jobs because of such strikes. The suits were premised upon the illegality of the strikes, not upon the unlawful con- duct which may have accompanied them. b. Boycotts. The boycott was condemned as unlawful as early as i886. 2 Many decisions have since confirmed this view. As the Supreme Court of the United States has said, the courts are nearly unanimous in condemning boycotting as wrongful. 3 In a few states it is specifically prohibited by statute. 4 The reasoning relied upon in condemning the boy- cott has generally been that it amounts to an effort to "coerce" third parties. Hence it falls within the category of conspira- cies. In some cases an effort is made to distinguish the pri- mary boycott from the secondary boycott, the latter being the boycott of a third party, usually a merchant who sells the product of the employer primarily boycotted. Many courts in fact use the term "boycott" as embracing only secondary boycotts. But this distinction in practice amounts to little. 1 Thomas v. Cincinnati, N. O. & T. P. R. Co., 62 Fed. 803, 817 (1894); Wabash R. Co. v. Hannahan, 121 Fed. 563 (1903); Barnes v. Berry, 157 Fed. 883 (1908); Delaware, L. & W. R. Co. v. Switchmen, 158 Fed. 541 (1908); Kemp v. Div. No. 241 Amalgamated Association of Street and Electric Railway Employees, 255 111. 213, 99 N. E. 389 (1912). 2 People v. Wilzig, 4 N. Y. Crim. 403 (1886) ; People v. Kostka, 4 N. Y. Crim. 429 (1886). 3 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908). 4 See Harry W. Laidler, Boycotts and the Labor Struggle, 1913, pp. 174- io8 PRINCIPLES OF LABOR LEGISLATION Few employers of labor sell directly to the consumers. Hence, there can be but few primary boycotts. To boycott a manu- facturer pressure must usually be brought to bear upon the dealers who handle his products. This introduces the third party and the element of the secondary boycott. It is sig- nificant that all of the statements holding primary boycotts legal are "obiter dicta," or incidental remarks delivered in the course of a decision on some other point, and occur in cases in which the courts found an illegal secondary boycott. In California boycotting has been held to be lawful. 1 Though its supreme court has not spoken, this seems to be the view also in Oklahoma. 2 Some New York cases also have sustained the boycott. 3 Both in Missouri and in Montana it has been held that the constitutional guarantees of free speech arid free press give laboring men the right to refer to em- ployers as unfair. 4 Later decisions in both states, however, have made clear that this does not mean that boycotting is legal, but only that the printing and the distribution of boy- cott circulars may not be directly enjoined. 5 Though boycotting has for a long time been held illegal in most jurisdictions, it is only in recent years that organized labor has taken alarm at these decisions. Until 1908 boy- cotts were conducted openly and fearlessly. Sometimes in- junctions were taken out against boycotts, but they only increased their effectiveness, through giving them wider pub- licity. The Danbury hatters' case in 1908 6 first brought home to labor that damages might be collected for losses 1 Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac. 1027 (1908); Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). 2 Laidler, Boycotts and the Labor Struggle, p. 414. s Sinsheimer v. Garment Workers, 59 N. Y. St. 503, 28 N. Y. Supp. 321 (1894); People v. Radt, 15 N. Y. Cr. 174, 71 N. Y. Supp. 846 (1900); Cohen v. Garment Workers, 35 Misc. 748, 72 N. Y. Supp. 341 (1901); Foster v. Retail Clerks, 39 Misc. 48, 78 N. Y. Supp. 860 (1902) ; Butterick Pub. Co. v. Typographical Union, 50 Misc. i, 100 N. Y. Supp. 292 (1906). To contrary, 'Matthews v. Shankland, 25 Misc. 604, 56 N. Y. Supp. 123 (1898); Sun Ptg. & Pub. Ass'n v. Delaney, 62 N. Y. Supp. 750 (1900); Mills v. U. S. Print. Co., 99 App. Div. 605, 91 N. Y. Supp. 185 (1904). 4 Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391 (1902); Lindsay & Co. v. Montana Fed. of Labor, 37 Mont. 264, 96 Pac. 127 (1908). 5 Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997 (1908); Iverson . Dilno, 44 Mont. 270, 119 Pac. 719 (1911). 6 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908). COLLECTIVE BARGAINING 109 sustained through boycotts. The American Federation of Labor at once discontinued its ' ' We Don't Patronize ' ' list. In general, fewer boycotts were thereafter undertaken and they were con- ducted much less openly. There are still numerous local boycotts and some conducted upon a nation-wide scale ; but there can be no doubt that the attitude of the courts toward the boycott seriously restricts labor's use of this collective weapon. c. Picketing. Strikes cannot be effective when the employer is able to secure a sufficient number of new employees. Hence the strikers endeavor to prevent the employer from getting them. They may do this either through persuasion or through in- timidation. All are agreed that intimidation is unlawful. Persuasion, on the other hand, is generally lawful. An exception must be made when the employees persuaded to leave work are under definite unexpired contracts. It is a. rule of the common law that an action lies against a third person who persuades another to break a contract without legal excuse. This rule has been quite often invoked in labor cases in this country. 1 In some cases the rule has been applied even to persuasion to induce employees to quit work whose contract was from day to day. 2 The courts in these cases have taken the position that these employees would have continued at work but for the intermeddling of the third parties. A further extension of this doctrine was made by the United States Supreme Court in the case of Hitchman Coal & Coke Co. v. Mitchell 3 in 1917. It held that where an employer has compelled all of his employees to sign a contract that they will not join any labor union, it is illegal to make any effort to organize them. In most cases, however, it has been held that strikers may 1 Haskins v. Royster, 70 N. C. 601 (1874); Bixby v. Dunlap, 56 N. H. 456 (1876); Beekman v. Marsters, 195 Mass. 205, 80 N. E. 817 (1907); Flaccus v. Smith, 199 Pa. 128, 48 Atl. 894 (1901); Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S. E. 353 (1905); Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512 (1912). 2 Walker v. Cronin, 107 Mass. 555 (1871); O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843 (1897); Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152 (1901); George Jonas Glass Co. v. Glass Bottle Blowers, 77 N. J. Eq. 219, 79 Atl. 262 (1911); Southern R. Co. v. Machinists, in Fed. 49 (1901); Davis Machine Co. v. Robinson, 41 Misc. 329, 84 N. Y. Supp. 837 (1903). 3 Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65 (1917). no PRINCIPLES OF LABOR LEGISLATION employ peaceful persuasion to induce the new employees to join them. They may employ persuasion, but must not resort to intimidation. But there is no distinct dividing line between persuasion and intimidation. In strikes, and often also in boycotts, the union stations pickets near the employer's premises to observe and speak to prospective employees or customers. Does the establishment of such a picket line of itself amount to intimidation? One view was forcibly ex- pressed by United States Judge McPherson : 1 " There is and can be no such thing as peaceful picketing, any more than there can be chaste vulgarity, or peaceful mobbing, or lawful lynching. When men want to converse or persuade, they do not organize a picket line. . . . The argument seems to be that anything short of physical violence is lawful. . . . But the peaceful, law-abiding man can be and is intimidated by gesticu- lations, by menaces, by being called harsh names, and by being followed, or compelled to pass by men known to be unfriendly. . . . The frail man, or the man who shuns disturbances, or the timid man, must be protected, and the company has the right to employ such." This view, that picketing always amounts to intimidation, has been adopted also by the courts of California. 2 Though they recognize the strike and the boycott as legal, they will not permit picketing in furtherance of either. In a Massa- chusetts case the presence of two pickets at a factory entrance was held to be intimidating. 3 All picketing has been con- demned also by the courts of Illinois, Michigan, New Jersey, Oregon, Pennsylvania, Washington. 4 Alabama, Colorado, and 1 Atchison, T. & S. F. Ry. v. Gee, 139 Fed. 582 (1905). 2 Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex parte Williams, 158 Cal. 550, in Pac. 1035 (1910). 3 Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077 (1896). 4 Franklin v. People, 220 111. 355 (1906); Barnes v. Typographical Union, 232 111. 402, 424 (1908); Beck v. Railway Teamsters, 118 Mich. 497, 77 N. W. 13 (1898); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133, 112 N. W. 723 (1907); George Jonas Glass Co. v. Glass Bottle Blowers, 72 N. J. Eq. 653, 66 Atl. 953 (1907), 77 N. J. Eq. 219, 79 Atl. 262 (1911); Hall v. Johnson, 87 Ore. 21, 169 Pac. 515 (1917); O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843 (1897); St. Germain v. Bakery Workers, 97 Wash. 282, 166 Pac. 665 (1917). To the same effect are decisions by federal courts in Otis Steel Co. v. Molders, no Fed. 698 (1901); Knudsen v, Benn, 123 Fed. 636 (1903); Kolley v. Robinson, 109 C. C. A. 247, 187 Fed. 415 (1911). is COLLECTIVE BARGAINING in Washington had, by 1920, statutes making picketing a misde- meanor, and many cities had ordinances to the same effect. 1 There are even more cases which hold that peaceful picket- ing is lawful. This is well-established law in Arizona, Indiana, Minnesota, Missouri, Montana, New Hampshire, New York, Oklahoma, and Virginia. 2 But this still leaves open the question, when is picketing peaceful? In answer to this question a federal court said: 3 "The defendants claim to have the belief that physical violence alone is to be condemned. But all persons know that intimidation by words, by menaces, by numbers, by position, and by many other things is just as effective as by using clubs or brass knuckles or knives." It is the manner in which the picketing is conducted which determines its legality. Veiled threats toward the new em- ployees are condemned just as strongly as are acts of physical violence. Many courts have held that if the number of the pickets is large, the picketing is necessarily intimidating. 4 Others have gone so far as to assert that speaking to the new 1 Alabama, Code 1907, sees. 6494-95; Colorado M. A. S. 1912, sees. 464-465; Washington, L. 1915, C. 181. Among the cities which have adopted anti-picketing ordinances are Anniston (Ala.), El Paso (Tex.), Indianapolis and Noblesville (Ind.), Oakland, San Diego, and San Fran- cisco (Calif.). The El Paso ordinance was held valid by the Texas Court of Criminal Appeals in Ex parte Stout, 198 S. W. 967 (1917). Portland (Ore.) adopted by referendum an anti-picketing ordinance which was declared unconstitutional by the state supreme court. 2 Truax v. Cooks and Waiters, 19 Ariz. 379, 171 Pac. 121 (1917); Shaughnessy v. Jordan, 184 Ind. 499, II N. E. 622 (1916); Steffes v. Motion Picture Operators, 136 Minn. 200, 161 N. W. 524 (1917); St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908); Empire Theater Co. v. Cloke, 53 Mont. 183, 163 Pac. 107 (1917); White Mt. Freezer Co. v. Murphy, 78 N. H. 398, 101 Atl. 357 (1917); Butterick Pub. Co. v. Typographical Union, 50 Misc. I, 100 N. Y. Supp. 292 (1906); In re Sweitzer, (Oklahoma), 162 Pac. 1134 (1917); Everett- Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273 (1906). A leading de- cision of a federal circuit court of appeals to the same effect is Allis- Chalmers Co. v. Iron Molders, 166 Fed. 45 (1908). 8 Union Pacific R. Co. v. Ruef, 120 Fed. 102 (1903). 4 American Steel & Wire Co. v. Wire Drawers, 90 Fed. 598 (1898); Union Pacific R. Co. v. Ruef, 120 Fed. 102 (1903); Pope Motor Car Co. v. Keegan, 150 Fed. 148 (1906); Allis-Chalmers Co. v. Iron Molders, 150 Fed. 155 (1906); Foster v. Retail Clerks, 39 Misc. 48, 78 N. Y. Supp. 860 (1902) ; Searle Mfg. Co. v. Terry, 56 Misc. 265, 106 N. Y. Supp. 438 (1905); O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843 (1897); Jones v. Van Winkle, 131 Ga. 336. 62 S. E. 236 (1908). ii2 PRINCIPLES OF LABOR LEGISLATION employees against their will is intimidation. 1 Often the pay- ment of union benefits to induce the new employees to join the strikers has been prohibited in injunctions; and there are a few decisions sustaining such prohibitions. 2 In most cases involving picketing which come before the courts the evidence is contradictory. On behalf of the strikers testimony is pre- sented that the picketing has been conducted in an orderly manner, and that there have been no threats or acts of vio- lence. The employers in their turn allege that force, threats, and violence have been resorted to, and often they are able to point to specific acts of this character. Usually, however, the evidence leaves doubt as to the responsibility of the union for the acts of violence which have occurred. Such respon- sibility is assumed in many cases. There are few standards which the courts may employ to determine whether picketing has in fact been peaceful or intimidating. Hence, again, their bias is often determining, and the decisions have more fre- quently gone against organized labor than in its favor. Strikes, boycotts, and picketing have often been held il- legal. These are the weapons through which labor secures and maintains collective bargains with employers. Collective agreements are worthless without a strong union to back them up. They are not enforceable in courts of law. The unwill- ing employer is kept from violating them only through fear of a strike. Real collective bargaining implies equal strength upon both sides. It results only when each side is aware of the strength, ability, and willingness of the other. Then a joint conference is held and a compromise is effected. Neither will violate the agreement while the other party maintains its strength. Thus, it will be seen that restrictions upon the weapons which labor may employ in trade disputes are in fact limitations of its right to bargain collectively. The Clayton act of 19 14, 3 many believe, has removed the 1 Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152 (1901); Jersey Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 (1902); Goldfield Mines Co. v. Miners' Union, 159 Fed. 500 (1908). 2 Jersey Printing Co. if. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 (1902); Tunstall v. Steans Coal Co., 195 Fed. 808 (1911). To con- trary, Levy v. Rosenstein, 66 N. Y. Supp. 101 (1900); Everett- Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273 (1906). 3 United States, Laws 1913-1914, C. 323. COLLECTIVE BARGAINING 113 restrictions which hamper trade unions. The most tangible gain to labor is the provision for jury trial in contempt cases where the offense charged is also indictable as a crime. This act further provides that injunctions issued by the federal courts shall not prohibit the quitting of work, the refusal to patronize, peaceful picketing, or peaceful persuasion. Nor are these acts to be considered "violations of any law of the United States." These provisions are to apply whether these acts are done "singly or in concert." Yet those in charge of this legislation pointed out that it did not modify the law of conspiracy. When workingmen combine to injure an em- ployer or non-unionists, their illegal purpose colors all their conduct. Quitting work, for instance, though ordinarily lawful whether done "singly or in concert," becomes unlawful when undertaken in pursuance of an unlawful conspiracy. Hence, the Clayton act seems to make no material modifica- tions in the substantive rights of employers and employees. Certainly it does not affect cases in the state courts, which far outnumber those in the federal courts. (4) Restrictions on Employers and Employees Do similar restrictions apply to employers? In theory, yes, in practice, no. While the workingmen's right to strike is restricted, the employers' right to discharge is absolute. In the last decades many states have enacted statutes pro- hibiting employers from coercing workmen into surrendering their right to belong to labor unions through threatening them with discharge unless they comply with this demand. These statutes have uniformly been held unconstitutional, and the Supreme Court of the United States is among the courts holding this view. 1 The Supreme Court has also held that where workmen have signed an agreement to the effect that they will not belong to any labor union, all efforts made there- after to induce them to join a union are illegal. 2 These de- cisions have made it unquestionably lawful for an employer 1 Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277 (1908); Coppage v. Kansas, 236 U. S. I, 35 Sup. Ct. 240 (1915). 2 Hitchman Coal & Coke Co, v, Mitchell, 245 U. S, 229, 38 Sup. Ct. 65 ii4 PRINCIPLES OF LABOR LEGISLATION to maintain a shop closed to all union workmen. With these decisions must be contrasted those relating to the establish- ment of a closed shop through the effort of the union. It is true that it has often been stated that there is nothing unlawful about an agreement that only union men shall be employed, if the employer voluntarily enters into such an arrangement. The hub of the situation is that such contracts are usually not entered into voluntarily, but are gained through strikes. As has been noted, such strikes have often been condemned as an effort to injure non-unionists, or as amounting to coercion. Yet the Supreme Court has held that it is not "coercion" to threaten to discharge a workman unless he will renounce his union membership. 1 The theory of the absolute right of the employer to dis- charge results also in the virtual legalization of the blacklist. Most of the states of the union have laws prohibiting black- listing; but they have been dead letters. The explanation lies in the fact that employers may discharge or refuse to employ any workman who is an "agitator" or who belongs to a union. Anti-blacklist laws which merely prohibit the circu- lation of information as to who are union members are prob- ably constitutional, although one federal decision does not even grant that much. 2 He who circulates this information may be punished; but the employer who acts upon it is entirely within his rights. His reasons for refusing to employ or for discharging cannot be questioned in any court. In this day of the telephone, the telegraph, water-marked paper, and the card system, it is well-nigh impossible to prove who furnished the information upon which a blacklisted workman was dis- charged. Moreover, the supplying of such information by a former employer upon the request of the present employer is regarded as privileged. It is expressly declared legal in the anti-blacklist laws of many states. This is the simplest and most common manner in which an employer secures in- formation about the "records" of his employees. A work- man discharged for "union activity" as a result of informa- tion secured in this manner has no redress against either his employer or his former employer. If the information was 1 Coppage v. Kansas, 236 U. S. I, 35 Sup. Ct. 240 (1915). 2 Boyer v. Western Union, 124 Fed. 246 (1903). COLLECTIVE BARGAINING 115 supplied by an employers' association or furnished gratuitous- ly by the former employer, the blacklisted workman cannot recover unless he proves who furnished the information and that he was discharged as a result thereof. He cannot es- tablish either proposition unless the employer who discharged him is in sympathy with him. 1 This is not the case where the reason for the discharge was membership in a labor union. To all intents and purposes blacklisting is legal throughout the United States. That the blacklist is a powerful weapon in combating labor organizations cannot be questioned. To offset its effects unions have often adopted the policy of giving employment as organizers to members who have been blacklisted. Nor is there any doubt that this weapon is extensively used. There is no industrial center in which there are not scores who claim to have been blacklisted. The boycott in many respects is the counterpart of the blacklist ; but while blacklisting is prac- tically unrestricted by the laws and the courts, labor's use of the boycott is very seriously interfered with. In theory the same principles are applied in reference to the activities of employers as to those of labor. The absolute right of employers to discharge is stated to be paralleled by the right of the workmen to quit for any or no reason. In all the cases in which the right to discharge was at issue no element of combination was involved. Hence, it may be said that employers have not been freed from the conspiracy laws. But the important fact is that in cases involving em- ployers this question does not arise. Even when employers act in concert, the number of individuals involved is usually small, and the proof that there is a combination is difficult to obtain. Because of their small numbers employers can effectively act together without giving much publicity to their combination. In fact, in the case of the blacklist, its success depends upon secrecy. On the other hand, every collective action of labor must necessarily be public. A strike cannot take place without a meeting and a vote. The boycott de- pends for success upon publicity. The union must resort to 1 This explains why workmen who were discharged upon the demand of employers' liability insurance companies have sometimes been able to recover from these companies. n6 PRINCIPLES OF LABOR LEGISLATION the public rights of free speech, free press, and public assembly; but the employers' association succeeds through private cor- respondence. Again, it is evident that the collective activities of labor are much more likely to interfere with the rights of the public than are the acts of the employers. Pickets must use the streets, agitation may lead to violence, but the procuring of new employees is but an incident in the regular conduct of business. Another factor operating to give em- ployers a real advantage is the difficulty of getting the ques- tion of the legality of their actions before the courts. The strike and the boycott may be questioned because they in- vade the rights of the employers to free access to the labor market and to the commodity market. But no right of the workingman is violated when he is discharged, or when a new man is given the job which he quit in order to go on strike. (5) Justification of True Collective Bargaining Viewing the situation from the point of view of the practi- cal results, the conclusion is reached that the law to-day seriously restricts labor in its collective action, while it does not interfere with the parallel weapons of the employers. Is this result socially desirable? Fundamentally the question is whether collective bargaining by labor should be encouraged or discouraged. If collective bargaining is desirable, or- ganized labor must be conceded the free use of the methods through which it can secure and maintain trade agreements. The right of organization is valueless unless it is accompanied by the right to make the organization effective. The issue of the desirability of collective bargaining by labor is much confused by the parallel of the combination to control prices. Combinations to monopolize commodities are against public policy ; why then should labor unions be favored in the law? This parallel overlooks the vital distinction be- tween commodities and labor. The "commodity," labor, can never be divorced from the human being, the laborer. The labor contract is a bargain, not only for wages, but also for hours of labor, physical conditions of safety and health, risks of accident and disease. Labor cannot be placed upon the same plane with commodities, which are external and un- COLLECTIVE BARGAINING 117 human. It is in the interest of the public that the most favor- able conditions of labor shall prevail. Since labor constitutes such a large part of the public, the general welfare depends intimately upon its advancement. While the public suffers from high prices, it benefits from high wages. It is apparent that the individual laborer is at a great dis- advantage in bargaining with an employer. The employer is often a great corporation, which is itself a combination of capital. But the disadvantage of the laborer is even more fundamental. Being propertyless, he has no opportunity to make his living but to work upon the property of others. Having no resources to fall back upon, he cannot wait until he can drive the most favorable bargain. It is a case of the necessities of the laborer pitted against the resources of the employer. It is only when labor bargains collectively that its bargaining power approximates equality with that of capital. To treat labor unions as being in the same category with combinations to control prices is a misunderstanding of their functions. Labor unions are not business organizations, like corporations or partnerships. They have nothing to sell. When they enter into a trade agreement they do not obligate themselves to furnish a given number of laborers, or any laborers, at the terms agreed upon. They cannot do so, since they cannot compel their members to labor if these do not wish to work. The members of the union do not labor for the organization, but for themselves and their families. The difference between a labor union and a business organiza- tion, and between a trade agreement and an ordinary con- tract, is well expressed in a decision of the Supreme Court of Kentucky. 1 "A labor union, as such, engages in no business enterprise. It has not the power, and does not undertake, to supply employers with workmen. It does not, and cannot, bind its members to a service for a definite, or any period of time, or even to accept the wages and regulations which it might have induced an employer to adopt in the conduct 1 Hudson v. Cincinnati, N. 0. & T. P. R. Co., 152 Ky. 711, 154 S. W. 47 (1913). See also Burnetta v. Marcelline Coal Co., 180 Mo. 241, 79 S. W. 136 (1906) ; Barnes v. Berry, 157 Fed. 883 (1908); Fell v. Berry, 124 App. . 336, 108 N. Y. Supp. 669 (1907). T( 183 N. Y. 207, 76 N. E. 5 (1905). Div. 336, 108 N. Y. Supp. 669 (1907). To the contrary, Jacobs v. Cohen, n8 PRINCIPLES OP LABOR LEGISLATION of his business. Its function is to induce employers to estab- lish usages in respect to wages and working conditions which are fair, reasonable, and humane, leaving to its members each to determine for himself whether or not and for what length of time he will contract with reference to such usages. ... It [the trade agreement] is just what it, on its face, purports to be, and nothing more. It is merely a memoran- dum of the rates of pay and regulations governing, for the period designated, enginemen employed on the Chattanooga division of the company's railway. Having been signed by the appellee, it is evidence of its intention, in the conduct of its business with enginemen on said division, to be governed by the wages and rules, and for the time therein stipulated. Enginemen in, or entering, its service during the time limit contract with reference to it. There is on its face no con- sideration for its execution. It is therefore not a contract. It is not an offer, for none of its terms can be construed as a proposal. It comes squarely within the definition of usage as defined in Byrd v. Beall, 150 Ala. 122, 43 So. 749. There the court, in defining usage, said 'usage' refers to 'an estab- lished method of dealing, adopted in a particular place, or by those engaged in a particular vocation or trade, which acquires legal force, because people make contracts with ref- erence to it.'" The so-called "contract" which a trade union makes with an employer or an employers' association is merely a "gentle- men's agreement," a mutual understanding, not enforceable against anybody. It is an understanding that, when the real labor contract is made between the individual employer and the individual employee, it shall be made according to the terms previously agreed upon. But there is no legal penalty if the individual contract is made differently. To enforce the collective contract would be to deny the individual's liberty to make his own contract. That capital and labor should be treated equally is a prop- osition fundamental to American law. But the dual bar- gaining functions of capital must be distinguished. The price bargain is something very distinct from the wage bargain. The corporation deals with both; the laborer only with the wage bargain. Manufacturers' associations deal with the price COLLECTIVE BARGAINING 119 bargain; employers' associations with the wage bargain. Trade unions do not deal with consumers at all. Their func- tion is to offset the advantage the employer enjoys in bar- gaining about wages with the individual laborer. Equal pro- tection of the law does not consist in treating a trade union like a manufacturers' association, but in treating it like an em- ployers' association. This is not class legislation, but sound classification. Unions of labor are just as likely to abuse their power as are unions of manufacturers. No organization can be trusted with unlimited power. In the case of the price bargain the public has been compelled to enact railroad commission laws, in order to keep down the prices charged by corporations. Is there similar reason for public interference in the case: of the wage bargain? Trade unions have hitherto been treated as organizations for private purposes. 1 Should they be subjected to public regulation, as have been the monopolistic combi- nations ? There is a better safeguard than public regulation against the abuse of power by trade unions. This is the power of the employers to resist such demands. Herein lies the raison d'etre of the employers' association. It is to the interest of the public, not only that labor shall be free to bargain collec- tively, but that the employers should also be allowed to combine. Without organization -upon both sides there is only one-sided or pseudo-collective bargaining. When a corpora- tion deals with individual consumers or individual wage- earners, all the advantages of combination are on one side. Similarly, pseudo-collective is the bargaining maintained by the so-called "open shop" organizations of employers. Each wage-earner is compelled to accept the bargain which the association requires its members to demand when hiring a laborer. Labor unions also practise one-sided collective bar- gaining when they compel employers as individuals to "sign up" the agreements they offer. They use the power of their combination to prevent the employers from acting collec- tively. The labor union which refuses to recognize the em- ployers' association is setting up a pretense of collective bar- 1 See Coppage v. Kansas, 236 U. S. I, 35 Sup. Ct. 240 (1915). 120 PRINCIPLES OF LABOR LEGISLATION gaining, similar to the pretense of the employers' association when it proclaims, under the name of the "open shop," that it is entirely willing to employ union men but refuses to con- fer with the union. It is the usual outcome of such practices in these one-sided bargains for the union to insist on the closed shop against non-unionists, and for the employers under the name of "open shop " to run a non-union shop. Theoreti- cal principles of freedom are proclaimed to gain popular or legal support; but in actual practice each side when pos- sessed of unlimited power rides rough-shod over the rights of others. Real collective bargaining is something very different. It is premised upon organization on both sides. This requires getting together in a joint conference, and, through represen- tatives, making a trad-e agreement binding upon individuals on both sides. A compromise between the extreme positions is the result. While it is in force, a trade agreement is the supreme law of the industry. It may even override the con- stitutions and the by-laws of the two associations. Dictation is autocracy; conference is democracy. Trade agreements are likely to be tolerably satisfactory to both sides, as both have had a voice in framing them. In real collective bargain- ing also lies the protection of the public. It means fair condi- tions for labor, and yet conditions under which industry can operate. It is an assurance of a minimum of industrial disturbance. Restrictions in the law upon collective action upon either side are inconsistent with collective bargaining. Complete freedom to combine should be given to both employers and employees. This policy requires no change in the status in law of employers' associations and the weapons they use to combat labor. Some dead-letter statutes are directed against them; but these are of no practical importance. It is otherwise as to the restrictions upon collective action by labor. Moreover, these restrictions are likely to be even more seri- ous in the near future. The damage suit looms up as a new menace to labor. The injunction has lost many of its terrors on account of the frequency of its use. It is now more of an annoyance than a real obstacle to labor; but the damage suit is likely to mean the destruction of unionism in its present form. COLLECTIVE BARGAINING 121 (6) Damage Suits While there have been many damage suits in connection with labor disputes and many judgments against unions or their members, only two of these cases are important: the Danbury hatters' case l and the Arkansas coal miners' case. 2 Both of these cases involved suits for triple damages under the Sherman anti- trust act, and in both the cause of action antedated the passage of the Clayton act. The Danbury hatters' case was in the courts from 1903 to 1917 and was three times before the Supreme Court of the United States. In the end the plaintiff secured a judgment of nearly $300,000 (including interest) against 175 members of the hatters' union. The damages awarded were for losses sus- tained through a boycott conducted by the union officers. Only a few of the defendants had any direct connection with this boycott. They were held liable because they remained members of the union after they knew or had reason to know that the boycott was being conducted by their officers and agents. The Arkansas coal miners' case has been in the federal courts, since 1914. It is premised upon the destruction by violence of mining property in a strike provoked by an attempt of the plaintiffs to operate their mines as ' ' open shops ' ' in violation of a trade agreement. This suit runs against the United Mine Workers of America, several affiliated unions, and some in- dividuals who participated in the violence. In the trial court a judgment was rendered against the defendants for $600,000, plus interest, costs, and attorneys' fees. This decision was affirmed by the Circuit Court of Appeals of the Eighth Circuit, with the exception of the allowance of interest. An appeal was in 1920 pending before the Supreme Court of the United States. The decisions in these cases have established the principle that labor unions and their individual members are respon- sible, without limit, for the unlawful actions of the union officers and agents which they have in any manner authorized or sanctioned. Such antecedent authorization or subsequent 1 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908), 235 U. S. 522, 35 Sup. Ct. 170 (1915). - Dowd t>. Unitod Mine Workers, 235 Fed. I (1916) ; Coronado Coal Co. v. United Mine Workers (Circuit Court of Appeals, 1919). 122 PRINCIPLES OF LABOR LEGISLATION approval of unlawful acts does not require to be expressed, but may be inferred from all the facts in the situation. Membership in the union constitutes approval of the unlawful acts of the officers and agents when these have been given wide publicity. Many other suits against unions or their members for dam- ages in connection with labor disputes were in 1920 pending in the courts, involving in toto several million dollars. Most of these suits were pending in the state, not in the federal courts, and were not premised upon the anti-trust laws. Decisions already rendered have made it clear that damages may be recovered from labor unions or their members for any kind of wrongful conduct in their behalf, whether it be a boycott, an illegal strike, violence, or unlawful persuasion. The real menace to organized labor in the damage suit arises from the principles governing the responsibility of labor unions and their members for the unlawful acts committed in their behalf. It is often contended that labor unions should be made financially responsible for any unlawful conduct of their officers and agents. Such responsibility unquestionably exists already, and is unlimited. Neither union funds nor the ac- cumulations of individual unionists are safe from seizure. The menace of the damage suit is best brought out in the contrast between the position of the members of labor unions and that of stockholders in corporations. It is evident that labor unions are very much looser organizations than are cor- porations. Unions must entrust their officers with great power; the rank and file of the members know little about what the officers are doing. Even when members disapprove of the actions of the officers, they can ill afford to get out of the union, as they would lose their insurance benefits and in many industries would find it difficult to get a job. These are reasons why the members of labor unions should not be held to the same accountability for acts done in their be- half as are stockholders in corporations. But in the United States the members of labor unions have the greater liability. For a tort committed in behalf of a corporation, the stock- holders can be held only to the extent of their stock subscrip- tion, or double the amount, under certain laws regulating banks. The members of labor unions are responsible without limit for tortious acts done in their behalf. COLLECTIVE BARGAINING 123 (7) English Law of Labor Disputes Very nearly the same situation which has been created in the United States by the Danbury hatters' case and the Arkansas coal miners' case existed in England from 1901 to 1906, as a result of the decision of the House of Lords in the Taff Vale case. 1 In that case a union of railway workers was assessed damages in excess of $200,000 on account of injury to the company through acts of violence during a strike. The upshot of this case was the enactment of the British trade disputes act of 1906. This act places labor unions upon a position of equality with employers' associations, and dis- tinguishes both from combinations to control prices. It pro- vides that acts done by a combination, either of employers or employees, "in contemplation or furtherance of a trade dis- pute," shall be lawful unless they would be unlawful if done by one person. It provides further that such acts shall not be deemed unlawful because they interfere with another's free access to the labor and commodity markets, or because they amount to meddling by third parties with contractual rights. Thus, the law of conspiracy, in all its forms of state- ment, is declared not to be applicable to labor disputes. Moreover, in lieu of vague prohibitions of "violence," "in- timidation," and "coercion," England has definite statutory declarations as to the conduct which is unlawful. The divid- ing line between lawful persuasion and unlawful coercion is fairly definite, so that all who read may know. Picketing for the purpose of peacefully obtaining or communicating information, or of peacefully persuading another to work or abstain from working, is lawful. On the other hand, it is unlawful to commit acts of violence or sabotage, or persist- ently to follow another. Nor may any one quit work in violation of a contract when he has reason to know that the consequence of his leaving will be to endanger human life, or to expose valuable property to injury, or to deprive a city of gas or water. In English law there are no doubts as to the legality of labor unions or of employers' associations. Both the lockout 1 70 L. J. K. B., 905 (1901). i2 4 PRINCIPLES OF LABOR LEGISLATION and the strike are legal, as are the boycott and the blacklist. Parallel to the right of employers to get new workmen is the right of the strikers to picket peacefully and to induce them to abstain from working. England's policy is to allow both sides a free hand for a fair fight. It ignores the motives which underlie labor disputes. It does not interfere until the line of intimidation and violence has been crossed. And this is a line definitely established by statute, and not left wholly to the courts. Thus the English law has the merits of cer- tainty and practicality. The most radical departure in the British trade disputes act must still be noted. It is the exemption of trade unions and employers' associations and their members from all liability in tort for wrongful acts alleged to have been com- mitted in their behalf. This was Parliament's answer to the Taff Vale case. It made it impossible to maintain any dam- age suit against a trade union or an employers' association. This is a greater privilege than the limited liability of busi- ness corporations. The liability is not merely limited, it is removed in toto. Even though a union may be responsible for acts of violence, it cannot be sued for the damage it caused. Our courts hold the members of labor unions to the unlimited liability of partnerships; in England they are not liable at all. The position given in England to trade unions and em- ployers' associations violates that concept, fundamental in law, that he who is responsible for a wrong must answer therefor. But an overwhelming majority of Parliament be- lieved it sound policy to modify this principle to this extent. Prior to the Taff Vale case damage suits were never brought in England against trade unions. Whatever may have been the law, they enjoyed exemption, to all practical purposes, from actions in tort. In the United States, also, labor unions until recently occupied much the same position. And this practical exemption of unions from responsibility in damages has led to no dire consequences. Exemption of trade unions and employers' associations from actions in tort does not mean that wrongs they commit are allowed to go un- punished. The union members who are guilty of acts of violence can be held therefor, both criminally and in tort; but the members who have not been direct participants COLLECTIVE BARGAINING 125 in the wrongdoing cannot be held civilly liable as principals. As a curb upon union violence, it is doubtless much more effective vigorously to prosecute those who commit the violence than to take away the property of entirely inno- cent union members. The exceptional position given in English law to trade unions and employers' associations rests upon the proposition that collective bargaining is socially desirable. Trade unions are such loose organizations that a rigid application of the principles of agency law is unjust. , Such a doctrine operates to destroy the unions. This is even more true in the United States than in England, since many of the acts of unions that are lawful there are unlawful here. The law conceives of no responsibility other than financial responsibility, and of no check other than that furnished by the law. But a more satisfactory check upon abuse of power by unions is the like power of employers. The protection of the public lies in the equal strength of both parties to make the wage bargain. To this end restrictions upon collective action upon either side should be removed. Thus can col- lective bargaining in the voluntary sense be maintained and extended. 2. MEDIATION BY GOVERNMENT The development of large scale production and the growing complexity and interdependence of the social order have vast- ly increased the number and disastrousness of strikes and lockouts. 1 For settling differences and avoiding these far- 1 In the German Empire there were 10,484 strikes in the years 1899 to 1905, affecting 938,543 men, and 583 lockouts, affecting 207,800 men. In Austria there were 3,073 strikes affecting 572,746 men from 1894 to 1904, and 69 lockouts involving 43,395 men. In France, from 1890 to 1904, there were 7,741 strikes involving 1,865,620 men, and from 1900 to 1904, 7 lockouts involving 1,031 men. In Belgium there were 961 strikes affecting 274,654 men from 1896 to 1904. Italy had 3,852 strikes affecting 855,066 men from 1895 to 1903. In Great Britain and Ireland there were 6,030 strikes and lockouts affecting 1,783,889 men from 1895 to 1905 (Maximilian Meyer, Statistik der Streiks und Aussperrungen, 1907, pp. 43, 45, 71, 78, 107, 116, 133, 154, 158, 184). From 1881 to 1905 there were in the United States 36,757 strikes involving approxi- mately 8,703,824 employees, and 1,546 lockouts affecting 825,610 em- ployees (Commissioner of Labor, Twenty-first Annual Report, 1906, pp. 476, 477, 736, 737). 126 PRINCIPLES OF LABOR LEGISLATION reaching conflicts there have been devised four main meth- ods: mediation or conciliation, voluntary arbitration, com- pulsory investigation, and compulsory arbitration. (i) Definition of Terms By mediation or conciliation is usually meant the bring- ing together of employers and employees for a peaceable settlement of their differences by discussion and negotia- tion. The mediator may be either a private or an official in- dividual or board, and may make inquiries without com- pulsory powers, trying to induce the two parties by mutual concessions to effect a settlement. The successful mediator never takes sides and never commits himself as to the merits of a dispute. He acts purely as a go-between, seeking to ascertain, in confidence, the most that one party will give and the least that the other will take without entering on either a lockout or a strike. If he succeeds in this, he is really discovering the bargaining power of both sides and bringing them to the point where they would be if they made an agree- ment without him. Where the difficulty is due to the parties' not having thoroughly discussed the situation together, the mediator is often able to bring them into joint conference, and, in practice, most of the settlements have been arranged through compromise. In other cases the parties are unwilling to admit to each other the utmost concession they will make, fearing to weaken their position. In such cases a mediator whom both sides can trust can render invaluable service as an intermediary. Occasionally parties refuse to treat with each other, but will consent to make each a separate settle- ment with the mediator. Finally, mediators, through their familiarity with methods for dealing with analogous difficul- ties in different trades, are sometimes able to suggest a so- lution. In all cases the mediator is merely a confidential adviser. Even when he is a state authority he does not exer- cise any of the compulsory powers of the state, and if he even endeavors, by public investigations and recommendations, to bring public opinion to bear upon the disputants, he ; dis- qualifies himself for further mediation. Voluntary arbitration occurs when the two parties, unable COLLECTIVE BARGAINING 127 to settle the controversy by themselves or with the assistance of a mediator, agree to submit the points at issue to an um- pire or arbitrator, by whose decision they promise to abide. The complete procedure of arbitration consists of a number of steps: (i) The submission of the dispute to the decision of a third party; (2) submission to an investigation; (3) re- fraining from strike or lockout pending investigation; (4) drawing up an award; (5) enforcement of the award and re- fraining from strike or lockout during its life. Arbitration remains strictly voluntary even if at every step except the first the state uses its compulsory power. The essential thing is that both parties consent in advance to calling in the powers of government. Hence it is not inconsistent with the idea of voluntary arbitration for the state to use its power of com- pelling testimony, or even of enforcing an award, provided that both sides have previously agreed that this be done. Under the system of compulsory investigation a board created by the state summons witnesses and takes testi- mony on the initiative of one party to the dispute without the consent of the other, or upon its own initiative without the consent of either. The board is one of investigation and recommendation, without legal power to enforce its awards. Compulsory investigation is sometimes accompanied by pro- hibition of strikes or lockouts pending the completion of the investigation and the publication of the recommendations. This compulsory postponement is the characteristic feature of the Canadian industrial disputes investigation act of 1907, copied by Colorado in 1915, designed to prevent sudden strikes or lockouts. 1 But it is not essential to compulsory investigation. The alternative is compulsory investigation without the prohibition of strikes and lockouts, and this is provided for in the laws of several American states. 2 These laws are generally thought to establish voluntary systems of mediation, but they go beyond that point when they take testimony without the consent of either side. Compulsory arbitration consists in the government's directly or indirectly compelling employers and employees to submit their disputes to an outside agency for decision. In a com- 1 See "Coercion by Government," p. 172. 2 See "United States," p. 137. 128 PRINCIPLES OF LABOR LEGISLATION plete system of compulsory arbitration, government coercion is exercised at all five of the steps previously mentioned. Differ- ences must be submitted to arbitration; witnesses must testify and produce papers ; the parties must refrain from strike or lock- out during the investigation; the board must reach a decision and announce an award; the parties must observe the award and refrain from strike or lockout during its life. The penal- ties for violation are fine and imprisonment, not, however, imposed on a workman for ordinarily quitting work or on an employer for the ordinary discharge of a workman, but for quitting or discharging collectively or with intent to obstruct any of the steps essential to the arbitration. (2) Foreign Countries Voluntary arbitration attained its most characteristic de- velopment in England. Sir Rupert Kettle, one of the founders of the English system, wrote: "It is agreed that according to the spirit of our laws and the freedom of our people, any procedure, to be popular, must be accepted voluntarily by both contending parties," * and the whole history of con- ciliation and arbitration in England verifies his assertion. In the early years of the nineteenth century the effects of the industrial revolution, the repeal of the conspiracy laws in 1824 permitting the organization of many new unions, and the panic of 1828 with the ensuing years of depression, united to bring about a series of violent strikes and lockouts. These early collective disputes were envenomed by mistaken legis- lation to control the workmen, and the memory of the period embittered the relations of masters and workmen for years. Gradually, however, both sides began to see the futility of these destructive methods, and the idea of avoidance or peaceful settlement of trade disputes by means of joint boards of employers and employees took root. One of the very earliest of these boards was established for the Macclesfield silk trade in 1849, and was suggested by the French industrial 1 Jos. D. Weeks, "Report on the Practical Operation of Arbitration and Conciliation in the Settlement of Differences between Employers and Employees in England," Pennsylvania Doc. 1878-1879, Legislative Documents, Vol. II, Xo. 8. COLLECTIVE BARGAINING 129 courts (conseils de prud'hommes). 1 It proved a failure. In 1856 and 1860 committees of the House of Commons found the men favorable to arbitration, but the employers opposed to state intervention. The year 1860, in which A. J. Mundella established the first permanent board of conciliation and arbitration, marks the real beginning of the movement for conciliation, and between 1867 and 1875 countless boards were established without legislation. It was not until 1896 that Parliament enacted legislation dealing solely with collective disputes. The act of 1824 2 applied only to individual disputes and the act of 1867 3 attempted to introduce the French industrial courts. The act of 1872 4 provided for conciliation boards, but was a dead letter. In 1893 occurred the disastrous coal mine strike in which finally the government intervened and arranged a conciliation board similar to those which had been so widely organized without government interference. Following this came the conciliation act of 1896. It repealed the acts of 1824, 1867, and 1872. It entrusted to the board of trade 5 certain powers of mediation. The board might (i) register any private conciliation or arbitration board on application. This conferred no additional powers on these boards. (2) If the means of conciliation in a district were inadequate the board of trade might appoint mediators to confer with the parties as to the formation of conciliation boards. (3) In case of an in- dustrial dispute the board of trade might (a) make an inquiry, (b) bring the parties together, (c) on the application of one party appoint one or more conciliators, (d) on the application of both parties appoint an arbitrator. All expenses were paid by the government. Since the passage of the act two additions were made to the conciliation machinery of the board of trade before the war, neither of which necessitated further legislation. In 1908, the president of the board sent a memorandum to the chambers of commerce and employers' and workmen's associations, stat- 1 See "Industrial Courts," p. 86. 2 5 Geo. 4, C. 96. 3 30-31 Viet., C. 105. 35-36 Viet., C. 46 5 At that time similar to the United States Departments of the Interior, Commerce, and Labor. Its labor functions were in 1916 transferred to the newly created ministry of labor. 9 i 3 o PRINCIPLES OF LABOR LEGISLATION ing that the scale of operations of the board under the con- ciliation act required more formal and permanent machinery and announcing the creation of a standing court of arbitra- tion. Three panels were to be appointed by the board, the first comprising "persons of eminence and impartiality'^ from whom the chairman should be chosen, the second empfoyers, and the third worlonen. In case of a request for the services of the court, it should be nominated by the board of trade from these panels, either selected by them or jointly selected by the parties, and should consist of either one or two repre- sentatives of each side, and a chairman, who should have a vote. In addition, technical assessors or experts might be appointed by the board to assist the court. The members of the court would thus be unconnected with the particular dis- pute but representative of the respective classes. In 1909 the Forty-second Trades Union Congress adopted a resolution that the congress should elect the members of the workmen's panel, to guard against political influence, but the board of trade denied the request on the ground that "public con- fidence in the impartiality of the tribunal" was better served by the existing arrangement. The court of arbitration proving a failure, an industrial council, similar to that requested by the trades union congress in 1909, was created in 1911. It consisted of "representatives of the two great sides of the industry of the country." The chairman of the industrial council is called "chief industrial commissioner." The reasons for the creation of the council were the desirability of a na- tional representative body, and the fact that the president of the board of trade is necessarily a politician. The council , deals with cases referred to it for its opinion upon the facts only; with cases referred to it for inquiry and recommenda- tions, to be made public, or accepted, if so agreed upon; with cases referred by the board of trade or the government; and with general matters referred by the board for a representa- tive opinion. Registration of conciliation boards has been far from com- plete, but most unregistered boards furnished the board of trade with annual returns regularly until the war. The first report of the board of trade recorded one attempt to establish COLLECTIVE BARGAINING 131 a board where none existed, but the later reports contain no such information. Evidently that feature of the act has become a dead letter. In the settlement of disputes the board of trade has been more successful. From 1896 to 1913, 696 cases were dealt with, of which 345 involved a stoppage of work and 351 involved no stoppage. About 65 per cent, of the total cases occurred in the last six years of the period covered by this report, the highest number recorded being for I9I3- 1 Reports during the war were irregular. Concilia- tion and arbitration of railway disputes have been under an agreement secured through the board of trade in 1907. This agreement broke down in 1911 with a strike on every railway except one. It was then revised, so that a central chairman or arbitrator might be chosen from a panel prepared by the board of trade. On protest of the unions this revised agreement was to have lapsed in 1914, and further revision was postponed until after the war. Thus, prior to the war, legislation concerning arbitration and conciliation in Great Britain was entirely permissive and voluntary. Employers as a class favored negotiation through the voluntary conciliation boards, but many of them con- demned the interference of the state, partly on the ground that it assumed no responsibility for enforcing its award, and partly on the ground that the arbitrator is likely to have no practical knowledge of the trade. English trade unions have from the first favored conciliation and voluntary arbitration, but they are opposed to compulsory arbitration. Several efforts have been made in the trades union congress to secure indorsement of compulsory arbitra- tion, all of which have been defeated by large and increasing majorities. In 1908 a resolution was introduced requesting Parliament to amend the conciliation act of 1896 so as to give the board of trade powers of compulsory investigation on request of either party, no stoppage of work to take place pending inquiry and report. It was defeated by a large majority at that time and again in 1909. The exigencies of the war eventually influenced a reversal of the government's conciliation policy. During the first 1 Eleventh Report by the Board of Trade of Proceedings under Con- ciliation Act of 1896. 132 PRINCIPLES OF LABOR LEGISLATION year of the war, the "industrial truce" of August, 1914, and the "treasury agreement" of March, 1915, evidenced the patriotic desire of union leaders to avoid all stoppages of work. At first a marked success was attained. However, the increas- ing living costs and war profiteering renewed dissatisfaction among the workers, and weakened the government's confi- dence, in the efficacy of existing arbitration and conciliation machinery to care for the situation. The defense of the realm act of 1914, with subsequent amendments, made a criminal X offense of instigation of a strike in certain industries. The munitions of war act of July, 1915, made a punishable offense of a strike or lockout, and even of individual cessation of work without permission. As first promulgated, the act estab- lished "controlled industries," in which it was illegal to engage in a lockout or strike without first submitting grievances to the proper tribunals and awaiting the decision for at least one month from date of submission of grievances. No worker in "controlled industries" was allowed to quit his employer without obtaining a dismissal certificate under penalty of enforced unemployment for six weeks. "Controlled indus- tries " being those directly or indirectly concerned in the manu- facture of munitions, it was apparent that under pressure of war the government was brought to a strict regulation of comparatively all phases of industrial disputes. The arbitration structure built up under the munitions act was distinctly a government affair. General and local muni- tions tribunals were provided, each to consist of a chairman appointed by the government, and if necessary from two to four "assessors" selected from panels of employers and em- ployees appointed by the government. Only the more serious differences were referred to the general tribunals; failing set- tlement, they were carried to the "committee of production," which antedated the ministry of munitions by several months. Later a special tribunal to deal with women's wages was authorized. Later also permission was granted a disputant to appeal from a munitions tribunal to a high court judge. K. Despite the munitions act strikes increased, particularly large strikes. The Welsh coal strikes of July and August, 1915, and the engineering disputes of March and April, 1916, were in effect protests against the government policy. In the COLLECTIVE BARGAINING 133 engineering disputes the shop stewards' movement emerged as a serious factor, and the government invoked the defense of the realm act to arrest the ringleaders. In the coal strike all the existing agencies of arbitration and conciliation, in- cluding the board of trade, intervened without success; the dispute was not settled until the prime minister had granted labor's demands. Miners' outbreaks throughout the year led to government control of the mines in December. The gov- ernment did not inflict on the miners the penalties prescribed under the munitions of war acts. The total number of cases heard before munitions tribunals from their inception to July i, 1916, was 5,354, involving 16,930 defendants and resulting in 11,794 convictions. Of the complaints against workpeople there were thirty-four strike prosecutions and 599 out of 1,023 defendants were convicted. Approximately 7 5 per cent, of the defendants in breaches of rules cases were convicted. No lockout complaints were recorded against employers, but seventy-one of the 115 defendants on the charge of illegal employment of workmen were convicted. From December, 1915, to July, 1916, 3,225 of the 12,188 ap- plications for dismissal certificates were granted. 1 The min- ister of munitions reported in 1916 that up to that time only about one-fifth of i per cent, of strikers were prosecuted. In November, 1918, it was estimated that the munitions of war acts had at that time operated during 75 per cent, of the war period, but 85 per cent, of the total time lost by strikes during the war occurred in that interval. 2 The third year of the war brought a partial confession of defeat from the government in the enactment of the amend- ment of August, 1917, to the munitions act. In June, 1917, the engineering strike had registered labor's strong disap- proval of the introduction of dilution of labor in private engineering work. Strike leaders were arrested but later released without prosecution after the prime minister had intervened to force a settlement. A commission of inquiry into industrial unrest, appointed in June, reported one month 1 British Parliament Report, Return of Cases Heard before Munitions Tribunals up to July i, 1916, Cd. 8360. 2 Milton Moses, "Compulsory Arbitration in Great Britain during the War," Journal of Political Economy, November, 1918, pp. 882-900. i 3 4 PRINCIPLES OF LABOR LEGISLATION later, urging especially repeal of the dismissal-certificate regulations and reform of procedure under munitions tribu- nals. In October, 1917, the government abolished the leaving- certificate regulations. In 1917 the government, through a sub-committee of the ministry of reconstruction, the "Whitley committee," con- sidered means of securing a "permanent improvement in the relations between employers and workmen." The Whitley committee made five reports, proposing collective bargaining through a system of national and district industrial councils and works committees, representing equally organizations of employers and employees. 1 In the semi -organized and un- organized industries the substitution or close supervision of industrial councils by the minimum wage trade boards, under the trade boards act of 1909, was urged. The exact deter- mination of the functions of industrial councils was left to the employers and workers concerned. It was the opinion of the Whitley committee that the councils should disclaim interference with the existing machinery of conciliation boards. A suggested remedy for the lack of coordinated conciliation policy was the formation of a standing arbitration council on the lines of the "committee of production," one task of which should be the fullest publicity of the decisions of the single arbitrators. The Whitley committee went on record as op- posing compulsory arbitration and the enforcement of awards or agreements by monetary penalties ; for such procedure was "not desired and not effective." Objections to the Whitley report were freely expressed by the government, employers, and workers. The government demurred at the trade boards' assisting the formation of in- dustrial councils, the boards being organized for an entirely different purpose. The associations of employers indicated that the Whitley scheme would continue on a large basis the conflict between labor and capital, and that it meant a con- tinuance of state control. Labor organizations feared that the outcome would be compulsory arbitration, disapproved of the exclusion of technical men from the councils, and stated that the industrial councils might combine to raise wages and 1 British Parliament Report, Interim Report of Sub-committee of Minis- try of Reconstruction on Joint Industrial Councils, March, 1917, Cd. 8606. COLLECTIVE BARGAINING I35 costs of production, placing the burden on the consumer. Notwithstanding objections, the government encouraged the scheme. Beginning with the pottery and building industries, thirty-five joint industrial councils had been established up to May 13, 1919, and thirty-six additional industries had| made a start toward the organization of a council. 1 In reviewing the course of arbitration during the period of the war in Great Britain, it is important to bear in mind that patriotism was an immeasurable factor in the attitude of workers toward arbitration. In the last full year before the war, 1,497 disputes were reported. Under the conciliation act of 1896, twenty-seven strikes or lockouts were settled by conciliation or arbitration in 1913, and forty-four cases were settled without stoppage of work. 2 A marked decrease in the number of disputes was apparent at the beginning of the war. The total disputes for 1915 and 1916 do not equal the figure for the single year of 1913. How much of this decrease can be laid to the principles of compulsory arbitration under the munitions of war acts, and how much to the patriotic impulse of the workers, is difficult to determine. It is significant, however, that the lowest point in industrial unrest during the war was the period from August, 1914, to August, 1915, when voluntary cooperation on the part of the workers was the only compelling bond. Of further significance is the sudden doubling of the number of recorded trade disputes in 1918, over 1917. Two conclusions emerge from British war experience with compulsory arbitration. One is that the composing of indus- f trial differences is the business only of the two parties to a disptite. The mere existence of laws and machinery did not ^ diminish tie-ups in industry. The larger and more important the strike the more complete was the breakdown of existing machinery, and the more often the government had to inter- pose to settle differences. The acceptance of the Whitley report tacitly recognizes that the compulsory introduction of 1 United States Department of Labor, Monthly Labor Review, Novem- ber, 1919, p. 236. 2 British Parliament Reports, 1914-16, Vol. XXXVI, Report on Strikes and Lockouts and on Conciliation and Arbitration Boards, 1913, p. 98, Cd. 7658. 136 PRINCIPLES OF LABOR LEGISLATION third parties to a dispute was "not desired and not effective." The second conclusion is that the most effective means of conciliation is the worker's conviction that he is a responsible factor in the management and control of industry. Some- thing of this conviction was apparent in the railway strike of September, 1919, when a committee of transport workers mediated, apparently with success, between the government and its striking railway employees, thereby ending a nation- wide tie-up. But the Whit ley report and recent trade agree- ments are the most tangible evidence of the increased respon- sibility given workers in controlling industry. As a means of conciliation and as a preventive of open disputes, the new responsibility seems a fruitful advance. Legislation providing for mediation or conciliation and for voluntary arbitration is found also in France, Germany, Aus- tria, Denmark, Italy, Sweden, Belgium, Roumania, Servia, Spain, the Netherlands, Switzerland, and Argentina. 1 The French law of 1892 applies to all industries and makes jus- tices of the peace mediators. In Germany the law of 1890, revised in 1901, provides that the industrial courts 2 shall act as boards of arbitration. (j) United States a. State Legislation. A majority of the states have legisla- tion providing for the settlement of industrial disputes, and Wyoming has a constitutional provision to the same effect. 3 Many of these states have permanent boards called boards of conciliation and arbitration or some similar title, with from two to six members, although three is the usual number. It 1 See United States Bureau of Labor, Bulletin No. 60, September, 1905, "Government Industrial Arbitration," L. W. Hatch; Bulletin of the In- ternational Labor Office, 1906-1918; United States Bureau of Labor, Bulletin No. 98, January, 1912, "Industrial Courts," H. L. Sumner (for Germany). 2 See "Industrial Courts," pp. 86-88. 3 See United States Bureau of Labor Statistics, Bulletins No. 148, 1914, "Labor Laws of the United States"; No. 166, 1915, "Labor more recent annual summaries in the American Labor Legislation Review. COLLECTIVE BARGAINING 137 is provided in every state except Alabama that one member shall be a representative of the employees, while all but Ala- bama and Connecticut provide for representation of employ- ers. The Oklahoma board represents farmers in addition. Many states forbid that more than two members of the board be chosen from the same political party. In other states the labor commissioner acts as mediator, as in Idaho, Indiana, and Maryland. In states having industrial commissions, a chief mediator is appointed along with temporary boards for arbitration. In a score or so of states compulsory investigation is pro- ^ vided for. 1 The state board of arbitration must proceed to make an investigation (i) on failure to adjust the dispute by mediation or arbitration, as in Indiana and Massachusetts; (2) when it is deemed advisable by the governor, as in Ala- bama and Nebraska; or (3) simply when the existence of the dispute comes to the knowledge of the board, as in Colorado and Vermont. In other states such investigation is permis- sive. The board of arbitration may investigate (i) when it is deemed advisable by the industrial commission, as in New York. In Ohio the industrial commission can make an in- vestigation, if it deems necessary, where a strike exists or is threatened, but if no settlement is obtained on account of the opposition of one of the parties investigation is to be made only if requested by the other party. Compulsory in- vestigation may be employed (2) when both parties refuse arbitration and the public would suffer inconvenience, as in Illinois and Oklahoma, or simply where the parties do not agree to arbitration, as in New Hampshire; (3) or generally, whenever a dispute occurs, as in Connecticut and Minnesota. Provision for enforcement of an arbitration award when-i arbitration has been agreed to by representatives of both sides is made by about a dozen states. In Illinois, if the court has ordered compliance with an award, failure to obey is punishable as contempt, but not by imprisonment. In Idaho and Indiana the award is filed with the district court clerk, and the judge can order obedience, violation being pun- 1 Alabama, Colorado, Connecticut, Idaho, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New York, Ohio, Oklahoma, Utah, Vermont. 138 PRINCIPLES OF LABOR LEGISLATION ishable as contempt, but imprisonment may be inflicted only for wilful disobedience. In Missouri violation of a binding award is punishable by a fine or jail sentence, and in Ohio a binding award may be enforced in the county court of common pleas as if it were a statutory award. In Nevada, Texas, and Alaska the award is filed with the district court clerk, and may be specifically enforced in equity. In Nevada appeal is made to the supreme court, in Texas to the court of civil appeals, and in Alaska to the United States Circuit Court of Appeals. Colorado is the only state that has copied (1915) the Canadian act forbidding strikes or lockouts in certain in- dustries pending investigation and recommendation. > In about twenty states the voluntary agreement to arbi- trate must contain a promise to abstain from strike or lock- out pending arbitration proceedings. 1 In Massachusetts it is the duty of the parties to give notice of impending stop- page of work. In Nevada and Alaska strikes or lockouts dur- ing arbitration, and in Alaska for three months after, with- out thirty days' notice, are unlawful and ground for damages. b. Federal Legislation. Federal legislation on mediation and arbitration is comprised in five acts concerning inter- state commerce carriers, the act of 1888, the act N of 1898 (the Erdman act) , the act oj. igY^lthe Newlands^actyTSectioji 8 of the act creating the Department of Labor, also, enacted in igii and Title III of'Hie transportation act by which the railroads were~^etufneo!~tD~ private hands on March, i, 1920, at the end of the war-time period of government control and operation. The act of 1888 provided, on the initiative of the President of the United States, for voluntary arbitra- tion, compulsory investigation, and publication of the de- cision. It also provided that the President might appoint 'two commissioners, who, with the United States Commissioner of Labor, should investigate controversies and make to the President and to Congress a report, which should be pub- lished. The investigation might be made on application of one of the parties, of the governor of the state concerned, or on the President's own motion. The act of 1888 was on the 1 Alabama, Alaska, California, Colorado, Connecticut, Indiana, Iowa, Louisiana, Maine, Massachusetts, Montana, Nebraska, New Hampshire, Ohio, Texas, Utah, Vermont. COLLECTIVE BARGAINING 139 statute books ten years and in that time no attempt is known to have been made to apply the arbitration provision. Only once was an investigating commission appointed, that for the Pullman strike at Chicago in 1894, and on that occasion the commission took no action toward settling the dispute. In 1898 the Erdman act 1 was passed, repealing the earlier law. It applied to common carriers and their officers and employees except masters of vessels and seamen, engaged in interstate commerce, by railroad or by railroad and water, the term "employees" including only those actually engaged in train operation. The act was therefore restricted to en- gineers, firemen, conductors, trainmen, switchmen, and teleg- raphers. In case of a dispute, the chairman of the Inter- state Commerce Commission and the Commissioner of Labor must on application of either party endeavor by mediation to adjust the difference. Mediation was conditioned on re- quest by one party, and on acceptance of the mediator's offer by the other party. If mediation proved unsuccessful, the mediators were to urge arbitration, and if the parties agreed a board of arbitration was formed, one member being named by each party and the third by these two. Failing their agree- ment on a third, he was to be named by the commissioners. The submission was to contain the following provisions: Pending arbitration the status existing immediately prior to the dispute was not to be changed; the award was to be filed with the clerk of the United States circuit court for the district and should be final and conclusive except for error of law; the parties must be bound by the award and it might be specifically enforced in equity, as far as the powers of a court of equity permit; neither side was to cease work on account of dissatisfaction with the award, for three months, without thirty days' notice; the award should continue for one year and no new arbitration should be had on the same subject in that time. The award being filed, judgment was to be entered accordingly at the end of ten days, unless ex- ceptions were filed for matter of law. Appeal might be taken from the decision of the circuit court to the circuit court of ap- peals, whose determination should be final. The arbitrators United States, Laws 1898, C. 370. i 4 o PRINCIPLES OF LABOR LEGISLATION were given powers of compulsory investigation, and strikes or discharge of employees except for good cause were made unlaw- ful pending arbitration and for three months after an award. Violation subjected the offender to liability for damages. During the first eight years after the enactment of the Erdman law only one attempt was made to invoke it, 1 and that proved futile; but from 1906 until the act was super- ~~~~~seded there was no serious strike, actual or threatened, in which"" one of the parties did not seek settlement under its terms.' Only one failure to adjust, when mediation was ac- cepted before a strike began, is recorded. From 1898 to 1912, forty-eight applications for mediation and arbitration were received, the total mileage involved having been over 500,000 and the number of employees over 160,000. Nineteen applications were made by employers, thirteen by employ- ees, and sixteen by both together. Mediation was involved in forty-four cases, of which eight were carried to arbitration. Four cases were directly submitted to arbitration. Almost invariably, when one side applied for mediation, the offer was at once accepted by the other, the exceptions having been comparatively unimportant. At the time the Erdman act was passed the arbitration features were regarded as para- mount, but in practice the mediation features proved more valuable. Mediation proceedings were made as informal as possible. Conferences were held with the two parties sep- arately, a joint meeting being held only when complete settle- ment or agreement to arbitrate was reached, and a fixed rule was observed that neither side should know what concession the other was willing to make, until the final agreement. The terms of settlement were not published without authorization of the parties. In the twelve arbitration cases, the first two arbitrators were able to agree on the third in only three instances. In no case was there repudiation by either side of an arbitration award, and there is only one instance of an appeal to the court, which proved most unsatisfactory on account of the prolonged litigation necessary. 2 1 1899- 2 The act of March 4, 1911, authorized the President to designate any member of the Interstate Commerce Commission or of the Court of Commerce to take the place of the chairman. COLLECTIVE BARGAINING 141 In July, 1913, the Erdman act was superseded by the New- lands act. 1 It provides that a Commissioner of Mediation and Conciliation be appointed by the President with the advice and consent of the Senate, his term to be seven years. The President is also to designate not more than two other gov- ernment officials, appointed with the consent of the Senate, to constitute, with the commissioner, the United States Board of Mediation and Conciliation. In the same manner the President must appoint an assistant commissioner of mediation and conciliation, to take the place of the com- missioner if he be absent or the office vacant, and otherwise, to assist him. In case of a controversy to which the law applies either party may apply to the Board of Mediation and Conciliation, which must seek to effect an amicable ad- justment and if unsuccessful must urge arbitration. If in- terruption of traffic is imminent and would prove detrimental to the public, the board may proffer its services as mediator. In case of a dispute over any agreement reached through the mediation of the board, either party may apply to it for an opinion. On the failure of mediation, a board of arbitration may be formed, composed of six or three arbitrators. Each side chooses two members, or one membef, and these choose together the remaining two or one. In case of failure to agree, the Board of Mediation and Conciliation names the remain- der. Unorganized employees may choose their representative through a committee. The agreement to arbitrate must comply with the following requirements: (i) It must be in writing, (2) it must state arbitration is had under the act, (3) it must specify whether there are to be three or six arbi- trators, (4) it must be signed by the accredited representatives of both parties, (5) it must specify the questions to be decided, (6) it must state that a majority award is valid, (7) it must stipulate the maximum interval from the completion of the board to the beginning of hearings, (8) it must stipulate the maximum interval from the beginning of the hearings to the handing down of the award, this time to be thirty days unless otherwise agreed, (9) it must state the date on which the award becomes effective and the life thereof, (10) it must promise United States, Laws 1913, C. 6. i 4 2 PRINCIPLES OF LABOR LEGISLATION faithful execution of the award, (n) it must declare that the award, testimony, etc., are to be filed with the clerk of the appropriate United States district court, and (12) it may pro- vide that differences as to interpretation be referred back to the board, their ruling to have the force of the original award. Upon consent of both parties the board of arbitration is given powers of compulsory investigation. The arbitration agree- ment must be acknowledged before -a notary public, the clerk of a United States district or circuit court, or one of the Board of Mediation and Conciliation. The award is to become operative in ten days after being filed, unless exception be taken for matter of law apparent upon the record. Decision is rendered by the district court, or, on appeal, by the circuit court of appeals. Parties may jointly ask to have a board of arbitration reconvened. Nothing in the act may be con- strued so as to require service of any employee, and no in- junction or other legal process may issue to compel perform- ance by any employee of a contract. 1 For the four years ending June 30, 1917, the Federal Board of Mediation and Conciliation functioned in seventy-one controversies, fourteen of which were settled partly or wholly by arbitration, and fifty-two by mediation. 2 One dispute was settled by Con- gressional action, the Adamson law, which meant, in effect, the breakdown of the Newlands act. The outstanding feature of events leading up to the Adam- son law of September, 1916, was the failure of arbitration by existing agencies. The demands of the railway brotherhoods were met with counter-demands by the railway managers and the proposal to refer demands of both sides to arbitration under the Newlands act or by the Interstate Commerce Com- mission. The brotherhoods refused arbitration. Their ex- perience with settlements by third parties had not been for- tunate, they asserted. An overwhelming strike vote set the stoppage of work for September 2, 1916. The Federal Board of Mediation and Conciliation exercised its prerogative of 1 F. H. Dixon, "Public Regulation of Railway Wages," American Economic Review, Vol. V, 1915, pp. 245-269; United States Bureau of Labor, Bulletin No. 98, January, 1912, "Mediation and Arbitration of Railway Labor Disputes in the United States," C. P. Neill. 2 Report of United States Board of Mediation and Conciliation under Newlands act, December, 1917, p. 3. COLLECTIVE BARGAINING 143 offering mediation, but a four-day conference failed to bring agreement. Facing a country-wide railroad tie-up, the Pres> dent conferred with both sides to the controversy and proposed (i) the concession of the eight-hour day, (2) postponement of the other demands until a commission appointed to investi- gate the effect of the eight-hour 4ay reported. The brother- hoods agreed, but the managers delayed. The President asked Congress for legislation not only to deal with the exist- ing situation, but also to remedy the all too apparent failure of the Newlands act. The Congressional, answer was the Adamson law, passed on the day the strike was to have gone into effect. The law embodied just the proposals made by the President to the railroad men and employers. It was plainly evident that the Federal Board of Mediation and Conciliation met defeat largely through the refusal of the workers to submit voluntarily to arbitration. This difficulty was recognized by the President again in December, 1916, when he asked Congress for compulsory arbitration legisla- tion. War legislation swamped Congress before action was taken on his recommendation. The Newlands act again failed in March, 1917. At that time the brotherhoods renewed strike threats, owing to the delay of the Supreme Court in deciding the constitutionality of the Adamson law 1 and to the alleged evasions of the rail- road managers during the Supreme Court's delay. Disre- garding the existing Federal Board, the President immediately appointed a committee of the Council of National Defense to mediate. Into the resulting agreement was written the estab- lishment of the eight-hour day and provision for a commission of eight, representing employers and employees, to decide disputes under the agreement. The Eight-hour Commission appointed under the Adamson law reported inconclusively shortly after the railroads were taken under control by the government for the period of the war. The labor situation was immediately taken hold of when the government assumed railroad control and operation in December, 1917, following the breakdown of the roads. A Railway Wage Board was appointed in January to make 1 Finally upheld in Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298 (1917). 144 PRINCIPLES OF LABOR LEGISLATION recommendations to the Director-General, and a Division of Labor, headed by a brotherhood official, was created in Feb- ruary to be the connecting link between employees and officials on one hand, and Railway Boards of Adjustment, when later instituted, on the other. The Railway Wage Board's recom- mendations were accepted by the Director-General and orders were issued providing for substantial increases in wages among all classes of employees. Thereafter a permanent advisory board on "Railway Wages and Working Conditions" was created. Successive orders of the Director-General formu- lated a liberal labor policy and established machinery for handling disputes under these orders. Board of Adjustment No. i, dating from March, 1918, dealt with controversies affecting conductors, engineers, trainmen, firemen, and en- ginemen; up to December i, 1918, it had docketed 408 cases and made 292 decisions. Board of Adjustment No. 2, author- ized in May, 1918, for workers in mechanical departments, handled 147 cases and made 128 decisions up to December, 1918. Board of Adjustment No. 3, with jurisdiction over telegraphers, switchmen, clerks, and maintenance-of-way men, had docketed only one case in its fortnight's existence prior to December i, ipiS. 1 In all cases coming before Boards of Adjustment it was obligatory that the usual attempt at carrying the disagreement to the chief operating official of the railroad be made before calling on the boards. The boards were composed equally of representatives of the ad- ministration and employees, and their liberal decisions did much to smooth out the differences remaining after the break- down of the Newlands act and the enactment of the Adamson law. While the railroad employees officially voiced their approval of the government Boards of Adjustment, on which only the parties in dispute were the arbitrators, they have consistently opposed the submission of disagreements to a neutral party which is in their opinion either biased or ignorant. The act of March 4, 1913, creating a Department of Labor, provides that the Secretary of Labor shall have power to act as mediator and to appoint commissioners of conciliation in labor disputes, whenever in his judgment the interests of 1 Annual Report of Director-General of Railroads, 1918, pp. JVl6 COLLECTIVE BARGAINING 145 industrial peace may require it to be done. 1 No appropriation was made for the expenses of commissioners till October, 1913, and none for their compensation till April, 1914. Until the latter date, therefore, it was necessary to detail government employees from their regular work. An executive clerk was appointed in July, 1914, and the work systematized. In three important disputes the Secretary of Labor's offer of mediation was rejected. In the Pere Marquette Railroad shop strike, the Calumet copper miners' strike, and the Colorado coal strike, mediation was desired by the employees, but declined by the em- ployers. In case mediation fails, arbitration may be proposed by the mediators, but they do not themselves act as arbitrators. In the five years 1915 to 1919, inclusive, the Secretary of Labor took cognizance of 3,644 cases, effecting 2,539 adjustments. During 1919 alone, 1,780 assignments of commissioners of conciliation resulted in 1,223 adjustments, not including 219 cases referred to the National War Labor Board. 2 In addition to the direct efforts of the Secretary of Labor, two arbitration boards were called into existence to meet exigencies of war. The President's Mediation Commission, appointed in the fall of 1917, under the chairmanship of the Secretary of Labor, made settlements or investigations in (i) the copper mines of Arizona, (2) the California oil fields, (3) the Pacific coast telephone dispute, (4) unrest in the lumber industry of the Northwest, (5) the packing industry. It should be recalled that this commission was a government enterprise beginning its study generally after an acute situation had arisen. Its primary intention was investigation rather than arbitration ; but settle- ments were made in all disputes except the lumber industry, largely because existing means of arbitration had failed. The National War Labor Board was the outgrowth of con- ferences between representatives of employers' and employees' organizations, the public, and the government. Its existence was not sanctioned by specific legislation, but was the result of a Presidential proclamation in April, 1918. The member- ship of the board consisted of joint chairmen representing the public, selected respectively by employers' and employees' national organizations, and five representatives of each of 1 United States, Laws 1912-1913, C. 141, Sec. 8. 2 Secretary of Labor, Seventh Annual Report, 1919, p. 43, i 4 6 PRINCIPLES OF LABOR LEGISLATION the two groups. Premises to govern its decisions were the first business of the board, and the following were arrived at: (i) No strikes or lockouts during the war, (2) settlement of controversies by mediation or conciliation, (3) provision of machinery for local mediation and conciliation, (4) summons of parties to the controversy before the national board in the event of failure of local machinery, (5) failing to reach decision in the national board, provision of an umpire appointed by national board or by the President from a panel of disinter- ested persons, (6) refusal to take cognizance of dispute where other means of settlement by agreement or federal law had not been invoked, (7) right of employers and employees to organize without discrimination, (8) right of collective bar- gaining. Acting on these principles as an official expression of the government's war labor policy, the board received 1,245 controversies up to May 3 1 , 1 9 1 9 . In 46 2 of these cases awards or finds were made, 391 were dismissed because of voluntary settlement, lack of jurisdiction, or for other reasons, 315 were referred to other agencies having primary jurisdiction, fifty- three, involving only three distinct disputes, remained on the docket because the board was unable to agree, twenty-three were pending, and one was suspended. 1 y~ In the enforcement of awards the National War Labor Board had no specific legal sanction or penalty; appeal was usually made to patriotic motives. There were but three instances of resistance to the board's awards. In one case the Western Union Telegraph Company discriminated against union employees and refused to abide by the board's decision in favor of the men. The President was rebuffed in his appeal for patriotic acquiescence, but was sustained by Congress in taking over the telegraph lines for the government. Later, in September, 1918, the organized workers at Bridgeport, Conn., struck against an award of the board, but on the President's threat of unemployment enforced by governmental agencies, they returned to work. Finally, the Smith & Wesson Com- pany in Springfield, Mass., manufacturing firearms, refused to abide by the board's warning not to discriminate against union employees, and the President retaliated by ordering the War Department to take over the factory. Secretary of Labor, Seventh Annual Report, 1919, pp. 112-113. COLLECTIVE BARGAINING 147 The policy of having disputes settled by representatives of the two parties most directly at interest, the workers and the employers, was in the main adopted in the transportation act of I920. 1 The act declares it the duty of the roads and of their employees to "exert every reasonable effort and adopt every available means to avoid any interruption to the opera- tion of any carrier" growing out of any dispute. In case a dispute arises, it is to be decided if possible in conference between representatives of both sides. Such disputes involv- ing only grievances, rules, or working conditions, as cannot be settled in this way, are to go before "railroad boards of labor adjustment," which may be established by agreement between any road or group of roads and the employees. Ex- cept that the boards are to contain representatives of the organized workers, their size and composition are left entirely to the parties concerned. Matters may come before the adjustment boards either upon application by the road or the organized workers affected, upon written petition of a hundred unorganized employees, upon the board's own mo- tion, or upon the request of the "Railroad Labor Board." This Railroad Labor Board is set up by the act as the final tribunal for the settlement of railroad labor disputes. It is composed of nine members, appointed by the President with the consent of the Senate, to represent in equal proportion the workers, the employers, and the public. The three repre- sentatives of the first two groups are to be selected from a list of not less than six nominees submitted by the two groups themselves. Members of the board may not, during their five-year term of office, be active members or officers of labor organizations or hold stocks or bonds of any carrier. Dis- putes come before the Railroad Labor Board either upon failure of the adjustment board, or directly. All of its de- cisions must be by majority vote, but on matters taken up directly one of the members representing the public must concur in the decision. The Railroad Labor Board also has power to suspend any decision on wages made by the initial conference, if it is of the opinion that the decision "involves such an increase in wages or salaries as will be likely to 1 United States, Transportation act, approved February 29, 1920. 148 PRINCIPLES OF LABOR LEGISLATION necessitate a substantial readjustment of the rates of any carrier." In such cases the Railroad Labor Board must, after a hearing, affirm or modify the suspended decision. As principles for settling standards of wages and working con- ditions, consideration must be given to wage scales in other industries, cost of living, hazards of the employment, training and skill required, degree of responsibility, character and regularity of the employment, and inequalities resulting from previous adjustments. Hearings on alleged violations of de- cisions are to be held by the Railroad Labor Board, which must publish its decision. The Board of Mediation and Con- ciliation created in 1913 is still left in operation, but its juris- diction does not extend to any dispute under investigation by the boards established under the new act. A semi-official instance of arbitration occurred in the case of the great anthracite coal strike in Pennsylvania in 1902. In this case the government appointed an arbitration com- mission on the request of the parties without any special authority in law. 1 The miners wanted an agreement, the operators felt that it would not be binding and that the union obstructed discipline. In October, five months after the be- ginning of the strike, President Roosevelt appointed the An- thracite Coal Strike Commission. The men returned to work and the commission began its inquiry. It took the testi- mony of 558 witnesses. The losses of the strike were esti- mated at $25,000,000 in wages, $1,800,000 in relief funds, $46,100,000 to the operators, and $28,000,000 in freight re- ceipts to transportation companies. The commission found the underlying cause of the strike to be the issue of recognition of the union. The award stated that the commission would recommend recognition of the union, were the anthracite unions separated from the bituminous unions, but that diffi- culties should be referred to a permanent joint committee of miners' and operators' representatives, with an umpire ap- pointed by the federal court, and that the life of the award should be till March, 1906. The commission further recom- mended a system of compulsory investigation. The agree- 1 United States Bureau of Labor, Bulletin No. 43, November, 1902, "Report to the President by the Commissioner of Labor"; Bulletin No. 46, May, 1903, "Report of the Anthracite Coal Strike Commission." COLLECTIVE BARGAINING 149 ment has been renewed, with modifications, and was still in force at the beginning of 1920. Much the best results of state or government intervention have been achieved through mediation. The government's war policy was expressly to resort to voluntary arbitration only after every effort at mediation had been made. The Railroad Administration, in particular, avoided arbitration, with satisfactory results. Only in extreme cases did the government use its sweeping war powers to enforce decisions, and experience has shown that -both employers and employees generally have been moderately well satisfied with voluntary procedure. Public investigation, up to the last few years, has seldom been used. On the whole, a good deal has been ac- complished in the promotion of industrial peace, the chief obstacle in the way of success having been a lack of confidence on the part of the disputants in the impartiality or ability of the state or government officials. The powers of compulsory investigation and publication of the recommendations with- out consent of the parties, adopted in nearly half the American laws, have seldom been resorted to. Legislation is still needed to extend the field of federal mediation, notably in reference to the railroad situation, but also with regard to disputes involving other agencies of inter- state commerce and disputes so comprehensive and vital in extent that existing state agencies are unable to meet the situation. The Secretary of Labor is empowered to intervene in such cases, but his intervention brings in the political and trade union partisanship which is objectionable to the usual parties to a dispute. Cooperation between federal and state agencies for the settlement of industrial disputes is also needed. There is a strong tendency among certain employers and political groups toward the Canadian plan of compulsory in- vestigation. But workers generally will not tolerate any abridgment of their right to strike. 3. COERCION BY GOVERNMENT (i) Restrictions on Strikes and Lockouts The preceding section has covered the mediatory measures which governments have adopted to diminish strikes and i 5 o PRINCIPLES OF LABOR LEGISLATION lockouts. Their essence, whether it be mediation, conciliation, or arbitration, is the voluntary acquiescence and participation of both the employer and the employees acting collectively. As long as arbitration is voluntary the bargaining power of neither party is affected. From the point of view of legislation the strike and lockout have two aspects. On one hand they create injury to the public. On the other hand, they are a part of the bargaining process by which wages are determined. To the public the effects of the strike and lockout are similar. Both cause sud- den stoppage of trade, failure to pay debts, expense of public relief, and sometimes disorder and famine prices. Hence legislation, springing simply from the needs of the public, treats the strike or the lockout as a public nuisance. But as methods of bargaining these two are not equivalent. To the employer the right to lock out is comparatively unim- portant. He may use it to discipline an unruly set of em- ployees, to discourage unionization in his factory, or to "get the start" of his men. But in the usual bargaining he has no need of it. He can keep his factory gates open even though, at the same time, he may be reducing wages or refusing de- mands for higher wages. He is nojt forced to lock out and he can force his employees to strike or submit. Legislation which prohibits or restricts the lockout does not greatly weaken the bargaining power of the employer. But to the employees there can be no collective bargaining without the right to strike. For a strike is nothing but the collective refusal of the terms of the employer. Legislation which restricts or prohibits strikes, restricts or prohibits col- lective bargaining itself. It leaves the employee a helpless individual in the face of an aggregation of capital, unless the same law which restricts or prohibits the collective bargaining provides an adequate substitute in its place. Consequently, as affecting the collective bargain, there are two essentials to an adequate measure of compulsory arbitra- tion. First, the power to restrict strikes and lockouts. This is directed primarily against the employees. Second, the power to enforce awards as to wages and conditions of labor while the plant is running. This is directed primarily against the employer. There necessarily goes with these two powers COLLECTIVE BARGAINING 151 the power of compulsory investigation where one of the parties is unwilling to submit to arbitration, but such power is but a means to an end of obtaining a just award and is as essential to a system of public information, like the Canadian industrial disputes investigation act of 1907, as to a system of coercion, like the Australian arbitration acts. It is the joint presence of these two essentials which makes the difference between compulsory arbitration and minimum wage boards on one hand, and compulsory arbitration and the Canadian dis- putes investigation act on the other hand. The wage board enforces a minimum award, but does not restrict the right to strike. 1 The Canadian act restricts the right to strike without notice, but grants no power to enforce an award. The degree of restriction upon the strike, as expressed in different laws, varies widely. Carried out in administra- tion it varies still more widely. In the Canadian disputes act and in the Colorado industrial commission act of 1915, only strikes without notice and hearing are unlawful. The same is true in the case of "unregistered" unions in New Zealand. On the other hand, all strikes by "registered" unions in that colony and strikes by anybody in most of the Australian states are unlawful. But because of administrative weak- ness, as will be shown, the actual coercion is very much less than is indicated on the face of these laws. Compulsory awards were first introduced in North America by the Kansas "court of industrial relations" law of i92o. 2 The acts of a dozen other states 3 and the Canadian industrial disputes investigation act contain provisions for enforcing awards which have first been voluntarily accepted by both parties. New Zealand goes a step further than this toward coercion, for there it is optional for either employers or em- ployees to register, but one of the parties registered can ap- peal for an award which will be enforced against both the parties. Finally, in Australia, and in Kansas under the law just mentioned, there is left no option to either employers or unions. 1 Except under special circumstances. 2 See p. 173. 3 See "Mediation by Government," p. 137. 1 52 PRINCIPLES OF LABOR LEGISLATION (2) Development of Coercive Intervention a. England. This development toward restriction of the right to strike and the substitution of wage awards is some- times treated as a step backward. This is entirely too simple a view. It is true that the freedom of the bargain has de- veloped from a former time of government coercion and now shows tendencies to go back under government coercion again. But the modern coercion is different from the old coercion, since the modern government derives its authority from a broader range of classes than those which controlled the older governments. In the England of the middle ages, at first, the lord of the manor and the town officials determined the wages. The national catastrophe of the Black Death in the fourteenth century caused Parliament to fix wages by law in certain occupations. This proved unwieldy and Parliament gave the right to declare wages to the local justices of the peace. This system was codified in the Elizabethan statute of apprentices, 1562. England therefore was under a local wage board system, but on this local wage board was no representative of labor. The wage determined was not the minimum wage, as at present, above which the employee cari bargain and below which the employer cannot bargain. It was a fixed wage. It was as unlawful for the employee to demand more as for the employer to offer less. It thus gave no freedom to either party for either individual or collective bargaining. In the seventeenth and eighteenth centuries England ceased to be an aggregation of local markets and became a national market. A local system of wage determination became ab- surd and fell into disuse. In spite of the protests of the in- cipient trade unions of the time, the employer was freed from the compulsory wage and obtained the right to bargain with the individual employee. On the other hand, at about the same time, the right of collective bargaining by employees was denied both by statutes and by judicial decisions. In 1720 Parliament began a series of acts against combinations of labor. In 1721 the court brought within the common-law doctrine of conspiracy a combination of laborers to raise their wages. This policy reached its culmination in the con- COLLECTIVE BARGAINING 153 spiracy acts of 1799 and iSoo. 1 But, beginning in 1824, when a strike to raise wages was partly legalized, the nineteenth century showed a continuous development in England of the right of collective bargaining. This formal right has been backed by unions which are both strong and reliable. The public has been saved much of the nuisance of the strike and lockout by a long series of voluntary trade agreements Yet, recently in several of the sweated industries and in coal min- ing 2 the government has formed minimum wage boards which both protect the workers against the individual bargain of the employer and give a basis for collective action by the em- ployees. Thus the twentieth century opens with a policy exactly opposite to that of the eighteenth century. Collec- tive bargaining is free, but individual bargaining, when likely to be oppressive to employees, is restricted. b. Australasia. In Australasia, 3 Canada, .and the United States there was much the same development as in England up to about 1890. Since 1890, however, there has been in Australasia a complete revolution in policy. In 1894 New Zealand passed its compulsory arbitration act. The next state to adopt compulsory arbitration was New South Wales in 1901. It was followed by Western Australia in 1902, by the Commonwealth itself in 1904, and by South Australia and Queensland in 1912. Meanwhile Victoria and Tasmania had adopted compulsory wage boards. In twenty years all of v - Australasia has adopted laws which are coercive either of the individual bargain, the collective bargain, or both. Even 1 See Bryan, Law of Conspiracy, 1909, for a general discussion of the subject. 2 See "The Minimum Wage," pp. 191, 192. 3 The material used in determining facts and conclusions regarding Australasia is mostly of a controversial nature. The wages boards of Australia have had a recent thorough and impartial treatment by Dr. Hammond (" Wages Boards in Australia," Quarterly Journal of Economics, Vol. XXIX, 1914, pp. 98-148, 326-361, 563-630). For the rest, the books on the subject are either too old (books age rapidly in regard to the Australasian labor situation) or too controversial, or if government publications, too colorless. The parliamentary debates which are given in full for the Commonwealth, Victoria, and New Zealand have been mainly relied upon. Three Australian labor papers have been consulted, but the anti-labor papers have been accessible only in the forms of clippings or quotations, of which the most valuable is the report of the American Trade Commission of the National Association of Manu- facturers (see Bibliography), i 5 4 PRINCIPLES OF LABOR LEGISLATION in the United States and Canada, through the Canadian act of 1907, the Colorado act of 1915, and the Kansas law of 1920, there has been reintroduced coercion against strikes or lock- outs in certain industries affected with a public interest. No single reason explains this new development. It rests in part on the comparative failure of collective bargaining to bring about collective agreements, in part on the broader democratic source from which modern governments derive their authority and which makes their coercion less oppressive to workmen, in part on the growing importance of industries affected with a public interest, and latterly, in part, on the de- mand of employers for protection against more powerful unions. The evolution of coercion in Australasia to an extent far greater than that of the United States is a normal result of a development, economic, social^and political, sharply in con- trast with ouTown. The public has been itself the largest em- ployer of labor through its government railroads and other public utilities. Private employers of labor, particularly indus- trial employers, have" been naej^|_small_carjital, employing few hands as compared with those in the United States. Appar- ently the capitalistic power which the Australasian labor leaders attack most bitterly is that of the shipper and the merchant. The position of the employer is somewhat similar to that in the United States in 1830. But the position of the employee has been sharply different. In 1830 in the United States the workingmen were striking for a ten-hour day. In Australasia, before compulsory arbitration had come into existence, the eight-hour day had become the general rule. But in America there is no standard. The hours range from eight to twelve, the 'days from five -and a half to seven a week, the pay from $2 to $6 a day in the same locality. The brick- layer gets from two to even four times as much as the hod- carrier, measured by the hour, and an even higher ratio in comparison with ordinary laborers. 1 In Australasia there is no such difference. The bricklayer gets but 20 per cent, to 50 per cent, more than the building laborer. 2 In the United 1 Great Britain, Board of Trade, Report on Cost of Living in American Towns, 1911, pp. 65, 107. 2 Australia, Commonwealth Bureau of Census and Statistics, Labor and Industrial Branch, Report, No. 2, 1913, "Trade Unionism, Unemploy- ment, Wages, Prices, and Cost of Living in Australia," p. 36. COLLECTIVE BARGAINING 155 States labor is divided both politically and industrially by the negro and the immigrant. During the last twenty years the bulk of our immigration has been from people receiving relatively low wages even for Europe. The immigration into Australasia has been comparatively light. It has almost all come from the British Isles, from a people receiving the highest wages in Europe. There have been no difficulties presented by con- flicting races and different languages. There has been no large body of disfranchised or unnaturalized laborers. The election laws have been continuously more favorable to labor than those of the United States. In New South Wales, for example, an immigrant from Great Britain can vote in one year, from any of the Australian states in three months. Pro- vision is made for absent voting. The entire labor force, not merely the skilled workmen, as in some of our Eastern and Southern states, can be mobilized at the polls. The power of labor at the polls was first shown during the very years when labor proved impotent in collective bar- gaining. From 1890 to 1893 labor was defeated in four dis- astrous strikes. In 1890 a maritime strike paralyzed the shipping of Australia and New Zealand. To an exporting people, like the Australasians, a maritime strike ties up busi- ness as completely as a railroad strike in the United States. In the midst of the strike the unions asked for arbitration. The employers refused and the unions were beaten. The next year there was a sheep-shearers' strike, mainly for the right of collective bargaining. There was great public disorder. The unions were defeated. In 1892 the miners at Broken Hill, New South Wales, before they struck, asked for volun- tary arbitration. This the employers refused and in the strike that followed the men were defeated. Another tur- bulent and disastrous sheep-shearers' strike marked the year that followed. During those same four years the number of parliamentary seats held by labor greatly increased. These were the events preceding 1894, when the first com- pulsory arbitration act was passed in New Zealand. Strikes had meant loss to the public and defeat to the employees. Voluntary arbitration had been refused by the employers. With a progressive Liberal Party dominant in New Zealand, with the Labor Party developing in Australia, the unions 156 PRINCIPLES OF LABOR LEGISLATION turned to government for coercive assistance in wage deter- mination. Unlike Australia, New Zealand has never had a large Labor Party, but a month after the defeat of the maritime strike a progressive Liberal Party came into power to hold office for the next twenty years. It was under this party that the first compulsory arbitration act was passed, as well as all the suc- ceeding acts and amendments up to the amendment of 1913. The first act had the support of the representatives of labor, but was opposed by the employers. New South Wales had passed a law for voluntary arbitration in 1892 and, in thQ next large strike which followed, the employers had refused to accept arbitration under the act. So at that period there was little to show that voluntary arbitration laws were of any use. It seemed that if strikes were to be diminished at all it must be by compulsion. The New Zealand act went into effect in 1895. Thence until 1906 there was a general period of prosperity, and what would probably have been a series of victorious strikes on a rising market became a no less victorious series of awards of the court of compulsory arbitration. Strikes were few and insignificant. With 1907 the prolonged period of prosperity ended. Thereafter the awards gave little or no increases of wages. There was a series of illegal strikes and a readjust- ment of the law in 1908. In 1913 and 1914 the law was put to a new trial. There was a spread of socialism and syndical- ism among the employees. A waterside strike occurred, ac- companied by many sympathetic strikes. The government's answer was to limit to narrower grounds the right to strike. Compulsory arbitration has now had twenty years of trial under conditions of ease and under conditions of stress. It started with a law which was just over the border-line of voluntary arbitration. With successive periods of strain the act has been strengthened until now it is clearly coercive. X The act as passed in 1894 provided for district boards of conciliation, 1 and one court of arbitration. The boards of conciliation were composed of an equal number of representa- tives of employees and employers. The representatives of 1 Seven were appointed. COLLECTIVE BARGAINING 157 both employers and employees were nominated by the regis- tered unions of employers and employees within the district. The court of arbitration consisted of one supreme court judge, assisted by one member nominated by the registered unions of employers and one member nominated by the registered unions of employees. Neither the boards of conciliation nor the court of arbitration was authorized to receive any de- mands except from unions registered under the act. A de- mand received from a registered union, either of employers or of employees, must first pass before a board of conciliation, but if the award was unsatisfactory to either party an appeal could be taken to the court of arbitration, whose award was binding. During the hearings and until the expiration of the award it was unlawful to strike or lock out. The experience of twenty years has not changed materially the court of arbitration, but the boards of conciliation have been transformed. They were always a cause of irritation and legislative tinkering, as they seem to have been from the beginning little more than boards of argumentation. Being appointed by districts rather than by trades, their members had no expert knowledge of the particular disputes brought before them. In the present law of compulsory arbi- tration, enacted in 1908, the machinery of the boards in the Canadian disputes act was applied. Commissioners of con- ciliation are appointed who receive appeals and who appoint advisers nominated by both parties, who must be men with practical experience in the trade concerned, either as em- ployers or employees. This system has proved to be more successful than the earlier system. As to strikes and lockouts, the first act, on the face of it, implied an equal restriction on employers and employees. But, as employers did not appeal to the court, and as the registration on each side was voluntary and could be with- drawn on short notice, the act meant for the employees vol- untary arbitration with an enforceable award. This worked smoothly up to 1906 while wages were rising and the coercion of the act was all upon the employer. But the illegal strikes of 1907-1908 caused Parliament to increase the penalties for strikes by a provision forattach- ment of wages, to levy comparatively heavy fines on unions 158 PRINCIPLES OF LABOR LEGISLATION whose members struck, and to penalize all strikes or lockouts, whether of registered unions or not, which were made without sufficient notice in public utilities and in certain industries, the steady continuance of which is affected with a public interest. This was adapted from the Canadian disputes investigation act of 1907. The waterside strike of 1913-1914 caused Parlia- ment to apply a somewhat similar provision to all strikes or lockouts in all industries. For unregistered unions the strike without due notice is not prohibited. For registered unions all strikes are prohibited. As far as one can judge l the enforcement of penalties for strikes and lockouts has been pursued coolly and persistently under a system of moderate fines. Half the strikes which have occurred are perfectly legal strikes strikes of unregistered unions but there have been a number of serious illegal strikes. The waterside strike of 1913-1914 started with unions which had a perfect right to strike and spread by sympathetic action to other unions registered under the award, which therefore had no right to strike. New Zealand has not achieved industrial peace. One might question whether a system in which it is illegal for some unions to strike and ' legal for others can ever be satisfactory. The act of 1894 in New Zealand recognized registered unions only. Neither the individual employer nor employee could appeal to its protection. This remains true for the employee under the latest amendment, but the individual employer now may register. Though the first act contained no reference to preference to unionists, this preference was granted in the awards as early as 1896 and was incorporated in the law of 1900. In the earlier awards preference to unionists simply meant that if there were a vacancy a union man must be given preference over a non-union man of similar ability. In the later awards preference to unionists has become equivalent to a closed shop, for an employer is ordered to discharge a non-union man in favor of an unemployed union man. Union preference is cus- tomarily granted where the union can show that it had a strong organization previous to the dispute. 1 Based almost entirely upon government reports and parliamentary debates. COLLECTIVE BARGAINING 159 With the right to strike taken away, the problem of pro- tecting labor leaders against victimization has consumed con- siderable attention both of the courts and of Parliament, without results satisfactory to the unions. Provisions in re- gard to victimization have repeatedly been changed. Some- times the burden of proof has been put upon the employer, sometimes upon the employee. Registered unions, therefore, have gained a preference which amounts almost to a closed shop and some protection against victimization, but at the expense of very large con- trol through court decisions. Initiation fees, membership fees, fines, procedure of unions, relations to other unions, 1 all have been brought either within the awards or within other court decisions. A recent decision which applies, however, to all unions, whether registered or not, declares that union funds may not be used for political purposes. 2 Thus the government makes politically innocuous the labor union which it encourages. It might be answered that a registered union is free to cancel its registration and thus to escape control by the government, if obnoxious. But both in the strikes of 1908 and in the strike of 1913-1914 the employers coerced the em- ployees into registering under the act by refusing to recognize any union which had not registered. This practical coercion, which seriously restricts the apparent voluntary character of the law on the side of unions, is at present the chief cause for complaint by labor leaders. Where arbitration is voluntary, the awards represent an adjustment only between the demands of the two parties and are based on their relative strength. With the element of coercion the third party, the public, enters to determine that the awards shall not be inconsistent with its notions of a proper standard of wages. As shown above, compulsory ar- bitration in New Zealand has been largely voluntary on the part of the employees. Decisions, therefore, have taken into account little more than the respective demands of the two parties. But in two respects there has been a change of policy. Union tactics and the early awards limited the proportion of 1 New Zealand, Journal of the Department of Labour, January, 1914, p. 3. 2 Parliamentary Debates, 4th Session, 1914, pp. 659-665. 160 PRINCIPLES OF LABOR LEGISLATION apprentices. The later awards generally specify no limit, but very sharply raise the wages of apprentices. The public pur- pose of open opportunity is thus subserved without being turned to the private end of the substitution of apprentices for journeymen. Again, the earlier acts allowed slow workers to receive less than the minimum wage only with the consent of the secretary or president of the union. This was changed in 1908 by allowing a state official to grant permits to slow workers. The law was originally passed by the Liberal Party, favored by the labor unions, but opposed by the employers. In the crisis of 1908 the Liberal Party revised the law against the opposition of a portion of the Reform Party (the chief opposi- tion party) and of the Labor Party. This revision the em- ployers favored. In the debates in Parliament the leader of the opposition (later the premier) declared himself against compulsory arbitration, but in favor of an act somewhat similar to the Canadian disputes act. During the strike of. 1913-1914 the Reform Party, later in power, declared in favor of compulsory arbitration and added to the law amendments which were distasteful to the Labor Party. At the present time (1920), however they differ in details, all parties in Parliament are committed to the principle of compulsory arbitration, the only opposition being from groups not yet represented in Parliament, like the Socialists and Syndicalists. New Zealand was not exempt from labor troubles during the war. Whereas the arbitration court made seventy-one awards for the year ending March, 1915, this figure was raised to 168 for the year ending March, 191 7. l It is reported that strikes during 1917-1918 were more than quadrupled over the preceding year, and at least twelve of these stoppages were serious in extent. 2 Nearly all strikes were among the un- registered unions. Observers of the situation point out that it is now the tendency for workers to demand direct negotia- tion and for employers to refer disagreement to the court. The fact that the court is finding it difficult to enforce penal- ties on the unions contributes to the dissatisfaction. By far the most cogent explanation of the sharp rise in the Zealand Official Year Book, 1915, p. 758; 1917, pp. 575-576. 2 Christian Science Monitor, September 16, 1919, p. 5. COLLECTIVE BARGAINING 161 number of labor disputes was the inability of the court to review wage awards to keep pace with increased costs of living. Parliament remedied the situation in 1918 by amending the act, granting the court power to reconsider awards where wages originally fixed had become inadequate owing to war prices. Despite legislative remedies of this comparatively minor character, union sentiment against the court is appar- ently on the increase, particularly among unregistered unions which object to the coercive efforts of the employers to bring them under the act. Turning from New Zealand to Australia, three chief facts appear in the history of coercive legislation: (i) The laws were enacted and administered in the presence of a large labor party; (2) two systems, compulsory arbitration and* wage boards, have grown up side by side, until, in several of the states, the two have merged; (3) Australia, as a federal com- monwealth, has had both federal and state courts of arbitra- tjpn. It has been one thing to enact and administer laws of compulsory arbitration in the presence of an insignificant labor party, as in New Zealand. It has been very different to do the same in Australia, where the Labor Party was first a large third party, later a large second party, and in September, 1915, was in control of the Commonwealth and the majority of the states. The period of the strikes 'of 1890-1893 was a period of ex- traordinary growth of a socialistic Labor Party. In 1890 there was but one labor member in all the legislatures of Australia. In 1893 there were eighty in the lower houses. 1 The members of the upper houses are elected or selected under restrictive conditions. This movement was a flash in the pan, but with the creation of the Commonwealth in 1899 a much more solid labor move- ment developed. There was a labor ministry for a few months in 1904, another labor ministry in 1910, just barely defeated by the popular vote of 1913. Again, during the European war, there was another appeal to the polls and, upsetting all precedents and marking the distinction between the Austra- lian labor movement and labor movements elsewhere, the 1 St. Ledger, Australian Socialism, 1909, p. 56. 11 162 PRINCIPLES OF LABOR LEGISLATION Labor Party was victorious in a campaign based on its record of adopting a universal military service act. Queensland, New South Wales, Western Australia, South Australia, and even conservative Tasmania also came under labor ministries. One large state, Victoria, remained anti-labor. With labor par- ties taking the labor vote, with anti-labor parties having but slight chance of any large labor vote, with organization of labor on the farms as well as in the workshops, Australia is divided politically between the employer and the employee. This means that any law affecting wage bargains is enacted or administered by a party which unequivocally represents one or the other side to the bargain. If a labor party is in control the compulsion of a compulsory arbitration law is not very real to the employee nor is it very real to the employer if an anti-labor party controls. The two Australian states with the largest population, Victoria and New South Wales, were the first to adopt coer- cive measures, but one adopted the wage board system, while the other adopted the compulsory arbitration system. In 1896 Victoria enacted the first of its wage-board laws. In 1901 New South Wales enacted its first law of compulsory arbitration. Here we may contrast the workings of the mini- mum wage boards and compulsory arbitration as compared with the theoretical differences between the two systems. In the early 'nineties there was a strong humanitarian move- ment in Victoria, increased by the report of the parliamentary board of 1893 on the existence of sweated labor in Melbourne. The minimum wage bill, as originally introduced, applied only to women and was intended solely for the benefit of those who were suffering under unfair wage conditions. The act as finally passed in 1896 applied to both sexes, but only to those industries particularly notorious for low wages. Each wage board consisted of a chairman and an equal number of repre- sentatives elected by the votes of all employees and of em- ployers. The employer had votes in proportion to his aver- age number of employees. The wage board fixed wages, hours, and certain other matters, but could not grant union preference. This method of election of representatives prac- tically created state unions of employees and employers. The method proved unsuccessful. The elected employees and COLLECTIVE BARGAINING 163 employers were too much committed to their electors. In the present system the employers and employees on the board are appointed, presumably from the more reputable employers and less militant employees. Decisions are based on what the more reputable employer pays and are designed to pro- tect him from unfair competition. In fact, it was stated in one of the laws, since amended, that wage-board decisions should conform to what was "paid by reputable employers to employees of average capacity." This has gradually brought employers to favor the law. The law also has usually been favored by the Labor Party. It does not take away the right to strike, but provides such a ready substitute that Victoria, more than any other of the Australian states, can claim to be a "country" almost "without strikes." The original wage boards were created in industries noto- rious for sweated labor and brought rapid improvement in the condition of workers. But wage boards have since greatly increased in number and have been extended to industries where wages are high and labor is organized. To mark the change of purpose in the creating of new wage boards it is sufficient to say that two of the new boards of 1912 were created against the protest of the labor members of Parlia- ment, one of them at the petition of the employers, and that another wage board was given authority only over men workers because the women petitioned not to be brought under it. The wage-board system of Victoria, therefore, has been extended beyond its original purpose and has become method of protecting reputable employers from unfair com- petition and insuring industrial peace by providing a ready means of adjustment of grievances. Turn now to the turbulent history of New South Wales. Before compulsory arbitration was adopted, New South Wales \vus much more subject than Victoria to serious strikes, and such it has remained. This one state furnishes more than half of the days lost by strikes in all of Australia. 1 Compulsory arbitration cannot be said to have increased such disputes, but simply not to have stopped them. After a futile volun- tary arbitration law of 1892, New South Wales passed its first 1 Australia, Commonwealth Bureau of Census, Labour Bulletin No. 4, February, 1914, p. 262. 1 64 PRINCIPLES OF LABOR LEGISLATION compulsory law in 1901. This act was especially important because on it was based the present Commonwealth act of 1904. Here was first introduced the unique feature later copied in the Commonwealth act, that the court itself must give its consent before any prosecution for a violation of the nature of a strike or lockout could be commenced. That consent was not frequently granted. For the rest, the act provided for a single court with final determinations on all matters within the scope of the act. Preference could be granted to unionists. The act expired in 1908. The single court had not disposed of the cases brought before it with sufficient rapidity. The anti-labor ministry in power at that time adopted a compre- hensive system of wage boards modeled after the Victorian system, whose determinations were subject to appeal to a special court of arbitration. All strikes were declared illegal. A system of fines was adopted to reach the union funds. Strikes, almost of the character of rebellion, followed, and the next year the same ministry rushed through a bill ap- plicable to strikes in certain necessary industries, like coal mining. These provided a penalty of not exceeding twelve months' imprisonment for instigating strikes and the same length of time for mere participation in a strike meeting. Immediately there followed a strike of all the coal miners in New South Wales. The situation became intolerable and the Labor Party came back to power. A new act was passed in 1912. The severe penalties were withdrawn and special con- ciliation boards were created for mine workers. But neither under anti-labor ministries nor under the present labor ministry is New South Wales industrially quiet. Frantic assertion of authority has been followed by flabbiness in the administration of the law. This has resulted in a series of headless strikes. 1 The officials of the union, who might be prosecuted, make a show of dissuading the men, and the men strike with neither political nor economic consequences, as the government will not prosecute the rank and file, and the employer is bound by the awards. Practically the com- 1 Based on the report of the American Trade Commission of the National Association of Manufacturers and the Australian Worker , Sydney. COLLECTIVE BARGAINING 165 pulsory arbitration system of New South Wales has become an imperfect wage-board system. Among the other states, Western Australia copied the New Zealand model in its first law of 1902. But, as in New Zea- land, the district conciliation boards proved a failure. In the laws of 1912 they were abolished, and now the court may ap- point advisers or " assessors " to assist it. Interestingly enough, union preference, provided in the earlier law, disappears from the later one in spite of the fact that the new law was passed by a labor ministry. Reports of the actual working of the law are contradictory. The two other states, Queensland and South Australia, passed their first law in 1912, in both cases by the anti-labor party. The Queensland law was the result of a street-car strike. The South Australian law is noteworthy for its severe and elaborate penalties for acts connected with strikes, such as picketing. These systems have been in exist- ence too short a time to show their actual working. Among the provisions of the new Commonwealth constitu- tion of Australia, adopted in 1899, was the right to create a compulsory arbitration court for interstate disputes. This right was made substantial in 1904 by the passage of the industrial arbitration act. The law was modeled on the 1901 act of New South Wales. There was no system of wage boards, but simply a single court of arbitration with its presi- dent the sole member. This court not only hears appeals, but can on its own initiative summon parties. Its determina- tions are final, but it "may" state a case to the high court (the supreme court of the Commonwealth) for advice. As in the New South Wales law, no prosecution can be started against any one for a strike or a lockout without the consent of the court. Since this consent has never been given in the case of a strike the law is scarcely more than a minimum wage law. The scope of its power in relation to the state courts is, for us, the most interesting question. The law gives to the court power over "disputes extending beyond the limits of any one state" except in regard to disputes in agricultural indus- tries. Subsequent acts have attempted to enlarge its scope, but have been declared unconstitutional, and when Justice Higgins, the president, has submitted a case to the high court, 166 PRINCIPLES OP LABOR LEGISLATION the rulings of the court have usually been restrictive against the Commonwealth. Uncertainty has remained as to what is a "dispute" and what is really meant by "extending be- yond the limits of one state." It is obvious that if a request for a change of wages paid by two different employers in two different states constitutes a "dispute extending beyond the limits of one state" the Commonwealth court can strip the - state courts of any real power. Already the court has deter- mined wages on the local tramways from Perth on the west coast to Brisbane on the east coast. A curious distinction has been made by the high court, by which wage-board decisions of Victoria are considered part of the Victorian law and have restrictive power over rulings by the Commonwealth Court of Arbitration, where applied within that state, while the awards of arbitration courts of the several states are not regarded as law and have no restrictive power. This led in 1912 to the employers of Victoria petition- ing that the building trade laborers of that state be brought under a state wage board, as the latter were seeking, with the building laborers of other states, to come under the Common- wealth Court of Arbitration. The Labor Party stands com- mitted to the abolition of state courts of arbitration, their place to be taken by district courts under the authority of the Commonwealth . Unlike New Zealand, there can be no legal strike in Aus- tralia outside of Tasmania and Victoria, since the compulsory arbitration laws have "blanket" provisions against strikes and lockouts. But, with governments either purely labor or purely anti-labor, the administration of these laws seems to have been, at least in New South Wales, either absurdly flabby or absurdly frantic. Instead of the government acting as a judge it becomes a plaintiff or defendant determining the ad- ministration of law. More Commonwealth ministries have been wrecked on both sides of the question of "Union preference" than on any other question. Union preference, which is used as a harmless bait in New Zealand to bring labor unions under the act, becomes a grave political question in the states and in the Common- wealth, where the vote of labor and its opponent is very close. New South Wales has adopted union preference in its com- COLLECTIVE BARGAINING 167 pulsory arbitration acts. Rather curiously, Western Australia, with the strongest labor party of all the states, repealed, in 1912, the provisions regarding union preference which had existed in the act of 1902. The Commonwealth court has had the right to grant union preference, but Justice Higgins, al- though once a member of a labor ministry, grants union prefer- ence, not as in New Zealand in cases where there is a strong union, but only in cases where a union has been oppressed. In most of the states decisions are based on existing strength of the parties, and are similar, therefore, to decisions in a court of voluntary arbitration. But Justice Higgins of the Com- monwealth court has chosen for his minimum for the lowest paid laborers not the customary wage, nor a wage based on the strength of the union, but a wage based on a standard of living. This was most sharply shown in the decision in 1914 in the case of the dock laborers, where probable annual earn- ings, taking into account fluctuations of employment, were taken as the basis for an hourly wage. 1 -We have thus trav- eled far from voluntary arbitration or strikes, with wages de- termined by the strength of the two parties, far from minimum wages based on what the more reputable employers pay, to a determination of wages on a consumers' standard of living. JX. The recent history of the Commonwealth Court of Arbitra- tion has been marked by more explicit definition of its powers and the establishment of precedents. Two amendments to the Commonwealth act were made in 1915 and 1918. The earlier amendment enabled a justice of the high court to decide finally whether a dispute extended beyond the limits of any one state, which was the chief limitation of the powers of the court of arbitration. The court affirmed the right of free bargaining in the case of workers refusing to accept hire at the minimum wage, when they believed their skill rated a higher wage. In the consideration of minimum wage princi- ples during the war, the court continued its policy of basing the minimum on a standard of living. The tendency, how- ever, was to make the wages of the skilled and unskilled workers meet; the basic wage was increased, but the second- ary wage was increased only by the pre-war margin between 1 New Statesman, June 6, 1914, p. 262. 1 68 PRINCIPLES OF LABOR LEGISLATION the two scales, not proportionally. One of the most fruitful features of the court's power is its right to appoint "boards of reference," by means of which the meeting of representa- tives of unions with employers is encouraged. Of late these "boards of reference" have tended to develop along the lines of the Whitley suggestions in Great Britain. During the past three years there have been but four strikes without previous reference to the court. The miners' strike of October, 1916, was mainly political in its aspects, and could not be attributed to either the success or the failure of the act. However, in June, 1917, the glass-bottle makers struck without reference to the court, and only by the power of the court to call a compulsory conference were the unions penal- ized and the men forced back to work on the employers' terms. In the sympathetic strike of waterside workers in August, 1917, the court was powerless to act, inasmuch as the stoppage was not in direct violation of the terms of its award. The prime minister sought to cancel the registration of the union with the court, hoping thereby to kill the award under which it was working. The principle involved was whether the court had jurisdiction over a sympathetic strike extending beyond the limits of any one state. The settlement finally made by mediation of Justice Higgins with union leaders denied the court's jurisdiction over sympathetic strikes. 1 A recrudes- cence of this strike occurred in September, 1919. The union apparently harbored its grievance against the government for high-handed action in the previous dispute, and added to this grudge some of the "direct action" principles of syndicalists. The union announced its strike to the court twenty-four hours beforehand, but in attempts at settlement of wage demands the court twice used the compulsory conference method with- out success. At the end of 1919 the ultimate outcome was still in doubt; but the instance indicates that labor's opinion of the court is not unanimously favorable, nor is the court's compulsory power always effective in serious disputes. c. Canada and the United States. In Canada and the United States we again contrast the situation of the classes. Australia is ruled by a labor party. Labor in the United States has never 1 H. B. Higgins, "A New Province for Law and Order," Harvard Law Review, January, 1919, pp. 189-217. COLLECTIVE BARGAINING 169 been a chief minority party. Where it has been a straight conflict between labor on one side and the other elements of society on the other side, labor has been defeated at the polls. Again, in regard to unionization, the unskilled and semi-skilled are unionized in but a few industries. Organized labor is, for the most part, organized skilled labor. Such labor is strong at industrial bargaining; it is weak only at the polls. It is therefore no blindness, but wise calculation, which has set the leaders of organized labor against government interference in industrial disputes. They could not count on controlling government, and they cannot predict what standard the gov- ernment would use in its awards. Unions which have gained for their members the more desirable conditions of labor are not willing to risk what they have gained for a doubtful stand- ard imposed by the outside public which might take into account the average and not the exceptional condition of labor. The employers, also, are afraid of compulsory arbitration. -. Through their voting rights alone they have even less power at the polls than the skilled workmen. Only by other means and by the aid of other classes can they control politics. There is but one class which would be likely to gain by en- forcing higher standards. It is the immense but miscellane- ous class of unskilled and semi-skilled men, and of women and children. They have no voice to make their wishes known. Against the joint opposition of organized labor and capital, compulsory arbitration makes little headway in the legisla- tures, in spite of the agitation that follows every great strike. Only occasionally has it come within the zone of practical politics. Once was when the anthracite coal strike of 1902 put the voluntary system to a considerable strain. Arbitra- tion was accepted by the employers only after pressure was put upon them by the President of the United States. A second time was in 1920, when the Kansas agrarian legisla- ture, at a special session called for the purpose, adopted the first real compulsory arbitration law in the United States. In the report on the arbitration award governing the de- mands of the eastern locomotive engineers in 1912, the chair- man, representing the public, advocated a permanent wage commission and added : ' ' Is it unreasonable to ask that men 1 70 PRINCIPLES OF LABOR LEGISLATION in the service of public utilities shall partially surrender their liberty in the matter of quitting employment, so that the nation as a whole may not suffer disproportionately? " x The sharpest criticism of this doctrine came from the minority report representing the engineers: "To insure the permanent industrial peace so much desired will require a broader states- manship than that which will shackle the rights of a large group of our citizens." 2 When the western railroad arbitra- tion of 1915 resulted unsatisfactorily to the brotherhoods the minority, representing them, protested that "no act by a governmental tribunal could more keenly bring home to the wage-earners of this country the consideration they might ex- pect if boards under governmental supervision and control were to review and adjust their wages and working conditions on that basis." And so the matter in the main stands: the employers are dissatisfied with what they consider one-sided compulsory arbitration, the employees attack any greater measure of coercion. One of the objections frequently raised against compulsory arbitration is its unconstitutionality in violation of the thir- teenth amendment, in that it imposes involuntary servitude other than punishment for crime. This objection is probably not sound. We have already seen 3 that quitting work col- lectively in pursuance of an unlawful agreement contains the element of conspiracy which makes a strike essentially differ- ent from the ordinary quitting of work. Such a concerted agreement may be enjoined and punished as contempt, and there are sufficient precedents in the decisions to warrant the constitutionality of imposing penalties, should a compulsory arbitration law be shrewdly drafted and popularly supported. It is not enough to raise the objection of constitutionality, for constitutions change with interpretation. The lasting ob- jections must be found elsewhere. While the United States has not gone very far with com- pulsory arbitration, and Canada has not adopted it at all, 1 Report of the Board of Arbitration in the Matter of the Controversy be- tween the Eastern Railroads and the Brotherhood of Locomotive Engineers, 1912, p. 107. 2 Ibid., p. 123. 3 See "The Law of Conspiracy," pp. 101-104. COLLECTIVE BARGAINING 171 both countries have for several years maintained coercive features at three different steps in the procedure of govern- mental arbitration. These are compulsory investigation, the enforcement of awards which have been accepted by both parties, and the prohibition of sudden change of terms or sudden strikes or lockouts. The first is for the sake of official and public information. Directly it can have no effect on the bargaining rights and the bargaining tactics of the two parties. It is embodied in some of the state laws of voluntary arbitration and was a part of the federal act of I888. 1 But when it was proposed in the Townsend bill in 1904 to give that power again to a commission appointed by the President, the bill was defeated, for at the hearing appeared against it the representatives of the Ameri- can Federation of Labor, the railroad brotherhoods, and the American Anti-boycott Association. In the Canadian industrial disputes investigation act col- lective bargaining itself was for the first time in North America made subject to the coercion of government. That act makes a sudden change of terms and a strike or lockout without sufficient notice unlawful in a certain class of industries affected with a public interest. The industries are public utilities and mines. In 1906, the year before its passage, there had been a prolonged strike in the Alberta coal mines which threatened a coal famine. The act makes it unlawful in such industries to change the terms of employment without thirty days' notice, and requires that, if within that time appeal is taken to the minister of labor, the terms of employ- ment shall remain the same pending an investigation. It is likewise unlawful to strike or lock out until after a hearing and findings by the investigating board. Then either a change of terms, or a strike, or a lockout is perfectly lawful. The act is coercive only against the sudden strike and the sudden change of terms. Upon application the minister of labor ap- points a board to which the employees nominate one man, the employers another, and the two men nominate the chair- man. In case of failure to nominate the minister does the selecting. 1 See "Mediation by Government," pp. 137, 138. 172 PRINCIPLES OF LABOR LEGISLATION The success of the law seems attributable largely to the conciliatory efforts of the department of labor, to dislike for publicity rather than fear of penalty, and to the "existence of a means of negotiation rather than a means of restriction." From the inception of the act to December, 1916, there were 204 illegal strikes or lockouts, two of them lockouts. One hundred and seventy-eight of these stoppages occurred without either party seeking the aid of. the act. An ille- gal strike or lockout under the law is action taken be- fore reporting the dispute to the board, or before 'the investigation and report of a legally constituted board. There have been only eleven prosecutions, with aggregate fines of $i,66o. 1 The employers favor the law. As to the employees, the miners are hostile, the railroad men generally favor it. Other classes of labor are mild in their attitude. The Canadian disputes act instantly appealed to the public or to the employers of other lands. Part of its machinery was adopted the following year (1908) in New Zealand. An act somewhat similar was passed in the Transvaal in 1909. Bills based on its principles were introduced into the legisla- tures of New York, Wisconsin, and California, but it was not until the upheaval in Colorado in 1914-1915 that a law was actually passed in the United States embodying restrictions on change of terms of employment and on strikes and lockouts. The law of 191 5 2 gives to the Industrial Commission of Colorado, among its other powers, the power to compel a hearing in the case of an industrial dispute, and to deliver an award, which, like those under the Canadian act, is not mandatory. As in the Canadian act, change of terms of em- ployment, strikes, and lockouts are prohibited until after thirty days' notice and until after a hearing and award if such hear- ing is started within the time of notice. Going beyond the Canadian act, which is limited to public utilities and mines, the Colorado law covers all employees except those in domestic service, in agriculture, and in establishments em- 1 United States Department of Labor, Monthly Labor Review, Septem- ber, 1917, pp. i-n. 2 Colorado, Laws 1915, C. 180, COLLECTIVE BARGAINING 173 ploying less than four hands. The law was first invoked l when a large cracker company announced a decrease of wages to take effect the following week. Some of the employees struck and the commission ordered the employers to submit their proposed reduction to the commission and the employees to resume work. Both sides obeyed. 2 ''No longer is a strike a private affair," was the editorial comment in a prominent Denver paper'. 3 Continued experience under the law causes the industrial commission to report that it has amply accom- plished the purpose for which it was enacted. The provision requiring thirty days' notice before a change in terms of em- ployment, "against which violent criticism has been directed, has saved the situation innumerable times." 4 During the year and a half ending with October, 1918, a total of 196 cases were recorded by the commission, which states that "there were not over half a dozen controversies or strikes occurring in this state since this commission has been in office which are not included" in this list. In connection with 145 of the 196 cases reported on, the statutory thirty-day notice was given; only nine strikes occurred without such notice. Fifty- eight disputes were settled by an award of the commission or after conference with it, and seventy-eight by the employ- ers and employees concerned, in many of which cases the joint conferences were suggested or directed by the commis- sion. In five cases commission awards were accepted by the employers but rejected by the men. The Kansas law of 1920 establishing compulsory arbitra- tion creates a " court of industrial relations," composed of three judges appointed by the governor for three-year terms. The manufacture of food products, the manufacture of "cloth- ing and all manner of wearing apparel in common use by the people," the mining or production of fuel, "the transportation of all food products and articles or substances entering into wearing apparel or fuel," and all public utilities and common carriers as defined under the general statutes of Kansas, are declared to be affected with a public interest and therefore subject to supervision by the state "for the purpose of pre- 1 August, 1915. 2 Rocky Mountain News, August 10, 1915. 3 Ibid., August 11, 1915. 4 Industrial Commission of Colorado, Second Report, 1918, p. 99. i 7 4 PRINCIPLES OF LABOR LEGISLATION serving the public peace, protecting the public health, pre- venting industrial strife, disorder and waste, and securing regular and orderly conduct of the business directly affecting the living conditions of the people." In case of a serious controversy in any of the industries covered, the court of industrial relations is authorized on its own motion, or on complaint of any ten tax-paying citizens in the locality, to ' summon the parties before it and to investigate the conditions of the industry. The findings of the court are to state "specifically the terms and conditions upon which said in- dustry . . . should be thereafter conducted." The court is to "order such changes, if any, as are necessary to be made in and about the conduct of said industry ... in the matter of working and living conditions, hours of labor, rules and prac- > tices, and a reasonable minimum wage or standard of wages." The standards set up, however, must be "such as to enable such industries ... to produce or transport their products on continue their operations and thus to promote the general welfare." The court is empowered to bring suit in the supreme court of the state to compel compliance with any 'of its orders. On the other hand, either party to a contro- versy which feels aggrieved at an order may sue within ten days to compel the court of industrial relations to issue a reasonable order. The right of collective bargaining is ex- pressly recognized, but strikes, picketing, boycotting, and > similar acts to enforce labor's claims are forbidden. On the other hand, the discharge of employees for bringing contro- versies to the attention of the court, or for testifying before it, is prohibited, and the right of workmen to -quit their em- ployment individually is not restricted. In case of actual suspension or limitation of operation in any industry covered .by the^tct, the court may take it over and operate it during the emergency. Employers and workmen in industries to which the act does not apply may voluntarily submit their disputes to the court. To give the justices of the court con- tinuous first-hand acquaintance with the conditions of life and labor, they are authorized to make studies of industrial matters either within the state or elsewhere. Soon after the enactment of this measure in Kansas, efforts to secure similar legislation were begun in several other states. COLLECTIVE BARGAINING 175 4. UNIONS OF GOVERNMENT EMPLOYEES With the broadening scope of the state as an industrial employer, the collective bargain is, in some cases, entered upon even by the government with its employees. Here it presents a peculiar problem. The state 1 employs permanently larger bodies of workers than any other single employer. 2 It is not subject to the competition that limits the private employer in his bargain with labor, and it is the medium through which the employee with the suffrage becomes in a measure his own employer. In such states as allow practically universal suf- frage it then seems less necessary for the public employee to use the weapon of strike or boycott employed by the private worker in his struggle for better wages and working conditions. (i) Recognition of Unions The right of the public employee to strike is not conceded by government, although in many countries the right of gov- ernment workers to organize is not denied them. Russia, under the old regime, 3 Turkey, 4 and Roumania 5 forbade con- certed action on the part of government employees under penalty, and even in republican France public strikes are forbidden and punished, 6 while the right of public employees to organize is at least doubtful and certainly restricted. 7 Even in the United Kingdom, in Australasia and the United States, 1 Meaning the governmental unit, national, state, or municipal. 2 The United States government on June 30, 1914, had in its employ 482,721 persons (United States Civil Service Commission, Report, 1915, p. 6), approximately the same number as employed in the entire iron.and steel industry in the United States. To this number should be added the employees of state and local governments. 3 Imperial ukase of December, 1905 (Bulletin of the International Labor Office, Vol. I, 1906, p. 51). 4 Act of November 6, 1908 (Ibid., Vol. Ill, 1908, p. 331). 6 Decree of December 19, 1909 ({bid., Vol. V, 1910, p. 437). 6 Order of March 18, 1909, relating to the organization of disciplinary committees of the outdoor staffs of the postal and telegraph service, providing penalties for ''collective or concerted refusal" on the part of the staff. (Ibid., Vol. IV, 1909, p. 293.) 7 The minister of public education maintained in 1912 that under the law of 1884, which gave legal standing to labor unions, syndicates of teachers were not recognized, and such a syndicate was dissolved by the French government. See American Federationist, February, 1913, p. 136. i 7 6 PRINCIPLES OF LABOR LEGISLATION where government employees are nominally allowed to com- bine, trade unionism among public employees is not freely tolerated, there being still a general sentiment that opposition of public employees to the government savors strongly of insubordination and unpatriotism. 1 This feeling became very manifest in the summer of 1919, when efforts of the police and fire departments to organize in several American cities were met by the almost unanimous opposition of the authori- ties. In Boston the discharge of several policemen for join- ing a union affiliated with the American Federation of Labor led to a strike in which the men were finally defeated and a new force was organized. About the same time, after police strikes in London and other centers, the British Parliament amended its police law to prohibit constables in England and Wales from joining or remaining members of any trade union intended to "influence the pay, pensions, or conditions of service of any police force." 2 Canada also, by a cabinet order, prohibited government emplo}^ees from joining labor unions. The opposition to organization among civil employ- ees is especially strong in France, where unionism has come to be regarded as a real danger, due largely to the great postal and railway strikes. 3 At the same time the feeling of the em- ployees, as expressed in the international conference of public employees (Augus^, 1907), is that the employee, even on public works, has a right to organize and strike as a means of obtain- ing desired concessions as to conditions of employment. 4 In the United States, in 1902, the President by executive order, amended in 1906, forbade all government employees directly or indirectly to solicit an increase of pay or to influence legis- lation in their behalf, save through the heads of departments in which they served. The protest of the unions 5 led to the act of 1912, adopted as a rider to the Post Office appropriation 1 New Statesman, May 8, 1915, special supplement on "State and Municipal Enterprise," p. 22. 2 9 and 10 George 5, C. 46 (1919). 3 An account of the postal strike and its cause may be found in J. H. Harley, New Social Democracy, 1911, pp. 122-143. Also see Graham Tay- lor, " Unionizing Government Employees," The Survey, May 8, 1909, p. 226. 4 United States Department of Labor, Bulletin No. 88, May.igio, p. 867. 6 See American Federationist, January, 1915, p. 28; also January, 1912, p. 36; January, 1914, p. 51. COLLECTIVE BARGAINING 177 act, 1 which permits post office employees to petition Congress, but forbids them to affiliate with any outside organization which imposes upon them an obligation to strike, or purposes to assist them in any strike against the government. 2 The executive order applies only to the activities of unions of pub- lic employees influencing Congress. It does not prevent or- ganizations within the department nor collective bargaining with the department. Such collective bargaining exists in a crude form in departments requiring skilled labor, and, in the case of the War Department, a complete scheme of arbitration has been worked out for the arsenal at Watertown, Mass., for all mechanical employees. This provides for a mediation board of an equal number of members elected by the employees and officers appointed by the commanding officer. There is a supreme mediation board at Washington, including repre- sentatives of the national unions to which the arsenal workers belong, and officers appointed by the Chief of Ordnance. Appeal lies to the Secretary of War. 3 A similar arrangement had been worked out in the street-cleaning department of New York in i8g6. 4 A further development in the direction of employees' representation in the administration of govern- ment enterprises was introduced toward the end of 1918 in the federal arsenal at Rock Island, 111. The men selected an advisory committee to cooperate with the War Department, were allowed to choose their own foremen, and had a voice in fixing piece-work prices. The experiment resulted, according to an official statement, in reduced expenses, increased pro- duction, and the development of a spirit of hearty cooperation among the workers. 5 Other governments have found it necessary to adopt forms of collective bargaining with employees. In New Zealand the act of 1908 6 provides that any society of railway employees may register and become officially recognized by the govern- 1 Congressional Record, Vol. XL VIII, 1912, p. 11819. 2 United States, Laws 1912, C. 389, Sec. 6. 3 See O. O. 10225-582, "Instructions in regard to Hearings of Griev- ances, issued January 9, 1915, by the Chief of Ordnance to the Com- manding Officer, Watertown Arsenal." 4 See Commons, Labor and Administration, 1913, pp. 108-113. 6 John A. Fitch, "Manufacturing for Their Government," The Survey, September 13, 1919, pp. 846-847. 6 Bulletin of the International Labor Office, Vol. Ill, 1908, p. 312, 178 PRINCIPLES OF LABOR LEGISLATION ment. It may then enter into an ' ' industrial agreement ' ' with the minister of railways and, by registration, the articles of agreement are brought under government enforcement. Any appeal goes before the court of arbitration, consisting of a judge and representatives of the government and employees. After a hearing the award takes the form of a new compulsory agreement or an enforcement of the old. There are appeal boards for postal and telegraph employees, 1 tramway em- ployees, 2 and public-school teachers; and any ten or more teachers may organize a society, which, like the railway or- ganization, registers and has corporate existence. 3 The French plan for railway administration does not recog- nize an employees' union as such, but goes farther than the New Zealand scheme in arranging for cooperation between government and employees. Officials and workers are repre- sented on the various committees by their chosen delegates. Thus, in the councils and grades committee they help prepare reports and lists of premiums and promotions. As delegates they are part of the council of inquiry whose duty it is to express an opinion on all important questions of discipline submitted by the general manager. 4 In addition there are the representative district councils, which act as buffers be- tween the railway administration and the employees, make explanations, and administer necessary reprimands. Officials no longer reprimand workmen. Above the district councils is the Conseil de Reseau,' the supreme advisory board of the whole state railway system. Of the twenty-one members appointed by the minister of public works, four are working employees. 6 In the Prussian railway system, autocratic as it is, there l Act of October 24, 1894. New Zealand Statutes, 1894, post and telegraph department act. 2 An act to amend the tramways act, 1908, New Zealand Statutes, 1910, p. 370. 3 Act of October 31, 1895, New Zealand Statutes, 1895. School teachers in the United States have also organized and affiliated with a central federation. (American Federationist, January, 1903, p. 15.) 4 Report of State Railways Administration for 1909. (New Statesman, May 8, 1915, special supplement on "State and Municipal Enterprise," P- 25.) 6 Instituted by ministerial decree September 24, 1911. (Ibid., p. 25.) 6 New Statesman, May 8, 1915, special supplement p. 25, from Emil Davies, The Collectivist State in the Making, 1914. COLLECTIVE BARGAINING 179 have been since 1892 a series of advisory committees appointed by the minister of public works, whose express mission it is to smooth the working of the system by advising on all pos- sible points of friction between management and operatives. 1 In the Swiss administration it is said to be an invariable cus- tom for the general secretary of the railwaymen's trade union to be appointed a full member of the board of administration, the supreme governing authority of the railway system. 2 The foregoing are instances of formal agreements sanctioned by law or established by administrative order. Far more ex- tensive than these formal agreements is the unofficial recog- nition of unions, especially in England and the United States, where the head of the department deals with the representa- tives of the union and then issues orders conforming to the agreement but not mentioning the union. In this respect the collective bargain is similar to that of certain large railway sys- tems in the United States which nominally do not recognize the railroad brotherhoods, but actually issue orders, through the gen- eral manager, to which the unions have previously consented. The advantage to government of formal recognition of unions consists in establishing permanent boards 'of arbitra- tion through which all grievances take their regular course. Without such boards the Unions, through political influence, go over the heads of the departments to the legislative branch of government. This is proper enough, and, indeed, is inev- itable under universal suffrage, no matter what restrictions the administration attempts to place upon them. But, with permanent boards of arbitration, practically all grievances and demands of the union can be settled within the department, leaving to the legislature (municipal, state, or federal) only the general policy of establishing standards of hours and wages 3 to be enforced through the arbitration boards. Outside the compulsory systems of Australasia, the final appeal from arbitration boards lies with the head of the department. In the war department it is the secretary of war. In the street-cleaning department it is the commissioner. 1 New Statesman, May 8, 1915, special supplement, p. 25. See also E. S. Bradford, "Prussian Railway Administration," Annals of the American Academy, Vol. XXIX, 1907, p. 310. 2 New Statesman, May 8, 1915, special supplement, p. 25. 3 See "The Minimum Wage," p. 198; "Hours of Labor," pp. 285, 286. i8o PRINCIPLES OF LABOR LEGISLATION This is essential in any voluntary system of arbitration in public employment. The unions retain the right to strike if they are not satisfied with the arbitration, and therefore the head of the department must finally decide as against a strike, in case arbitration fails. Another distinction between unions of public employees and those that deal with private employers is the attitude toward the closed shop. Government cannot discriminate between citizens, as can private employers, and must maintain the open shop. 1 But, since government is not forced by com- petition to cut wages or lengthen hours, the unions do not need the protection which the closed shop gives them. Yet, under the compulsory systems of New Zealand and New South Wales, a preferential union shop is maintained, which ap- proaches the closed shop. 2 In the United States there is a semblance of union prefer- ence in the statutory requirements of four states 3 to the effect that the label of the typographical union be affixed to all public printing. However, in Maryland this law seems to have been disregarded, 4 while in the other states there have been no court decisions supporting the law, although it has been observed. In at least eight other states there have been court decisions adverse to discrimination in favor of organized labor, in regard to either employment on public works or the use of the union label on public printing, 5 on the ground that the re- striction of employment thus imposed is unconstitutional. 1 See decisions below. 2 New Zealand, act of 1908, Bulletin of the International Labor Office, Vol. Ill, 1908, p. 312. New South Wales, industrial arbitration act, Acts of Parliament, 1911-1912, No. 17. 3 Maryland, Public General Laws 1911, Art. 78, Sec. 9; see also Laws 1910, C. 698, Art. 78; Montana, Revised Code 1907, Sec. 254; Nevada, Revised Laws 1912, Sec. 4309; North Dakota, Laws 1919, C. 173. 4 Reports of state officials do not carry the label. 6 Illinois: Adams v. Brenan, 177 111. 194, 52 N. E. 314 (1898) ; Holden v. Alton, 179 111. 318, 53 N. E. 556 (1899); Fiske v. People, 188 111. 206, 58 N. E. 985 (1900). Iowa: Miller v. City of Des Moines, 143 la. 409, 122 N. W. 226 (1900). Tennessee: Marshal & Bruce Company v. Nashville, 109 Tenn. 495 (1902). Michigan: Lewis v. Detroit Board of Education, 139 Mich. 306 (1905). Georgia: Atlanta v. Stein, in Ga. 789, 36 S. E. 932 (1900). Nebraska: Wright v. Hoctor, 95 Xeb. 342, 145 N. W. 704 (1914). Alabama: Inge v. Board of Public Works, 135 Ala. 187 (1902). Ohio: Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197 (1902). COLLECTIVE BARGAINING 181 (2) Cooperative Employment An official recognition of organizations of public employees is found in the cooperative employment system. There are two principal methods, the first of which is the cooperative day-labor system, as applied in New Zealand. 1 This is a time and piece work system under which men out of employment arrange themselves in small groups, averaging about fourteen (the groups were at first, and occasionally still are, larger), select one or two "headmen," and enter into contracts with the government for sections of public work at "schedule rates" based on the estimates of government engineers in charge of the work. The plan seems to have worked well in New Zealand, but not so well in New South Wales, where it has been confined to the lowest and least efficient stratum of workers. Under the plan the government is responsible for the checking up and actual direction of the work. Evidently the group is not a real labor union. The second form is found principally in France and Italy, 2 where workmen organize their own groups and, as such, con- tract for government work. The group constitutes, therefore, not a labor union, but a union of labor contractors. The officials of the government are not in charge of the work, but they turn it over to the groups, the plan being a modifica- tion of the competitive contract system rather than a variety of direct employment. The government authorities favor these societies in the placing of contracts, and the result has been a steady and appreciable growth in their number and undertakings. 1 Great Britain, Board of Trade, Labour Department, Report on Co- operative Contracts Given out by Public Authorities to Associations of Work- men, Parliamentary Papers, Vol. LXXX, 1896. 2 Victor von Borosini, "The Italian Triple Alliance of Labor," Ameri- can Journal of Sociology, Vol. XIX, 1913-1914, p. 204 ff. CHAPTER IV THE MINIMUM WAGE Minimum wage legislation marks a new stage in the long line of attempts to equalize the power of employer and em- ployee in making the wage bargain. In contrast with con- ciliation and arbitration, either voluntary or compulsory, which take place only after a demand has been made by one party and refused by the other, minimum wage laws seek to regulate the wage rate before any dispute over the terms of the wage bargain has arisen. Moreover, interference by the state between the parties to the wage bargain through conciliation or arbitration usually implies the organization of the workers and the existence of collective bargaining. 1 But in any modern industrial community large numbers of un- organized workers are found, still bargaining individually, em- ployed at low wages and apparently unable to make any effective efforts themselves to improve their condition. If they are to be helped toward an equality in bargaining power with the employer, the state must take the initiative. This it does by setting standards below which wages may not be depressed in other words, by passing minimum wage legislation. 2 From a slightly different point of view the legal minimum wage fills a gap in our code of laws which protect the employee by regulating the conditions of employment. Minimum stand- ards for safety and sanitation have been enacted in many states and the maximum length of the working day has often been fixed. Such safeguards have long been familiar and are generally accepted as necessary and beneficial to the health and welfare of the workers. There exists also a considerable 1 The industrial courts of Europe, previously described, employ con- ciliation in both collective bargaining and individual contracts. 2 Modern minimum wage legislation is not comparable to the mediaeval fixing of wages by justices of the peace, which prescribed not a minimum, but the actual rates to be paid. See "Coercion by Government," p. 152. THE MINIMUM WAGE 183 group of laws which determine certain conditions of the wage payment. For instance, the weekly payment of wages may be required or payment in " store orders" may be forbidden, as described in Chapter II. But any legislative interfer- ence with the wage rate was long in making its appearance, though equally essential to a complete code of legislative protection for the workers. Work may be done under safe and sanitary conditions for hours not too long, and payment of wages may be prompt and regular, but if the amount re- ceived is too small to secure the necessaries of life the worker's health and welfare are menaced. Therefore, the same mo- tives which have caused most of our states to establish mini- mum standards to guard the worker against unsafe and unsanitary conditions have caused many of them to set up standards for protection against the evils of low wages. But whether one emphasizes the protection to health and welfare afforded by minimum wage legislation or its equaliza- tion of the strength of the parties to the wage bargain it appears not as a novelty in legislation, but as an extension of principles whose enactment into law is of comparatively long standing. i. ECONOMIC BASIS That a large proportion of unskilled workers are paid wages far too low for decent self-support is a fact confirmed by many wage investigations and well known to those even slightly familiar with present-day industrial conditions. (i) Low Wage Scale Even before the era of unprecedentedly high prices ushered in by the war, it was the consensus of expert opinion that a weekly wage of $8 or more was necessary under urban con- ditions for the maintenance of a self-supporting woman in simple decency and working efficiency, and that a man with a wife and three children required at least $15 to $20 weekly for their proper support. 1 Yet a study made at that time of women's wages in the United States concluded that 75 per 1 See Howard B. Woolston, "Wages in New York," The Survey, February 6, 1915, p. 510. 184 PRINCIPLES OF LABOR LEGISLATION cent, of female wage-earners received less than $8 weekly, 50 per cent, less than $6, and 15 per cent, less than $4, and that these wages were further reduced approximately 20 per cent, through lost time and unemployment. 1 The pay of unskilled male workers was at a correspondingly low level. Streightoff, in his discussion of American standards of living, estimated that at least six million adult men, married as well as single, received less than $600 a year, or $12 a week. 2 More intensive investigations bore out these figures. The United States Im- migration Commission studied a large number of typical households representing both native and foreign-born in six- teen leading industries. More than half of the male heads of families earned less than $500 a year, and nearly two-thirds less than $6oo. 3 A little later the New York State Factory Investigating Commission examined the pay-rolls of over 2,000 stores and factories during the fall, winter, and spring of 1913-1914. ' Out of 57-,ooo women and girls, approximately 34,000, or 60 per cent., earned less than $8 in a typical week. Seven thousand out of 14,000 married men, or 50 per cent., earned less than $i5. 4 During the war the wage level was materially raised, but owing to the unprecedented rise in prices that accompanied the change it is doubtful whether real wages were materially altered for the better, except perhaps in a few war industries and in certain occupations covered by especially liberal gov- ernment wage awards. The United States Bureau of Labor Statistics estimated that the cost of a family's living increased 80 per cent, in the chief shipbuilding centers of the United States between June, 1914, and June, 1919, and 70 per cent, in other localities. The "National Industrial Conference Board," which is a federation of several large employers' associations, and likely, therefore, to be conservative in its estimates, put the increase at 71 per cent, for the similar Charles E. Persons, "Woman's Work and Wages in the United States," The Quarterly Journal of Economics, February, 1915, p. 232. 2 Frank H. Streightoff, Distribution of Incomes in the United States, 1912, P- 137- 3 Arthur N. Holcombe, "The Legal Minimum Wage in the United States," American Economic Review, 1912, Vol. II, p. 33. 4 Howard B. Woolston, "Wages in New York," The Survey, February 6, 1915, P- 510. THE MINIMUM WAGE 185 period of June, 1914, to July, 1919. The National War Labor Board found in June, 1918, when the cost of living had risen but 55 per cent, above pre-war levels, that $1,380 a year, or about $26.50 a week, was necessary for a family of five to maintain the "minimum of subsistence" in the large eastern cities. According to the price statistics just quoted such a minimum would have risen to $33.92 weekly in the summer of 1919. On a similar basis the minimum "living wage" for a self- supporting woman, if assumed to be $8 a week in 1914, was $14 in 1919. It was, in fact, estimated to be $15 by the Consumers' League of New York City in January, 1919, and $16.50 by the District of Columbia Minimum Wage Com- mission in July of the same year. On the average, wages had failed to reach these standards in 1919, while prices showed few signs of falling, in spite of anti- "high cost of living" campaigns. The New York Industrial Commission, securing between November, 1918, and January, 1919, figures on the earnings of 32,000 women in the same industries which had been covered by the Factory Investigating Commission in 1913-1914, found that 60 per cent, of those in factories and 61 per cent, of those in stores received less than $14 a week. The average weekly wage for both sexes in a large number of representative New York State factories was but $24.83 a week in September, 1919, while in eight large industries for which data were collected by the National Industrial Conference Board, the average weekly wage for male workers was $24.24 in September, 1918, and $23.37 in March, 1919. It seems, then, no exaggeration to say that the majority of low-skilled industrial workers in the United States receive wages too small for decent self-support. This fact explains the demand for minimum wage legislation as necessary to social welfare; the causes for the low scale form the economic basis which determines the extent to which the demand is practicable and the legislative standards enforceable. (2) Economic Weakness of Low-Paid Workers The almost entire absence of strong labor organizations and collective bargaining among this group of wage-earners i86 PRINCIPLES OF LABOR LEGISLATION is an important factor in producing the low wage scale. Many are women who are often members of a family group, unable to move from place to place in search of better oppor- tunities, but remaining at home to overcrowd the few lines of work available in a given locality. Then, too, the ma- jority of women workers are young and inexperienced and their frequent withdrawal from industry on marriage makes them look upon their work as only temporary. On the whole, it has been extremely difficult to form stable unions among women workers. Experience both in England and in this country shows that organization among low-skilled men workers is almost equally difficult. In the absence of collec- tive agreements it has sometimes been possible to compel the workers to keep their wages secret. An Oregon department store, for instance, required each applicant for employment to sign an agreement which included a promise to "keep my salary confidential." * Such secrecy obviously makes it easier to depress wage scales. In the circumstances it is also not surprising that among this group of workers the relation between wages and productivity is not traceable, but that "there are also great differences in wages for work that is apparently the same. Some firms pay constantly 25 per cent, more than their rivals for similar operations." 2 In the United States the situation, until the outbreak of the Euro- pean war, was further complicated by the stream of immi- gration, which furnished an abundant supply of cheap labor and which put still another barrier, in the shape of divergent language and customs, in the way of union organization. Another reason for the low wage scale, largely the result of the first, is the cutthroat competition of the workers for work. Among the unskilled, unorganized workers, the wage that the cheapest laborer, such as the partially sup- ported woman, the immigrant with low standards of living or the workman oppressed by extreme need, is willing to take, very largely fixes the wage level for the whole group. A third reason, the obverse of that just d^mssed, is the igrou] ft 1 Report of the Social Welfare Committee, Consumers 1 League of Oregon, 1913, p. 26. 2 Fourth Report of the New York Factory Investigating Commission, 1915, "The Confectionery Industry," Vol. II, p. 312. THE MINIMUM WAGE 187 absence of active competition among employers for workers. With a plentiful supply of the lower grades of labor continually seeking employment, the employer over long periods of time has felt no need to offer inducement in the form of higher remuneration in order to fill his shop. Moreover, a socially undesirable type of competition be- tween employers flourishes when the bargaining power of employees is weak. The encouragement of superior ability and invention has always been pointed out as one of the chief advantages gained by the community from the com- petitive system of production. When an employer can hire workers for practically his own price, he can be slack and in- efficient in his methods, and yet, by reducing wages, re- duce his cost of production to the level of his more able competitor. Minimum wage legislation, therefore, may answer the de- mands of social policy in two ways. By setting a barrier below which wages may not fall, it lightens the pitiful poverty and prevents the degeneration in body and spirit of those forced to live on a wage too small to supply the necessaries of life. Competition among them no longer takes the form of offering to work for lower wages, but that of developing greater efficiency. At the same time employers are forced to compete in efficiency of management, thus securing for society at large the many advantages of constantly improved methods of production. Minimum wage laws attempt neither to destroy competition nor to fix wages by law; they merely seek to set the lower limits to both in the interests of society as a whole. 2. HISTORICAL DEVELOPMENT (i) Australasia Australasia is the birthplace of minimum wage legislation. Though it is a new and prosperous country, as long ago as the 'eighties the sweating system, with its evils of low wages, long hours, and unsanitary conditions, was discovered to be alarmingly prevalent. The Age, the leading Melbourne news- paper, carried on a crusade against these conditions, and a i88 PRINCIPLES OF LABOR LEGISLATION royal commission was appointed whose report in 1884 showed that hours were excessive and that wages were constantly reduced by the miserable rates paid to home workers. Public indignation was aroused until finally determined efforts were made to overcome these evils. In 1894 New Zealand passed a law providing for the com- pulsory arbitration of labor disputes, which, while primarily intended to preserve industrial peace, may also be used for the prevention of sweating. The district conciliation boards established by this law have authority to fix minimum wages, and if sweated workers want their conditions improved they need only file a statement of their claims in the office of the nearest conciliation board. By means of this machinery underpaid workers, men more often than women, have secured wage increases. However, the first Australasian law whose main purpose was to end sweating was passed by Victoria two years later, and since it is the Victorian method which Great Britain and the United States have adopted, the system deserves consideration at length. The public feeling against the sweating system in Victoria had resulted in the formation of an Anti-Sweating League. Largely as a result of the league's efforts and in spite of bitter opposition from the employers under the leadership of the Victorian Chamber of Manufactures, Victoria passed the first minimum wage law in 1896. Sir Alexander Peacock, originator of the system and later minister of labor in Victoria, has written: "It was alleged, first, that all work would be driven out of the country; secondly, that only the best workers would be em- ployed; and thirdly, that it would be impossible to en- force such provisions at all. . . . However, the government managed to carry the bill and the wage-board system was inaugurated." l The law required that representative boards fix minimum wages in certain industries designated by the legislature. Moreover, being frankly an experiment, the act was to be en- forced for only four years. Wage boards were first appointed 1 M. B. Hammond, "The Minimum Wage in Great Britain and Aus- tralia." Annals of the American Academy of Political and Social Science, July, 1913, p. 28. THE MINIMUM WAGE 189 in the six especially sweated trades of boot-making and baking, which employed -mostly men; clothing, shirt-making, and underclothing, which mostly employed women; and in furniture-making, in which the competition of Chinese labor was depressing wages. In 1900, when the first minimum wage law came to an end, the government brought in a bill providing for the extension of the wage-board system to other trades. The Victorian Chamber of Manufactures pro- tested violently, urging, and with good reason, that the gov- ernment's proposal meant the extension of the system to trades in which there was no evidence of sweating. How- ever, the government showed that it had received a number of applications from employers, asking, for the appointment of special boards, and that sweating had disappeared in the trades in which boards had been established. Accordingly, the bill was passed and an extension of the system was begun, which continued from year to year until at the end of 1916 236 separate boards had been appointed, fixing minimum wage rates for 150,000 employees in a state whose total population is less than a million and a half. Minimum wage rates have been established for all the important manufacturing occupations in the cities and also for street railways, mer- cantile and clerical employments, mining, and even for cer- tain agricultural workers. The wage-board system is no longer regarded as an emergency measure intended to secure a living wage where conditions are exceptionally bad, but as a satisfactory method of fixing the standard wage in any trade. The act was again renewed in 1903, and in 1904 was made permanent. While the scope of the law has been widely extended, the opposition of the employers has decreased, until in April, 1912, M. B. Hammond, of the Ohio Industrial Com- mission, as a result of first-hand investigations, reported that both employers and employees "are now practically unani- mous in saying that they have no desire to return to the old system of unrestricted competition in the purchase of labor." * South Australia, Queensland, New South Wales, and Tas- mania, between 1900 and 1910, also adopted minimum wage 1 Ibid., p. 35- igo PRINCIPLES OF LABOR LEGISLATION legislation, but in close relation to their systems of compul- sory arbitration. 1 In South Australia, Queensland, and New South Wales, "arbitration courts," with coercive powers in settling labor disputes, serve as courts of appeal from the decisions of minimum wage boards. Tasmania forbids strikes wherever the award of a wage board is in force. From the first all these states made minimum wage legislation appli- cable to practically the whole range of employment and not merely to sweated trades. (2) Great Britain One of the most important developments in the English social reform movement during the early years of the twentieth century was the acceptance of minimum wage legislation as a practicable policy. While twenty years ago the fixing of minimum wage rates by law was apparently outside the realm of practical politics, it is advocated in Great Britain to-day not only by the Labor Party, but also by the Liberals and an influential group of Unionists. Among the chief reasons for this development of public policy was the increased public knowledge of conditions among sweated workers. Investigations showed that large numbers of low-skilled unorganized workers were receiving less than the wage necessary for the maintenance of mere physical efficiency. Attempts were made to extend trade unionism among them, so that they might raise their wages as more skilled workers had done, by collective bargaining. But the formation of strong unions among these sweated workers was generally found to be impossible. The market for their labor was chronically overstocked and the struggle for bare exist- ence was too severe to permit the development of stable organizations. The public was aroused to this menace of in- sufficient wages, which its victims themselves seemed power- less to remedy, mainly through the efforts of the National Anti-Sweating League, which, with the Labor Party and cer- tain other organizations, vigorously urged the adoption of minimum wage legislation. The agitation resulted first in a 1 See "Development of Coercive Intervention," pp, 162-166. THE MINIMUM WAGE 191 parliamentary inquiry and finally, in 1909, in the passage of a trade boards act, modeled on the Victorian statute, which went into effect the following year. This law provided that wage boards may be established by order of the board of trade, subject to ratification by Parlia- ment, for all employees in any industry in which the prevail- ing rate of wages is "exceptionally low as compared with that in other employments.'.' 1 The first four trades regu- lated were tailoring, paper - box making, the finishing of machine-made lace, and the manufacture of certain kinds of chain, industries which employed altogether about 250,000 operatives. By 1913 the successful operation of the law was so generally recognized that the formation of boards was ordered in five additional trades: sugar confectionery and food-preserving, shirt-making, certain kinds of tailoring, hol- low-ware making, and cotton and linen embroidery, employing nearly 150,000 more workers. The trades covered employ chiefly women, and before regulation the wage conditions were flagrantly bad. The first extension of the wage-board system outside the sweated trades was also exceptional, but for an altogether different reason. There had been great unrest among the coal miners during the winter of 1911-1912, culminating in a strike in the spring of 1912 which paralyzed industry. One of the men's principal demands was a flat rate weekly mini- mum wage. In the interests of industrial peace the govern- ment was forced to yield to the principle of this demand by passing a measure establishing representative district boards to fix minimum wages and other working conditions. While the operation of this act is said to have proved less satis- factory than the workings of the trade boards, it presents the issue of wage regulation in a wider form, not simply as a means of protecting the sweated workers at the very bottom of the industrial system, but as a supplement to voluntary collective bargaining for a comparatively well - placed economic group, the skilled men workers in a well-organized trade. Up to the outbreak of the European war, then, English 1 Trade boards act, 9 Ed\v. 7, C. 22, Sec. i (2). i 9 2 PRINCIPLES OF LABOR LEGISLATION minimum wage legislation had reached some of the hardest pressed and some of the most fortunate groups of industrial workers. Throughout the war, numerous adjustments were made in the awards for the nine sweated trades which had been dealt with under the original act, but the increases hardly kept pace with the ever-soaring cost of living, the boards increasing rates only "by so much as they thought the industries concerned would be able to support after the war." l But in the latter years of the war, two important extensions of minimum wage legislation were made, in part with a view to stabilizing wages during the transition from war to peace, which went far toward repeating in England the line of de- velopment which had been followed in Australia, and which transformed the trade boards from a special device for remedy- ing unusually bad conditions to a common method for fixing wage-standards for all wage-earners. One was an amend- ment to the trade boards act which, in brief, provided that boards to fix minimum wages might be formed wherever Y earnings were "unduly" low, 2 instead of "exceptionally" low, as under the original law. Before the war, the general wage level had been so low in certain groups of occupations that it was often difficult to prove that they were "exceptionally" so in cases where it was desired to take action. -Provision was also made for having the awards come into force more quickly and for removing various administrative difficulties which had been experienced. The amending act likewise made the boards a possible instrument for industrial self- government by empowering them to make recommendations to government departments concerning improvements in in- dustrial conditions in their trades and by requiring the gov- ernment to consult them on industrial questions affecting the workers whom they represent. Following the signing of the armistice the establishment of new trade boards proceeded rapidly, and by September, 1919, they were in operation in six additional industries, 3 in process of organization in nine 1 G. D. H. and M. I. Cole, The Regulation of Wages during and after the War, p. 4. 2 8 and 9 George 5, C. 32 (1918). 3 Boot and shoe repairing; brush and broom making; corset making; laundries; paper-box making; tobacco. THE MINIMUM WAGE 193 more, 1 and the first steps toward forming them had been taken in a number of other occupations. The other important extension of the minimum wage prin- ciple was the establishment of a minimum wage for agricult- ural laborers in connection with the corn production act, and the further provision that the minimum rate fixed by the law might be varied for different localities by representative "agricultural wages boards." The main purpose of the act was the stimulation of grain production through guaranteeing farmers a minimum price for their wheat for a considerable term of years. A demand was then made that wages in turn be guaranteed. Under the act the wage boards had, by the autumn of 1919, fixed minimum rates for men and women, boys and girls, through practically the whole of England and Wales. The minima for adult males tended to be higher than the rate tentatively fixed by the law itself. 2 A sweeping extension of the minimum wage principle was foreshadowed by the introduction of a government bill for the fixing of minimum time rates in all occupations, which had been recommended by the national industrial conference called by the prime minister in March, 1919, and which was still pending in Parliament early in 1920. (j) Other Countries Abroad During the war period four other countries and four Cana- dian provinces passed minimum wage legislation, the laws in most cases applying only to home workers. France adopted the principle of the minimum wage in 1915 for women home workers in the clothing industry. 3 The law provides for the waters; fur; hair, bass and fiber; hats, caps, and millinery; jute, rope, and twine; retail bespoke tailoring; wholesale mantles and costumes; women's dressmaking; light clothing. 2 Under the munitions of war acts (1915, 1916, 1917) extensive govern- ment wage fixing was carried on in the war industries. In settling trade disputes, arbitration boards determined wages for all classes of workers. The ministry of munitions made many wage awards for women and unskilled men. The former, however, should be classed with compul- sory arbitration, and in the latter case actual rates, and not minimum rates, were generally set. The wages (temporary regulation) act main- tained war wages until 1920. 3 United States Bureau of Labor Statistics, Monthly Review, December, 1915, PP. 36-41- 13 i 9 4 PRINCIPLES OF LABOR LEGISLATION establishment of a representative wage board in each of the departments into which the country is divided, which is to fix minimum wage rates for all female home workers on cloth- ing, hats, shoes, white goods, embroidery, laces, and artificial flowers. Boards had been set up and had made wage awards in twenty-two of the eighty-seven departments by May, IQI6. 1 Toward the end of 1916 several strikes for increased wages on account of the high cost of living took place in munition factories. To meet the situation, strikes and lockouts were forbidden and a system of arbitration boards was set up by presidential decree. Among the duties of the boards was the fixing of minimum wage rates in each department. It was stipulated that the minima must always be sufficient to per- mit the average worker to earn a living wage. By August, 1917, rates had been fixed in all the important industrial dis- tricts. Later, as the cost of living continued to rise, the true minimum wage principle was abandoned, and it was arranged that the basic rates should remain unchanged, and price increases should be met by a system of bonuses. 2 * The Norwegian legislation also covers home workers alone, and is of a particularly tentative character. A law of Febru- ary 15, 1918, created a home workers' commission or board to be in existence for five years, which may form representa- tive trade boards for the special industries or localities to investigate labor conditions in all places where home work is carried on and to fix minimum wages in home work in the manufacture of clothing and articles of needlework. Other occupations may be added by the government. The board is to make recommendations for a permanent law. 3 The Argen- tine Republic is likewise reported to have enacted a law in 1918 providing for the establishment of trade boards to fix minimum wage rates for home workers. 4 Unemployment in the embroidery industry, due to the 1 United States Bureau of Labor Statistics, Monthly Review, September, 1916, p. 77. 2 Mary Conyngton, "Women Munition Workers in France," United States Bureau of Labor Statistics, Monthly Labor Review, July, 1918, p. 126. 3 United States Bureau of Labor Statistics, Monthly Labor Review, September, 1918, p. 680. 4 Great Britain, Ministry of Labor, Labour Gazette, February, 1919, P. 43- THE MINIMUM WAGE 195 effects of the war, was the indirect cause for the fixing of minimum wage rates in that occupation in Switzerland. In order to relieve the distress of the employees the federal council, in December, 1916, created emergency funds from which needy employees were to receive payments, the cost of which was to be assessed on the manufacturers. Some em- ployers attempted to cover the tax by reducing the wages of their workers and the council, in order to prevent this, issued an order fixing minimum rates for the trade. 1 The four Canadian provinces of British Columbia, Mani- toba, Quebec, and Saskatchewan, all passed minimum wage laws in 1918 and 1919. The legislation applies to women and minors in all industries, though in Manitoba only the city is covered. Numerous wage awards were in force under these laws at the beginning of 1920, except in Quebec, where the law had been in effect only a few months. (4) The United States In America a wide-spread demand for minimum wage legis- lation dates back to about 1910. Two factors contributed to the rise of popular sentiment in favor of the legislation at this time. One was the increased knowledge of cpnditions among sweated workers, resulting from such investigations as that of the federal Bureau of Labor on Conditions oj Woman and Child Wage-Earners in the United States. The other was the successful operation of the British trade boards act under \ conditions not unlike those in our own country. In public employment, to be sure, wages in this country had for several years been regulated both by state laws and by city ordinances. Most commonly these regulations fix the wage rate 2 or require that "prevailing rates" be paid, which 1 United States Bureau of Labor Statistics, Monthly Review, Decem- ber, 1917, p. 1 1 86. 2 The New York City Board of Estimate showed a broad social point of view in its efforts in 1915 to fix a just wage for street cleaners, who are among the lowest paid and least skilled of city employees. The board proposed fixing their pay in harmony with the results of a thorough in- vestigation of the income necessary for a family of five "living in accord- ance with American ideals." Such an income was then said to be $70 a month in New York City. Considering the increase of prices, it would have become $118 by the summer of 1919. While the wages of street cleaners were raised this standard was not reached. i 9 6 PRINCIPLES OF LABOR LEGISLATION ! \ are usually interpreted as union rates when a union exists in the locality. Several statutes and ordinances, however, es- tablish a true minimum wage. For example, California pro- vides that the minimum wage for all public employees except those in public institutions shall be at least $2 a day. 1 Massa- chusetts stipulates that "women cleaners and scrubwomen" employed by Suffolk County must be paid not less than $8 a week. 2 In 1913 Spokane, Wash., established by popular vote a minimum wage of $2.75 a day on public work, and on January 2, 1914, the state supreme court sustained this or- dinance. But in this country until the last few years wage rates in private employment were seldom considered a sub- ject of possible legal regulation. There were, indeed, sporadic attempts to fix minimum wage standards by law. Typical of these is a bill introduced in the Nebraska legislature in February, 1909. This pro- vided that "for the purpose of protecting the American stand- ard of living, and to insure to all who labor that they shall have an opportunity to improve themselves, to educate their children, and to lay by a sum for old age," the minimum wage "for all adult labor, male or female," should be 20 cents by the hour or $9 by the week, with 25 cents an hour for over- time. Such proposals, however, received but little serious consideration. The first American state to pass a minimum wage law was Massachusetts. An investigating commission was appointed there in 1911, and its report resulted in legislation in 1912. In 1913, as a result of further investigations, eight states 3 followed the example of Massachusetts, and in 1915 two more were added, 4 in spite of the withholding of the decision of the United States Supreme Court on the Oregon law. Arizona enacted legislation in 1917 and Colorado revised its law, while following the Supreme Court's long-awaited decision, Congress legislated for the District of Columbia in 1918, and North Dakota and Texas passed laws in 1919. The Nebraska law, under which no action had ever been taken on the ground 1 California, Code 1906, No. 2894, Sec. I. 2 Massachusetts, Laws 1914, C. 413. 3 California, Colorado, Minnesota, Nebraska, Oregon, Utah, Wash- ington, Wisconsin. v , * Arkansas, Kansas. THE MINIMUM WAGE ^ 197 that no complaints had been received, was repealed, appar- ently by accident, in codifying the laws in 1919. Constitutional amendments specifically allowing minimum wage legislation were passed by California in 1914 for women and minors, and, contrary to American precedent, by Ohio in 1912 for all classes of workers. Ohio, however, had in 1919 taken no step toward legislation except to authorize the state industrial commission to investigate working conditions among women and minors alone. 1 In addition to the measure enacted by Congress establish- ing a minimum wage law for women and children in the District of Columbia, bills have been introduced in that body applying to employees of the federal government, and to all workers engaged in interstate commerce, but these proposals have not as yet been given much attention. Thus far in the United States minimum wage legislation has been even more restricted in scope than at its first enact- / ment in Great Britain or Australia. It has been passed ta remedy sweating, not among all workers as in the other countries, but only among women and children.. In this re- spect minimum wage laws resemble much other American labor legislation which also when first passed, in part for con- stitutional reasons, in part perhaps because of the more evi- dent inability of this class of workers to protect themselves, applied only to women and minors. Then, too, man}- Ameri- can representatives of labor oppose minimum wage laws for men, feeling that men workers can obtain better wages by organization without the aid of legislation. In addition wage investigations in this country have far more often dealt with women than with men, so that at present in America there exists a much greater body of evidence to show inadequate wages among women than among men workers. That a change is taking place in the public attitude toward wa.ge legislation for men, however, is evidenced by the serious consideration given to a bill introduced in the Wisconsin 1 The department of investigation and statistics of the Ohio Industrial Commission had issued up to the beginning of 1920 two reports on the subject No. i, "Wages and Hours of Labor of Women and Girls Em- ployed in Mercantile Establishments in Ohio in 1913," and No. 14, " Cost of Living of Working Women in Ohio." i 9 8 PRINCIPLES OF LABOR LEGISLATION legislature in 1919, which would have extended the provisions of the state minimum wage law to them. The bill passed the state senate, but failed in the lower house. Minimum wage legislation in the United States, then, is expressly permitted by two state constitutions and existed at the beginning of 1920 in thirteen states and in the District of Columbia. It is regarded almost entirely as a remedy for ex- ceptional conditions, providing only a bare subsistence wage for those considered the most helpless class of sweated workers namely, women and children. The more rigid limitations of written constitutions, the labor union opposition, and the difficulties of administration, are factors which may work against such an extension of these laws in the United States as has taken place in some countries. 3. STANDARDS The purpose of minimum wage legislation is the raising of excessively low wages. The question of the standards of wage awards is therefore an important one. How adequate is the minimum wage? Is it always a "living wage," and, if so, is account taken only of the bare physical necessities of life, or is allowance also made for the requirements of mental and moral welfare? Is provision made for the support of a family or for the needs of the individual worker alone? Is there any consideration of probable periods of unemploy- ment? On what basis do wage boards fix the pay of young, inexperienced, and handicapped workers? (i) Australia In Australia, statutory definitions of the minimum standard exist in Western Australia and New South Wales. In both cases it is that of the living wage. Since 1912 Western Aus- tralia has required every minimum prescribed to be " sufficient to enable the average worker to whom it applies to live in reasonable comfort, having regard to any domestic obligations to which such average worker would ordinarily be subject." l 1 Western Australia, industrial arbitration act, 1912, No. 57, H 84. THE MINIMUM WAGE 199 The 1918 amendment to the New South Wales arbitration act establishes a board of trade, one of whose important func- tions is the collection of facts which will enable the arbitration court to determine annually a general minimum living wage for men and for women. 1 Tasmania and Victoria originally provided that the "wages paid by the reputable employer" should be taken as the basis, but this standard proved difficult to administer, and the clause was dropped. The wage determinations of the Australian states have been much influenced by the decisions of the Commonwealth Arbitration Court which settles interstate trade disputes, and which early set as the minimum for unskilled laborers a sum sufficient to cover "the normal needs of the average employee regarded as a human being living in a civilized community." In other words, the minimum is a living wage > in the broader sense of the term, not a mere subsistence wage. Above this "basic wage," which the court does not permit to be lowered for such considerations as international competi- tion or the lack of profitableness of the enterprise, may be fixed an additional "secondary wage," "the extra payment to be made for trained skill or other exceptional qualities necessary for an employee exercising the functions required." "The court tends," said its presiding officer, "to refuse to make differences in minimum rates except for clearly marked distinctions and qualifications, such as craftsmen's, or excep- tional responsibility, or special physical condition, necessary for the function." The court held that with the secondary wage ' ' there was more scope for compromise or arrangement ' ' than with the basic rate. "At the same time it has been found advisable, except in extreme circumstances, to diminish the margin between the man of skill and the man without skill. . . . When the court has increased the basic wage because of abnormal increase of prices during the war it has not usually increased the secondary wage. It has merely added the old secondary wage, the old margin, to the new basic wage." The question of differing wage standards for men and for women has been clearly worked out in Australia. Since a man must normally maintain a family, a living wage for male Commonwealth Arbitration Reports, Vol. II, p. 3 200 PRINCIPLES OF LABOR LEGISLATION workers must cover the cost of such maintenance; a woman ordinarily supports herself alone, so that the minimum for female workers is fixed on that basis. "The minimum can- not be based on exceptional cases." l For the same reason the partial support of some women workers by their families is not considered in fixing their wages. When both men and women are employed in the same occupation, the wage rate is fixed for the sex usually found therein. Allowance is also made in wage-fixing for time lost on account of irregular employment, and for any special expenses connected with the occupation, such as traveling expenses or the provision of uniforms. (2) Great Britain In England, where no standard is set by the law itself, the general practice is "to level the wage for the whole trade in each district up to the standard of the best employer in that district." 2 In the badly sweated trades this means a con- siderable increase for most of the workers, but not necessarily a living wage. For instance, in chain-making, the original award gave a large increase in hourly rates for time work, though it provided only 5 cents an hour for women workers or approximately $2.70 for a full week's work of fifty-four hours. 3 More recent awards in less low paid trades seem to be on a somewhat more liberal scale, for instance that grant- ing adult women in the tobacco industry '$8.40 for a forty- eight-hour week. (j) The United States a. Definition of the Living Wage. Nearly all the American laws define in general terms the principle to be followed in fixing wages, which is usually that of a living wage. In a majority of the laws phrases such as "the necessary cost of proper living" and "to maintain the health and welfare" are used. 4 In working out wage standards on this basis, the 1 Commonwealth Arbitration Reports, Vol. VI, p. 71. 2 John A. Hobson, "The State and the Minimum Wage in England," The Surrey, February 6, 1915, p. 503. 3 See R. H. Tawney, Minimum Rates in the Chain-Making Industry, 1914, p. 39. * California, Laws 1913, C. 324. THE MINIMUM WAGE 201 English practice of leveling, up wages to those paid by the best employer in the trade in a given district is obviously not a sufficient guide. Then, too, since the laws apply only to women and minors, relative standards for the two sexes need not be considered, as in Australia. One finds, however, America on the whole using the Australian standard for women workers namely, the cost of living of the entirely self-sup- porting woman. American employers have sometimes asked that the help received by many women workers from their families be taken into account in fixing the standard, but this request has been denied. Earlier orders were in the neighborhood of $8 and $9 a week. Following the war-time price increases, the state of Washing- ton was the first to break away from the traditionally low levels by establishing, in September, 1918, a flat rate of $13.20 for all experienced adult women for the period of the war. Oregon followed closely with rates of $11.10 and $11.61 in certain industries. The District of Columbia commission, making provision for the high cost of living in the city of Washington, fixed minima of $15.50 in the printing and en- graving industry and $16.50 the highest award in the coun- try at the time in mercantile establishments. Massachu- setts followed in May, 1920, with an order for a rate of $15.25 weekly in the women's clothing industry. California in 1919 awarded $13 . 50 in laundries and dry cleaning shops. Wisconsin set up a general rate of 2 2 cents an hour for experienced adult workers, and Minnesota changed from its $8 and $9 weekly rate to 23 cents an hour. But even under the highest wage awards strict construction has been placed by most wage boards upon the term "neces- sary cost of living." As a matter of fact, the budget, like the wage rate which it determines, is a compromise. The representatives of the employees present their budget and their proposal for a rate based on it; the representatives of the employers do likewise, and the two forces contend until they come to some agreement on a rate. The budget is then worked out to, fit their rate. The budgets provided for under recent orders, even the most liberal, do little more than secure "not a wage so ... women can live well, not enough to make life a rich and welcome experience, but just enough to 202 PRINCIPLES OF LABOR LEGISLATION secure existence amid drudgery in gray boarding-houses and cheap restaurants." 1 That this is so is shown by an exam- ination of two Massachusetts budgets, the earlier drawn up by the wage board in the brush industry in 1914, and the latter estimated for the women's clothing worker who receives $15.25 a week under the order of May 7, 1920: Minimum weekly budget for a self-supporting woman in Boston, 1914. Board and lodging $5 . 50 Clothing 1.35 Laundry 20 Doctor and dentist Church 10 Vacation 19 Recreation 09 Newspapers and magazines .08 Education Savings Carfare 60 Incidentals . 17 Total.. ..$8.28 Weekly budget allowed Massa- chusetts women's clothing workers in May, 1920. Board and lodging $ 9.50 Clothing 3.25 Laundry 45 Doctor and dentist 40 Church 10 Vacation 40 Recreation 37 Newspapers and magazines Education 1 8 Savings 30 Carfare 20 Incidentals.., .10 Total $15-25 b. Wage Losses from Unemployment. In fixing standards for minimum wages, the question of regularity of employment is of great importance. Whether or not a worker can secure steady employment in a given industry is the factor which determines whether the "living wage" prescribed in an award provides a "living income" throughout the year. Until re- cently the problem has received but little attention in America, 2 many of the awards thus far made being sufficient only for the needs of the current week. As no provision is made for savings, a girl who receives the minimum wage must run into debt or deny herself necessaries if she loses her position. Yet many low-paid industries whose wage rates are affected by minimum wage awards are notably irregular, as for example candy-making and paper-box making. In Massachusetts, in Oregon, and in Washington, however, wage losses from unem- ployment have been given some attention by wage boards. 1 Walter Lippmann, "The Campaign against Sweating," New Repub- lic, March 27, 1915, Supplement, p. 8. 2 See Irene Osgood Andrews, "The Relation of Irregular Employment to the Living Wage for Women," in Fourth Report of the New York Factory Investigating Commission, pp. 497-635; also in American Labor Legislation Review, June, 1915, pp. 287-418. THE MINIMUM WAGE 203 c. Profits of the Business. An important question likely to arise when wage standards are fixed is whether or not the financial condition of the industry should be taken into ac- count. Most often the problem comes up in connection with the struggling business which claims it cannot survive if its workers are paid a living wage. The issue here is the lowering of the standard of wages in order to secure the continued existence of such an industry. But such a concession enables an industry to flourish without paying the whole cost of maintenance of -those whose time and services it uses. Its workers must be partly supported by the earnings of others, who are thus practically subsidizing the underpaying in- dustry. Such a trade has well been called "parasitic," since its existence depends on the bounty of others. It may be that other members of the woman's family (and the better- paying occupations in which they are employed) make up the deficit in her income; it may be that society as a whole pays the bill for the physical and moral deterioration of the workers by its expenditures for hospitals, charities, and reformatories. Most American statutes, through the stipulation that the minimum wage shall cover the cost of living, take the same stand. In Colorado and Massachusetts, however, "the finan- cial condition of the business" is to be considered side by side with the cost of living. In Massachusetts, in the temporary award for the brush industry, this resulted in fixing a mini- mum less thanaliving wage. The cost of living for a self- supporting woman was found to be over $8 weekly. 1 But on account of the condition of the business the commission was obliged to make the hourly rate for the first year so low that women could earn only about $7 weekly unless they obtained more than the usual amount of work. 2 In retail stores also the wage board believed the necessary cost of living to be "as much as and probably somewhat above" the minimum recommended, but held that "the schedule of wages adopted is as high as the retail stores of the state will be able to pay until industrial and business conditions shall have shown a 1 See p. 202. 2 Second Annual Report of the Minimum Wage Commission of Massa- chusetts, p. ii. 204 PRINCIPLES OF LABOR LEGISLATION marked improvement." l A consideration of the prosperity of the industry may thus retard the process of raising the wage to the necessary minimum or even at times overthrow the whole principle of the living wage. d. Substandard Workers. Nearly all minimum wage laws permit the fixing of wages for young workers and apprentices and for inexperienced workers. As a guide in fixing these special rates most American statutes contain only a provision that rates for children and apprentices shall be suitable. The usual practice is to name the rate for young workers and apprentices in the award with the regular minimum rate. In some cases where lower rates were set for minors and learners, especially in trades requiring little skill, there were attempts to substitute young girls and inexperienced workers for adults. To overcome this difficulty it was found necessary to specify the length of the apprenticeship and sometimes also the proportion of apprentices allowed. Learning periods specified in the orders vary from three weeks in the canning industry in one state to two years in the mercantile industry of another state. The Wisconsin wage order provides for a six months' learning period for adult employees. For the first three months of this period the minimum rate of pay is 18 cents an hour; for the second three months, 20 cents an hour. Children between the ages of fourteen and seventeen may be paid 1 6 cents an hour for the first three months and 18 cents an hour for the second three months, provided that where a child is doing the same work as an adult the child shall receive the same rate as the adult. In the retail mercantile trade the Massachusetts orders provide for an apprenticeship period of four seasons of twelve weeks each, during which time learners are to be paid from $4.50 to $7.50 a week. The problem of piece work has caused considerable diffi- culty. Employers have been inclined to object to the hourly rates on the ground that their employees who are on piece work cannot make the hourly rate. The California commis- sion has worked out a method by which employers may test their piece rates, by providing that if in an individual estab- 1 Massachusetts Minimum Wage Commission, Statement and Decree Concerning t]ie Wages of Women in Retail Stores in Massachusetts, 1915, P. 3- THE MINIMUM WAGE 205 lishment the piece rates do nor yield to at least 66% per cent, of the female employees engaged on each product the minimum wage, which in this case is 28 cents an hour, the piece rates must be raised to the point where they will do so. The employment of slow or infirm workers at lower rates is generally permitted only by special license from the com- mission. For further protection against the abuse of the privilege, certain of the laws specify the proportion of such workers in a single establishment for whom licenses may be issued. 4. METHODS OF OPERATION There are two types of minimum wage law. One, tne ' "flat rate" law, prescribing the legal minimum in the statute itself, is very rare, while the other type, under which a board or commission after proper investigation fixes rates for one industry or group of industries at a time, includes the vast majority of these laws now in existence. (i) Flat Rate Laws Laws which directly fix the flat minimum rate are found only in certain of the Australian states, and in Arizona, Ar- % kansas, and Utah. In Australia, in addition to the system of wage boards, laws sometimes establish very low flat-rate minima, frequently of not more than 48 or 72 cents a week, intended principally to protect children, learners, and ap- prentices from bing put to work without wages and dismissed when they ask for pay. In America, only the Arizona law, with a $10 weekly minimum, and the Utah statute, which requires a daily wage of 75 cents for females under eighteen, 90 cents for inexperienced women, and $1.25 for experienced women over that age, fix universal flat rates. 1 In Arkansas a flat rate of $1.25 a day for experienced workers and $i a day for females having less than six months' experience is fixed by the law, but the commission may, after investigation 1 Arizona, Laws 1917, C. 38. The law fails to specify any enforcing authority. Utah, Laws 1913, C. 63. Enforcement is placed with the commissioner of labor. 206 PRINCIPLES OF LABOR LEGISLATION and public hearing, either raise or lower these rates. 1 This it has done in a limited number of instances. This method of fixing uniform flat rates prevents the more careful adjustment for various industries and localities which is elsewhere under- taken by wage boards, it fails to secure the active interest of the employers and employees concerned, and it makes revisions difficult during a period of rapidly changing prices such as occurred between 1916 and 1919. For women laundry workers in Little Rock, Ark., the National War Labor Board made an increase of $3.50 a week above the legal minimum, saying that "This law was passed a number of years ago under other conditions and cannot therefore be taken as a fair stand- ard under the war conditions now existing." The flat-rate method is held by most students of the problem to be dis- advantageous. .< (2) Wage Board Laws Representative of the second type of minimum wage laws, those which fix rates for various industries through wage boards, are the laws of Great Britain and of most Australian and American states. In Great Britain, under the amending act of 19 18, 2 the minister of labor is authorized to appoint representative "trade boards" to fix minimum rates in any industry "in which, on account of defective organization, wages are unduly low, or there is reason to apprehend an undue fall in wages when the special war conditions have passed." 3 New trades can be brought under the act without parliamentary confirmation, which was formerly necessary, though Parliament still reserves the right to veto such action. The boards may fix minimum time or piece rates which may differ for different classes of workers, for different districts, for different processes, or for any combination of these factors. Rates may be arranged to come into operation successively at the end of specified periods, and variations in rates may be made, to remain in force only during specified periods. In 1 Arkansas, Laws 1915, No. 291. 2 8 and 9 Geo. 5, C. 32 (1918). 3 Great Britain, Ministry of Labor, Labour Gazette, August, 1918, p. 308. THE MINIMUM WAGE 207 short, under the new act, great flexibility in rate-fixing is secured. Awards also go into force much more quickly and simply than under the 1909 law. It is possible for a rate to be brought into full operation within three months after it has been proposed, in contrast to nine months under the old conditions. Special exemptions for old or infirm workers are found in both acts.// The act provides for the appointment of inspectors for en- forcing the payment of the minimum rates, and for fines for employers not paying the rate. An employee who has not received the legal minimum rate may recover the balance due him. In Great Britain the ministry of labor, which is the general administrative body, has less power over the work of its trade boards than have American administrative commissions over their wage boards. A British trade board has the final power over rate-fixing. An American wage board has power to recommend rates which the commission may declare effective, or modify, or reject altogether. In some states the com- mission may fix minimum rates without the intervention of a wage board. So far the American method is rather a regula- tion by commissions than by wage boards pure and simple. These commissions called minimum wage commissions, industrial welfare commissions, or industrial commissions are usually unsalaried and composed of from three to five persons, one of whom must usually be a woman, appointed by the governor. Their jurisdiction extends over females and male minors up to eighteen or twenty-one (fifteen in Texas), and over all industries, except in Colorado and Arkansas where specified lists exist. Arkansas, also, is one of the few states specifically exempting certain industries, those included being cotton factories, fruit and vegetable canning, and establish- ments employing fewer than four women at the same sort of work. The District of Columbia excepts domestic service, North Dakota domestic service and farm labor, and Texas adds to these classes nurses, student nurses, and students working their way through school. The commissions are authorized to subpoena witnesses, administer oaths, and examine books and papers, and employers are required to 2o8 PRINCIPLES OF LABOR LEGISLATION keep records of the names, addresses, and wages of women and minor employees. If the commission learns by investi- gation which is sometimes compulsory on petition that wages are insufficient to maintain the specified standard of living, it must proceed either to determine a minimum rate or to establish a subordinate wage board for the industry. The subordinate board, which is provided for in all the laws except that of Texas, must be representative of employers, employees, and the "public." Unlike the foreign acts, which provide for the nomination of representatives by employers and employees, American laws generally leave the method of selection to be determined by the commission. The com- mission may, of course, ask both parties to elect, and this democratic method is required in the Minnesota law "so far as practicable." While in theory it has been felt desirable that in the interests of democracy employers and employees should elect their representatives to the wage boards, in prac- tice it has proved exceedingly difficult to depend entirely upon election for securing proper representatives for un- organized workers. Their lack of acquaintance and the fear of losing their places on account of their servipe on the boards make them reluctant to serve, and timicL in -conference. For the present it has therefore been found more effective to leave the enforcing authority free to select representatives from lists submitted by the employees or from those formerly in the trade as well as through election. Employers, also, have often been unwilling to elect their representatives. 1 The subordinate wage board may use the investigations of the commission in determining wage rates or may make further investigations of its own. It must make a report of its work with recommendations to the commission, which may accept the recommendations in whole or in part or may refer them back to the board for further consideration or may convene a new board. When the report of the wage board has been accepted by the commission a public hearing must 1 In Minnesota the commission was obliged to choose representatives of both employers and employees for the wage boards, and to select several of the latter from outsiders. See John A. Ryan, "The Task of Minimum Wage Boards in Minnesota," The Survey, November 14, 1914, p. 171. THE MINIMUM WAGE 209 be held; if after public consideration no change is deemed necessary in the recommendations they are promulgated as orders which become effective in thirty or sixty days. Nearly all the laws grant rehearings on petition of either side. Copies of orders issued by a commission must in most cases be for- warded to the employer concerned, who is required to post them in a conspicuous place. Minimum wage rates may apply either to time or to piece work, and in Kansas, Minnesota, and Oregon orders may be issued for a given locality or area. In Wisconsin the industrial commission has power to classify industries for the purpose of adjusting wage rates. The commissions are authorized to make special exemptions for women, and in Wisconsin for minors also, who are physi- cally handicapped. Special licenses may be issued to learn- ers and apprentices in all states except California, Colorado, and Texas, and in Oregon and Washington the life of these licenses may be limited. In Kansas, minors may be employed at lower rates than adults only by special license. The interests of employers and employees are usually further safeguarded by provisions for a court appeal from the commissions' rulings, the procedure and the subjects for court review being carefully specified. In most of the states rulings may be set aside if unreasonable or unlawful ; in North Dakota, Oregon, and Washington only questions of law may be reviewed, while in Massachusetts an employer may have an award set aside in his particular case by filing a declara- tion under -oath that it would prevent a "reasonable profit.'' In most instances, the findings of fact by the commissions are held prima facie reasonable, and any new evidence must be referred back to them for consideration. The commissions, except in Arkansas, are authorized to enforce their own rulings. Most of the states provide fines of $10 to $100 for employers who fail to pay the minimum wage or who violate any sections of the act or any commission ruling. It has also been found necessary to penalize by a fine of $25 to $1,000 employers who discriminate against employees because they have testified in wage investigations or served on wage boards. In Massachusetts'T'nowever, the commission must rely on the compulsion of publicity to enforce its wage rulings. In that state employers cannot be 2io PRINCIPLES OP LABOR LEGISLATION compelled to pay the minimum, and the only punishment for those paying less than indicated as a minimum is the possi- bility of the publication of their names in a given number of newspapers throughout the state. Such action had not been taken up to the beginning of 1920, and there was at that time a growing movement in the state to make the law mandatory. Certain conscientious employers have joined it, saying that their observance of the awards handicapped them in compari- son with their less scrupulous competitors. Publishers re- fusing to print the names of such employers are liable to a fine of $100. In all other states, employees who have not been paid the legal minimum rate may recover the unpaid balance through a civil suit, which has proved an effective weapon in securing observance of the awards. In America, then, the establishment of minimum wage rates is a long and fairly complicated process. First there is the investigation by the commission, then generally further investigations and deliberation by a representative wage board, next public hearings, and finally a possible court re- view before the minimum rate goes into effect. 5. RESULTS It is still alleged in some quarters that wages are fixed by economic laws, any legislative interference with which can result only in disaster. At present all that can be said is that experience covering twenty years in Victoria and shorter periods elsewhere has failed to confirm these dire predictions. One of the strongest testimonials on the value of minimum wage legislation is found in the extension of the British act to prevent dislocation of wages after the war, following investi- gations of its operation by a subcommittee of the reconstruc- tion committee. It was officially stated that, "The eight years' experience of the satisfactory results achieved by the trade boards, whose activities have proved of benefit not merely to the workers, but to all sections of the trades which worked under them, pointed to an extension of the trade boards act, 1909, as the best means of meeting the situation." l 1 Great Britain, Ministry of Labor, Labour Gazette, August, 1918, p. 308. THE MINIMUM WAGE 211 (i) Changes in Wage Rates Perhaps the first question to be considered is whether the laws have succeeded in raising wage rates. Nearly all the evidence so far collected goes to show that they have. Some instances of failure are known. In Victoria, for instance, it hasPproved difficult to maintain the legal rate in the furniture trade among the Chinese, where neither employees nor em- ployers welcomed the establishment of the wage board, 1 and in England the custom of distributing work through middlemen, and the depression of the industry, led to evasions in the lace-finishing trade. 2 Similar evasions have been sus- pected with regard to homeworkers in the British tailoring industry, 3 But on the whole, in the different countries and in the various industries, the awards of the wage boards have been found to be effective. In Victoria, official reports show, average wage rates increased 7.6 per cent, in thirteen board trades in a period of about five years before awards were made, but 16.5 per cent, in these and in six additional board trades during a similar period after awards were made. In six trades a period of decline in wage rates became a period of advance after the making of awards. During the whole time wage-rate advances in twelve non-board trades amounted to 1 1. 6 per cent. 4 In the English chain-making industry 56.7 per cent, of the male mastermen and 61.3 per cent, of the journeymen earned less than $3.60 a week in 1911. In 1913, after the award by the trade board, only 1.3 per cent, of the mastermen and 0.7 per cent, of the journeymen earned so little. 5 In the branches of the English tailoring trade cov- ered by the trade board, it is estimated that about one-third of the women and between one-fourth and one-fifth of the 1 M. B. Hammond, "Where Life Is More Than Meat," The Survey, February 6, 1915, p. 498. 2 Sixth Annual Report of the Anti-Sweating League, p. 6. 3 See R. H. Tawney, Minimum Rates in the Tailoring Industry, 1915, pp. 202-210. 4 Ernest Aves, Report to the Secretary of State for the Home Department on the Wages Boards and Industrial Conciliation and Arbitration Acts of Australia and New Zealand, 1908, p. 30. 5 R. H. Tawney, Minimum Rates in the Chain - Making Industry, P- 83. 212 PRINCIPLES OF LABOR LEGISLATION men received increases in their earnings. 1 In Washington the industrial welfare commission states that in twenty-four stores, before the minimum wage award, 1,758 women re- ceived less than $10 weekly, while after the award only 561 women received less than $10 weekly, the number of workers remaining approximately the same. 2 A report of the United States Bureau of Labor Statistics on the effect of minimum wage determinations in Oregon retail stores indicated that average weekly earnings of women were 8.6 per cent, higher in the face of a business depression which caused an 8 per cent, decrease in the sales of these stores. 3 A year after its decree in the brush industry, the Massachusetts Minimum Wage Com- mission found that only five, or i per cent., of the employees whose wage records it took were receiving less than the legal minimum. 4 (2) Changes in Wages above the Minimum It is frequently declared that legal minimum wage rates tend to become maximum wage rates, thus injuring those whom they are expressly designed to benefit. This does not, how- ever, appear to be generally the case. Both the chief factory inspector at Melbourne, Victoria, and the secretary of the British Board of Trade declare that as far as their experience goes current wages are not held down to the minimum set by law. 5 The former official even declares that ' ' the average wage in a trade is invariably higher than the minimum wage." In one Victorian industry, clothing, after an award had been in force for six years, wages averaged nearly 20 per cent, higher than the legal minimum. 6 The establishing of minimum rates in the clothing trades in Great Britain led in several districts to trade union action which fixed standard 1 R. H. Tawney, Minimum Rales in the Tailoring Industry, p. 95. 2 First Biennial Report of the Industrial Welfare Commission, State of Washington, 1915, pp. 13, 79. 3 United States Bureau of Labor Statistics, Bulletin No. 176, July, 1915, P. 33- 4 Massachusetts Minimum Wage Commission, The Effect of the Mini- mum Wage Decree in the Brush Industry in Massachusetts, 1915, p. 5. 6 Irene Osgood Andrews, Minimum Wage Legislation, pp. 62-63, 77~78- 6 Henry R. Seager, "Theory of the Minimum Wage," American Labor Legislation Review, February, 1913, p. 89. THE MINIMUM WAGE 213 rates considerably above the legal minimum. 1 In Portland, Ore., also, the United States Bureau of Labor Statistics found that the proportion of women getting more than the legal minimum increased after the law went into effect. 2 In Wisconsin many employers testified that over half of the increase in their pay-rolls due to the minimum wage order was for the purpose of raising the wages of those who were already above the minimum, but who must be paid a higher rate for greater efficiency. (j) Effect on Unemployment It is further argued against minimum wage laws that they force workers out of industry, either because the workers are considered by the employer unprofitable at the legal rate, or because they can be replaced by apprentices or by specially licensed workers at a lower rate, or perhaps because they have been active on the wage boards. While all three abuses have probably taken place at various times, they are not universal and are not inherent in the laws. On the first point, the testimony of the chief factory inspector at Melbourne, pre- viously quoted, is that "this dislocation [of the less speedy workers] is not serious, and that as a rule things regulate themselves fairly satisfactorily." 3 The Oregon investigation made by the United States Bureau of Labor Statistics showed that experienced women workers were neither thrown out of employment by the operation of the law nor supplanted by men. 4 In sixteen brush factories in Massachusetts the total number of women increased from 332 to 334 between 1913, when the first wage investigation was made, and 1915, the year following the minimum wage decree ; the number of men de- creased from 472 to 4i7- 5 The system of issuing special per- mits for less efficient workers to be employed at lower rates, which is provided for by most of the statutes, is undoubtedly helpful in making the adjustment. On the other hand, the 1 R. H. Tawney, Minimum Rates in the Tailoring Industry, p. 96. 2 United States Bureau of Labor Statistics, Bulletin No. 176, p. 33. 3 Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 63. 4 United States Bureau of Labor Statistics, Bulletin No. 176, pp. 8, 9. 6 Massachusetts Minimum Wage Commission, Bulletin No. 7, 1 9 1 5, p. 1 1 . 2i 4 PRINCIPLES OP LABOR LEGISLATION displacement of adult skilled workers by apprentices or by defective workers at a lower rate can be checked by limiting the percentage of employees in any establishment who may work at such lower rates, as is already done in Minnesota with regard to defectives. The matter of discrimination against workers who serve on wage boards is more difficult to handle, although most American laws establish penalties for it. This discrimination is a severe handicap to securing a proper representation of the employees on wage boards. However, this is no serious argument against minimum wage legislation, as the same sort of discrimination often takes place against the leaders of the workers in any concerted move- ment for higher wages. (4) Effect on Industry From the side of employers it is frequently declared that minimum wage laws will put them under such a handicap that they will be forced to move to freer territory or be driven out of industry altogether. Neither seems to have taken place to any appreciable extent. The -officials of the Victorian Chamber of Manufactures and of the Victorian Employers' Association, the two bodies which originally led the opposition to the wage-board system, now declare that they have no wish to see the system abandoned. 1 In 1903 and 1904, eleven of the thirty-eight special boards then in oper- ation in that country were established upon the application of employers. 2 Only a single instance is recorded of a plant leaving the state because of the minimum wage law. 3 In Great Britain, also, in the industries having wage boards, the "employers have not been ruined or even injured in their 1 M. B. Hammond, American Labor Legislation Review, February, 1913, p. 113. 2 Victor S. Clark, The Labor Movement in Australasia, 1907, p. 147. 8 "A brush manufacturer from England, who had recently come to Victoria to establish his business, was so enraged at the idea that the wages he was to pay were to be regulated by law that he moved across Bass Strait to Tasmania. What has happened to him since Tasmania has adopted the same system of wage regulation, I do not know." M. B. Hammond, "The Minimum Wage in Great Britain and Australia," Annals of the American Academy of Political and Social Science, July, P- 3 2 - THE MINIMUM WAGE 215 profits," * and the board of trade reports that it is "not aware of any tendency of manufacturers to transfer their business to foreign countries, or, in cases where lower wage rates have been fixed for Ireland than for Great Britain, to transfer their business from Great Britain to Ireland." 2 The actual cost of the necessary changes is, after all, not burden- some. In Oregon retail stores the increased labor cost was found to be only thsee mills on each dollar of sales. 3 In the Massachusetts ^rush industry both the amount of capital invested and tn^value of the product increased in the year following the decree. 4 (5) Effect on Trade Unionism Certain trade union officials, especially in the United States, have feared that minimum wage legislation would hinder the trade union movement by enabling the workers to secure wage gains without the aid of organization. Their fears have not proved true. Instead, the formation of wage boards has often acted as a stimulus to the organization of unions, through which the workers have in some cases been enabled to make further gains above the legal minimum rate. This is the testi- mony of Australian observers and of the British Board of Trade, and it has been stated that in the experience of Massa- chusetts "the conspicuotis feature is the impetus given to workers in the candy and brush trades to form organizations where none had been before." (6) Effect on Efficiency A final point to consider is whether guaranteeing to every worker a legal minimum wage reduces incentive and output. The preponderance of evidence is that it does not, but that it even has the opposite effect, due in part to the employer's 1 John A. Hobson, "The State and the Minimum Wage in England," The Survey, February 6, 1915, p. 503. 2 Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 78. 3 United States Bureau of Labor Statistics, Bulletin No. 176, p. 10. 4 Massachusetts Minimum Wage Commission, Bulletin No. 7, p. 14. 5 Florence Kelley, "Status of [Minimum Wage] Legislation in the United States," The Survey, February 6, 1915, p. 489. 216 PRINCIPLES OF LABOR LEGISLATION insistence on greater returns for increased wages, and in part to the workers' spontaneous response to the improved rate of remuneration. 1 Some employers in Australia feel that out- put has been reduced in recent years, but they ascribe the de- cline to trade union policy rather than to wage awards, while the employees deny the charge altogether. 2 In England and in the United States it is believed that efficiency has gone up rather than down. Thus the British Board of Trade declares that "there are indications that in many cases the efficiency of the workers has been increased," 3 and the Industrial Wel- fare Commission of Washington concludes that "the whole standard of efficiency and discipline has been raised." 4 In fact, it may be said that the beneficial results of minimum wage legislation have been largely due to the transfer of em- phasis from competition for low wages to efficiency on the part of both employer and employee. Among the better-established results of minimum wage legislation, therefore, may be mentioned (i) that it has raised wages; (2) that minimum wage rates do not in general tend to become maximum rates; (3) that it does not necessarily force workers out of industry; (4) that it does not unduly handicap employers; (5) that it does not undermine trade union organization; and (6) that it does not decrease efficiency. 6. CONSTITUTIONALITY The constitutionality of minimum wage legislation involves a new application of the principle of the police power of the state. While it is an accepted constitutional principle that '"Output per head has increased,' said another [firm]; 'as a general rule the girls work better if they are paid more.' Indeed, the psychologi- cal effect of relatively high and low rates on the workers would appear to be exactly the reverse of that often ascribed to them. So far from low rates 'making them work,' they often produce listlessness and de- spair. So far from high rates 'encouraging slackness,' they stimulate the workers to earn as much as possible while at work upon them." (R. H. Tawney, Minimum Rates in the Tailoring Industry, p. 133.) 2 M. B. Hammond, "Where Life Is More Than Meat," The Survey February 6, 1915, p. 502. 3 Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 78. 4 First Biennial Report of the Industrial Welfare Commission, State of Washington, p. 13. THE MINIMUM WAGE 217 the employee's right freely to contract for the disposition of his own labor cannot be limited except by "due process of law," yet the poliee_4xmer of the state can restrict the free- dom of contract for the protection or betterment of the pub- lic health, morals, peace, and welfare. Enactments of the legislature which reasonably tend to that end have been commonly sustained by the courts. Are minimum wage laws a legitimate extension of this power? The prevailing trend of judicial opinion is that they are. The courts have already sanctioned under the police power principle state interference with the wage bargain by limiting working hours for all classes of employees, and by regulating certain conditions of the wage payment, such as the frequency of payment, store orders, or payment in cash. 1 Justification for state interference to fix minimum wage rates has been sought on the same grounds on which other protective legis- lation has been upheld. In public employment, indeed, it has been frequently de- cided that the legislature may rightfully regulate wage rates as well as other conditions of labor both on direct work and on work done by contractors. On work done by contract the wage regulation has commonly taken the form of stipu- lating that the current rate of wages shall be paid, and the constitutionality of this form of regulation is now well estab- lished. 2 In 1914, moreover, the Washington State Supreme Court sustained a more drastic wage regulation for public works. Spokane had fixed by ordinance a minimum wage rate of $2.75 a day for common labor on all public improve- ments. Though this rate was higher than the current rate for similar work, the court upheld the ordinance even when 1 As early as 1859, i n a wage exemption case, the court said: "The idea underlying the ultimately developed sentiment of the people upon that subject ... is that the citizen is an essential elementary constituent of the state; that to preserve the state the citizen must be protected; that to live he must have the means of living; to act and to be a citizen he must be free to act and to have somewhat wherewith to act, and thus to be competent to the performance of his high functions as such. Hence it would seem, as no doubt it was, a matter of the gravest state policy to invest the citizen with, and to secure to him, those essential perquisites, without which the state could not demand of him at all times his instant service and devoted allegiance." Maxwell v. Reed, 7 Wis. 582 (1859). 2 See Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124 (1903). 2 i8 PRINCIPLES OF LABOR LEGISLATION applied to work done by contractors, as neither unreasonable nor in violation of the public policy of the state. 1 These cases, however, were based on the proprietary power of government, and not on the police power. The legality of state regulation of wage rates in private employments was less certain. It was not until the Supreme Court of the United States, by an even division, left in force a previous decision of the Oregon Supreme Court in favor of the state's minimum wage law that the question was settled. 2 One jus- tice did not vote because he had taken part in the preparation of the brief 3 in favor of the act, so that under the present composition of the court a favorable decision on any subse- quent minimum wage case seems to be assured. The Oregon court took judicial notice of the "common belief" that many women are employed at excessively low wages and that health, morals, and the public welfare are injured thereby. Accord- ingly, the law was held constitutional on the same grounds on which laws restricting the hours of labor for women have been sustained. The court held that "Every argument put for- ward to sustain the maximum hours law or upon which it was established applies equally in favor of the constitutionality of the minimum wage law as also within the police power of the state and as a regulation tending to guard the public morals and the public health." 4 In answer to the argument that the minimum wage law was beyond the police power of the state, the court said: "Such legislation must be taken as expressing the belief of the legis- lature and through it of the people. We think we should be bound by the judgment of the legislature, and if there is a necessity for this act, that it is within the police power of the state to provide for the health, morals, and welfare of women and children and that the law should be upheld as constitu- tional." 1 Malette v. City of Spokane, 77 Wash. 205, 137 Pac. 496 (1913). 2 Stettler v. O'Hara, 243 U. S. 629, 37 Sup. Ct. 475 (1917). 3 The brief is prepared in a similar way to those used in the defense of women's hour laws, and contains a mass of evidence on legislation pro- viding a minimum wage for women, the experience on which such legis- lation is based, and citations to a large number of legal cases bearing on the subject. 4 Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914). THE MINIMUM WAGE 219 In another Oregon case 1 the objection was raised that the act was an infringement of the rights guaranteed by the four- teenth amendment in that it abridged "the privileges or im- munities of citizens." To this the court replied that "The right to labor for such hours and at such wages as would reasonably seem to be detrimental to the health or welfare of the community is not a privilege or immunity of any citizen." The decision of the United States Supreme Court had been followed, up to the beginning of 1920, by favorable verdicts on minimum wage legislation in the four state supreme courts of Arkansas, Minnesota, Washington, and Massachusetts. The Arkansas court, in upholding the state's flat-rate law, pointed out that while the legislature was under obligation not to fix an unreasonable or arbitrary minimum wage, there was no more appropriate standard than the normal needs of the employee, which was the basis upon which the legislature had proceeded. 2 In sustaining the Massachusetts law, the court especially noted the fact that it was not compulsory, and reserved opinion as to the legality of a compulsory law. 3 The Minnesota and Washington cases turned on the police power question, as had those in Oregon. 4 One more minimum wage case was pending at the beginning of 1920. When the Minnesota commission issued its 1918 order of 23 cents an hour for experienced women workers, injunc- tion proceedings were immediately started against the order on the ground that it was arbitrary, not based on facts con- cerning wages and the cost of living obtained through inves- tigation as required by law, and that it was a flat rate fixed without regard to differences in occupations and localities. Whatever may be the outcome of this case, it seems fairly safe to say that the idea of a living wage for all workers has become a popular one. Our minimum wage laws have at least done this they have called the attention of employers, employees, and the public to some of the strange and unrea- sonable inconsistencies and discrepancies which exist in the 1 Simpson v. O'Hara, 70 Oregon 261, 141 Pac. 158 (1914). 2 State v. Crowe, 130 Ark. 272, 197 S. W. 4 (1917). ' 3 Holcombe v. Creamer, 231 Mass. 99, 120 N. E. 354 (1918). 4 Williams v. Evans, 139 Minn. 32, 165 N. W. 495 (1917); Larsen v. Rice, 100 Wash. 642, 171 Pac. 1037 (1918). 220 PRINCIPLES OF LABOR LEGISLATION wage system. They have been one of the most efficacious means of bringing to light facts of industry which are indis- pensable for the intelligent construction of economic and legislative programs. Even those upon whom the burden of readjustment has temporarily fallen admit the undesirability of the present chaotic, anarchistic methods of wage payment. Whether we get away from this ugly situation by means of greater equalization of power through organization of the workers, or by means of public interference to fix a minimum wage, or by means of combinations of both methods, we can feel fairly well assured that the tendency is toward a guaran- tee of standards of living below which no worker must be allowed to fall. Employers complain that when they have turned over to their employees a sum of money to be divided as a bonus, the employees have distributed it on the basis of need rather than efficiency. Skilled employees, on the other hand, might complain that where the public has made awards, the tendency has been to make the rate of increase greater for the lower paid and less skilled workers than for the higher paid employees. In other words, the tendency has been toward equalization, through bringing up the low-paid employee to the standards of the higher. Labor organiza- tions are themselves adopting this policy of taking in the unskilled and looking after their interests. The minimum wage laws are at present in line, therefore, with a general policy and practice which may and do take other and sup- plementary forms, but which are not likely to become less important in the near future. CHAPTER V HOURS OF LABOR Of the many lessons which the world war taught industry, none is more clear-cut than that long hours do not pay. The experiences of the war strengthened the scientific basis for restriction of hours and gave an impetus to legislation. Yet in spite of a general tendency in the United States toward a shorter workday a tendency which made especially rapid progress from 1915 through 1918 the old ideal of "eight hours for work, eight hours for rest, eight hours for what you will" has not yet been realized by the majority of American wage-earners. In 1909, of the 0,015,046 wage-earners enumerated by tne Census of Manufactures, only 7.9 per cent, were employed in establishments where the eight-hour day prevailed. 1 "Pre- vailing hours" for three-quarters of them were from fifty-four to sixty weekly. But no fewer than 344,011, or 5.2 per cent, of the whole number, worked where prevailing hours were between sixty and seventy-two weekly; 116,083 worked in establishments where the seventy-two-hour week prevailed, and 114,118 where the prevailing hours were more than seventy-two. Out of the eighty-six principal manufacturing industries employing more than 10,000 wage-earners in 1909, twenty employed over 10 per cent, of their workers more than sixty hours a week. Among those exacting more than seventy-two hours weekly from several thousand employees were beet-sugar, cement, chemical, glucose, and sugar and molasses factories, coke-works, gas plants, the manufacture of ice and lime, petroleum refineries, blast-furnaces, and rolling-mills. Among railroad employees, also, continuous service for long periods has been very common. Records of the Interstate Commerce Commission show that during the 1 See Thirteenth Census of the United States, Vol. VIII, "Manufactures," pp. 306-313. 2 22 PRINCIPLES OF LABOR LEGISLATION year ending June 30, 1913, 261,332 railroad men were reported as on duty for periods exceeding the legal limit of sixteen hours, and that over 33,000 of them worked more than twenty-one hours continuously. 1 Hours of labor on street railways also extend over excessive periods through the swing run system which employs a man a few hours during the morning rush and then lays him off till the evening rush. During the in- terim he must be on call and usually cannot go home, so that his actual working day extends from the time he reports for duty in the morning till he is through with his last trip at night. Then, too, many employees are working seven days a week. Investigations show that much of the present-day continuous operation of industries involves seven - day labor. For instance, in Minnesota in 1909, 98,558 men, or approximately 14 per cent, of the gainfully employed males in that state, were working every day in the week. 2 In New York in 1910, out of 335,000 union members in a number of specified industries, more than 10 per cent, were engaged in seven-day labor. 3 / Worst of all, many establishments which operate continu- ously, such as iron and steel plants, paper-mills, and glass and chemical works, combine the twelve-hour day with the seven- day week, and in not a few cases require their employees to alternate weekly or fortnightly between day and night shifts, working twenty-four hours without rest when the change is made. So glaring are the evils of this condition that under the auspices of the International Association for Labor Legis- lation a special conference on the subject was held in London in June, 1912, and resolutions were adopted favoring inter- national action to secure eight-hour shifts in continuous in- 'x.dus tries. 4 To be sure, beginning in the spring of rf 19 15 an active move- ment for the eight-hour workday swept the country, which, according to figures compiled by the United States Bureau 1 Interstate Commerce Commission, A Statistical Analysis of Carriers 1 Monthly Hours of Service Reports, 1913, p. 10. 2 Minnesota Bureau of Labor, Twelfth Biennial Report, pp. 104-119. 3 New York State Department of Labor, Bulletin No. 45, September, 1910, pp. 450, 451. 4 Report of Special Commission on Hours of Labor in Continuous In- dustries, 1912, pp. 16, 17 HOURS OF LABOR 223 of Labor Statistics, reduced to eight the working hours of 3,462,000 persons between January i, 1915, and June 30, 1919. The movement began in Bridgeport, Conn., in 1915, when a series of "eight-hour" strikes swept through that hive of war industries, not ceasing until the factories of the city were practically on an eight-hour basis. It spread mainly among machinists in 1915 and 1916, though anthracite coal workers had obtained a straight and railroad employees a basic eight-hour day before the United States entered the war. Eight-hour agitation was strengthened during the war by the government's attitude and by the requirement of eight hours' work on government contracts, even though the latter was regularly waived and overtime at higher rates permitted. "The eight-hour day is an established policy of the country," said the President's personal mediation commission, and the government's chief war-time arbitration agency, the National War Labor Board, was favorable to the principle. Important industries going on an eight-hour basis during the war included the garment trades, the lumber industry in the Northwest, newsprint paper, shipyards, and slaughtering and meat-packing. Following strikes or threats of strikes the eight-hour day was adopted in many textile mills in the early months of 1919. Under modern industrial conditions excessive hours of work break down health. Even with short hours the strain of modern industry, with its speed, its piece work, its division of labor, involving the monotonous repetition of the same process, sometimes even of the same movement, is a heavy tax on the worker. But with the eleven- or twelve-hour day or the seven-day week, a man must go back to his job before he has had sufficient rest to recover from the excessive fatigue of the long work period, and a progressive decline in health results. "In my judgment," said a former official of a large steel com- pany, "a large proportion of the steel-workers, who from early manhood work twelve hours a day, are old men at forty." 1 Though it is the health dangers of long hours which are most often emphasized, the lack of leisure for family life, for recreation, for all the requirements of citizenship, is no less an evil. It should not be forgotten that the time spent in 1 William B. Dickson, former vice-president, United States Steel Corporation, The Survey, January 3, 1914, p. 376. 224 PRINCIPLES OF LABOR LEGISLATION going and coming from work and the dinner hour often add two hours to the length of the workday proper, and that an eleven-hour day is likely to mean thirteen hours away from home. Said a Pittsburgh steel-worker of the results of such a workday, "Home is where I eat and sleep." 1 The ultimate effects of such hours of labor were thus summed up by the Supreme Court of Georgia in upholding a Sunday rest law: "Without specific leisure the process of forming character can only be begun; it can never advance or be completed; people would be merely machines of labor nothing more." 2 Aside from their weaker physique, the "long day " is especial- ly onerous for women workers because of the double burden of domestic duties and wage work which many of them carry. Ordinarily men can rest when their day's toil is over, but there are few working-girls who do not have at least mending and laundering to do in the evenings, and many married women must take the entire care of their homes and children before and after work. Moreover, long hours do not necessarily make for the greatest economy and efficiency in production. It is some- times argued that if hours are reduced output will decline proportionately. This might be true if human beings were mere machines and not living creatures who grow tired. But as a matter of fact, as the English official investigations of fatigue among munition workers once more demonstrated, the law of diminishing returns operates nowhere more strik- ingly than in regard to hours of labor. Studies of output before and after a shortening of hours show that where the human element enters into production hour reductions by no means necessarily imply a decrease in output. For in- stance, as a result of study of the output of munition workers during workdays of different lengths, the British Health of Munition Workers Committee concluded "that for women engaged in moderately heavy lathe work a fifty-hour week yields as good an output as a sixty-six-hour week, and a con- siderably better one than a seventy-five-hour week." 3 1 Quoted by John A. Fitch, "The Steel Industry and the Labor Prob- lem," The Survey, March 6, 1909, p. 1091. 2 Hennington r. State, 90 Georgia 396, 17 S. E. 1009 (1892). 3 Great Britain, Ministry of Munitions, Health of Munition Workers Committee, Final Report, 1918, p. 35. HOURS OF LABOR 225 The whole history of this committee has been of great educational value to officials, employers, and the public, in driving home the fact that excessive hours do not pay. Early in the war, in an effort to increase the supply of munitions, the legal restrictions on the hours of women and children were relaxed, and night and Sunday work and days of twelve to fourteen hours became common for all classes of workers. Yet the supply of war materials failed to meet demands, and claims that the employees were "slacking" were met by countercharges that the workers were being driven beyond human endurance. To advise on the situation the health of munition workers committee was formed, and as a result of its recommendations, as a means of improving output, Sunday work was practically abolished, hours were greatly reduced, and almost all the pre-war restrictions on the hours of women and children were reintroduced. A study undertaken during the war in America by the federal Public Health Service also showed the eight-hour day to be more efficient than the ten-hour day. 1 Similar evidence has been gathered for a number of industries, showing the beneficial effect of short- ened hours and of a full day's rest each week. 2 This increase of output through increased efficiency probably largely ex- plains why wages have seldom fallen, but have frequently even risen, after a reduction of hours, and why the industries in which wages are highest are often those in which hours are shortest. Practical experience, therefore, gives weight to the old eight-hour league slogan: Whether you work by the piece or the day, Decreasing the hours increases the pay. Shorter hours likewise tend to steady employment. When no restrictions are placed on hours of work in a seasonal in- dustry, the tendency is to concentrate the work in a brief busy season with long hours of overtime. Hour regulation, except in the case of perishable products and those subject 1 United States Public Health Service, Public Health Bulletin No. 106, "Comparison of an Eight-Hour Plant and a Ten-Hour Plant," Josephine Goldmark and .Mary D. Hopkins, 1920. 2 See American Labor Legislation Review, December, 1912, pp. 524-527; Felix Frankfurter and Josephine Goldmark, Bunting v. Oregon, Brief for Defendant in Error, 1915, 2 vol. 15 226 PRINCIPLES OF LABOR LEGISLATION to changes in fashion, forces a more even distribution of the work over a longer period. When the woman's eight-hour law was in force in Illinois factory inspectors noted "a greater uniformity of work and rest ' ' as one of its results. 1 The thirty- hour week demanded by the miners' organization in the strike of 1919 was incorporated in their program for the purpose rather of regularizing than of shortening working time. In cer- tain occupations where the time of attendance and not the speed of the worker is the essential factor (ticket-chopping and street-car work, for example), the reduction of excessive hours increases to a certain extent the demand for labor. Aside from voluntary reductions by individual employers there are two methods by which the desirable goal of shorter daily and weekly hours has been reached byjlabor organjzgb tjon and by labor_legisiatiqn. Many workers, prominent among whom in this country are printers, granite-cutters, garment-workers, cigar-makers, and building-trades workmen, have gained the nine- or eight-hour day by organization. But the present prevalence of longer hours of labor in the United States shows that the unions alone have not been everywhere adequate to the task. It has so far proved difficult to form stable labor organizations among women and among some classes of unskilled men workers. In some cases, too, as in the Pittsburgh steel plants, large-scale business has used its power to stamp out labor organization. After a century of effort probably four-fifths of those employed in trade, trans- portation, and manufacturing are still unorganized, and in recent years there has been a growing demand for the protec- tion of unorganized workers by legislation. i. MAXIMUM HOURS (i) Children The first legislative regulation of the hours of labor in this country applied to children. In 1842 a petition was presented to the Massachusetts legislature by certain citizens of Fall River, who pointed out 'that the existing hours of labor must be permanently injurious to the health of children and detri- 1 Report of the Illinois Factory Inspectors, 1893, p. 1 8. HOURS OF LABOR 227 mental to their education, and prayed that prohibitory legis- lation be enacted. The agitation resulted in the passage during the same year of a ten-hour law for children under twelve years of age in manufacturing establishments. 1 In the same year, also, Connecticut enacted a ten-hour law for chil- dren under fourteen in cotton and woolen mills. 2 By the beginning of the Civil War laws limiting the hours of children in manufacturing establishments to ten" a day haJ been enacted in the five additional states of New Hamp- shire, 3 Maine, 4 Pennsylvania, 5 New Jersey, 5 and Ohio. 7 The Connecticut statute of 1842 was, however, superseded thirteen years after passage by a new law which set back the limit to eleven hours, 8 followed within a year by an amendment which Still further lowered the standard to twelve hours a day. 9 Like the first Connecticut law, the early Pennsylvania laws applied only to textile mills, but in the other states the acts covered manufacturing in general. The ages of the children affected varied from twelve in Massachusetts to twenty-one in New Jersey and Pennsylvania. In addition to the states already mentioned, Rhode Island enacted in 1853 an eleven- hour law for children from twelve to fifteen. 10 These early laws were, however, to a great extent unenforced and even unenforceable. The still frequent provision, for example, that only violations committed "knowingly" are punishable, which, to quote a government report, has "put a premium on ignorance and . . . served to balk the intent of so much labor legislation," u originated in the Massachusetts law of 1842 and was copied in New Jersey and Rhode Island. In New Hampshire children under fifteen could work longer than the statutory ten hours if provided with the "written 1 Massachusetts, Laws 1842, C. 60. 2 Connecticut, Laws 1842, C. 28. 3 New Hampshire, Laws 1846, C. 318. 4 Maine, Laws 1848, C. 83. 5 Pennsylvania, Laws 1848, No. 227; Laws 1849, No. 415? Laws 1855, No. 501. 6 New Jersey, Laws 1851, p. 321. 7 Ohio, Laws 1852, p. 187. 8 Connecticut, Laws 1855, C. 45. & Connecticut Laws 1856, C. 39. 10 Rhode Island, Laws 1853, p. 245. 11 Report on the Condition of Woman and Child Wage- Earners in the United States , Senate Document No. 645, 6ist Congress j 2nd Session, 1910, Vol. VI, "The Beginnings of Child Labor Legislation in Certain States," Elizabeth Lewis Otey, p. 78. 22 8 PRINCIPLES OF LABOR LEGISLATION consent of tne parent or guardian." 1 In New Jersey, and in Pennsylvania under the earliest laws, a child could not be "holden or required" to work more than ten hours a day, but if the child worked longer the employer, in order to escape all responsibility, needed only to declare that the extra labor was not required, but voluntary, Ohio even went so far as to legitimatize this subtle distinction by declaring that minors under eighteen might not be "compelled," but that minors under fourteen might not be "permitted," to work more than ten hours. Only in two states were any provisions made for enforcement: in Connecticut constables and grand jurors were to inquire after violations, and in Pennsylvania con- stables could take action but only after complaint. It is interesting to note that the early hour legislation for children resulted almost altogether from interest in education and from the efforts of adult male workers to secure such regulations as a first step toward obtaining similar laws for themselves. Sometimes, also, the men workers undoubtedly believed that restrictions on the hours of women and children would result in decreased employment of these classes of wage- earners, with consequent advantages to themselves. It was not until later that the main emphasis came to be put on the necessity of shortening children's hours to protect the health of the children. The greatest progress in legislation regarding the hours of labor for children has been made in the last decade. Begin- ning with Illinois in 1903, the eight-hour standard for chil- dren under sixteen has been established in the majority of important industrial states. 2 Eighteen states and the District 1 Of this law Horace Greeley said : " Why should ' the consent of the (?) parent or guardian of such minor' 'be allowed to overrule the demands of Justice, Humanity, and the Public weal'? . . . We believe nothing less than a peremptory prohibition of the employment of Minors for more than 10 hours per day, without regard to the consent of parents or guardians, will effect much, if anything. Still, we are willing to see a trial made even of this milk and water enactment." (New York Tribune, August II, 1847.) 2 This standard existed in 1920 under the federal law, reinforced by statutes in twenty-six jurisdictions, namely: Arizona, Arkansas, Cali- fornia, Colorado, District of Columbia, Illinois, Indiana, Iowa, Kansas, .Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Okla- homa, Tennessee, Vermont, Washington, Wisconsin. HOURS OF LABOR 229 of Columbia allow no exemptions from their eight-hour laws for children; but in Washington the law applies only to girls; in Colorado children may be exempted by the judge of the juvenile court; and in Indiana children may be legally em- ployed nine hours a day on affidavit of the parent, giving them permission. Of the remainder of the states, about half have nine-hour laws and half allow work for ten hours a day or more. Only Montana, which forbids factory work for children under sixteen, and West Virginia, do not regulate hours. Some of the southern textile states, however, still allow children to work legally eleven hours a day, and because of lack of en- forcement the hours in some of these states are reported to be even longer. Legislation for shorter hours for children has sometimes been combined with that for women, but at present, except in states where there is an eight-hour law for females, the workday is nearly always shorter for children than for adult women. The child labor laws, however, not infrequently give more protection to young working-girls under sixteen or even eighteen or twenty-one than to working-boys of the same ages. 1 Hour limitations usually apply to all occupa- tions except domestic service, agriculture, and frequently fruit and vegetable canneries. Occasionally the law covers factories, but not stores. The hours during which children may be employed are further regulated by the very common prohibition of night work. 2 Opposition from employers against limitation of hours has been even stronger than against any other restriction on child employment, the common argument being that manu- facturers will not be able to hold their own against com- petitors in neighboring states where longer hours are per- mitted. With regard to the eight-hour day, especially, an additional argument frequently advanced is that it would not be practicable to employ children for so short a period in a plant where adults work a longer day. After eight-hour 1 The absence of any hour restriction for boys along with an eight- hour law for all females in Washington has already been noted. Simi- larly in Ohio the eight-hour law applies to girls up to eighteen, but to boys only up to sixteen years. 2 See "Night Work," pp. 273-277, for a fuller discussion of these pro- hibitions. 2 3 o PRINCIPLES OF LABOR LEGISLATION legislation has been passed, however, it has usually been found that the industries scon adjusted themselves thereto. 1 Finally, partly in order to meet the interstate competition objection, and partly in the interest of more thorough enforcement, the trend is now toward federal regulation, through the taxing power vested in Congress. 2 Since all minors are for certain purposes wards of the state, which is empowered to act for their protection when neces- sary, the constitutionality of state laws limiting their working hours is not questioned. As a minor is legally incapable of entering into a free contract, such laws cannot be said to abridge without "due process of law" his freedom to dispose of his labor. The broad power possessed by the state to regulate the working conditions of minors was thus summed up by the judge in the case of People v. Ewer: "So far as such regulations control and limit the powers of minors to contract for labor, there never has been and never can be any question as to their constitutionality." 3 (2) Women In this country agitation for the limitation of women's hours followed close on the heels of the movement to regulate the 1 In order to ascertain the grounds for the objection that children could not be worked shorter hours than adults in the same factory, a special investigation was made by an agent of the National Child Labor Committee in three states, Ohio, Illinois, and New York, where an eight- hour law for children had been in operation for several years. The re- port of the committee reads as follows: "Information was sought in factories representing the industries in which the largest numbers of children were employed. It was found that children were employed eight hours at the same kinds of work at which they had been employed before the law went into effect, while the adults continued to work for longer hours. With practical unanimity employers reported that they had found no difficulty in readjusting schedules to obey the law and the eight-hour day for children had not been a handicap upon business, and no cases of failure or removal from the state had resulted. On the contrary, the industries involved have steadily grown." (Bulletin National Child Labor Committee, Vol. II, No. 4, February, 1914, p. 44.) 2 After the law had been declared unconstitutional which forbade the shipment in interstate commerce of goods in the manufacture of which children between fourteen and sixteen had been employed at night or more than eight hours a day, a 10 per cent, tax was imposed on the net profits of all establishments falling below these standards. See "Ex- clusion of Persons," p. 336. 3 People v. Ewer, 141 N. Y. 129, 36 N. E. 4 (1894). HOURS OP LABOR 231 hours of children. As early as the 'thirties the labor press had protested against the long hours of work, and strikes for reduction of hours had been called. 1 Naturally enough the agitation centered around the textile mills, as they were the earliest large factories and their working hours were twelve or more daily. In 1834 a delegate discussing the condition of women in factories before the Trades' Union National Con- vention in Boston, said of the mill-owners: "They must be forced to shut their mills at a regular hour; there must be a certain time over which they shall not work, that all the inmates may have an opportunity to rest their weary limbs and to enjoy free and wholesome air." 2 By the 'forties, when many humanitarian movements were rife, the ten -hour cause had made progress and legislative action was asked for. For example, in 1842, 1843, and 1844 petitions asking for a ten-hour law were presented to the Massachusetts legislature. 3 This early movement came al- most entirely from the ranks of the workers themselves, who sought legislation limiting hours for both men and women. Organized working-women played a prominent part in the campaign. The New England Workingmen's Association, an organization of wage-earners, encouraged by a few public- spirited citizens, which soon became the New England Labor Reform League, was active in the agitation. Closely con- nected with it was the New England Female Labor Reform Association, formed in January, 1845, almost all of whose members were women workers in the textile mills and whose activities centered at Lowell. They organized meetings, wrote for the labor press, and petitioned the legislature for the ten-hour day. The association cooperated with other women workers and started branches in Fall River, Mass., Dover and Manchester, N. H., and perhaps other places. In 1 Report on Condition of Woman and Child Wage-Earners in the United States, Vol. IX, "History of Women in Industry," Helen L. Sumner, p. 67. 2 National Trades' Union, September 13, 1834, p. 2. Quoted in Documentary History of American Industrial Society, John R. Commons and Helen L. Sumner, ed., Vol. VI, p. 219. 3 Charles E. Persons, "The Early History of Factory Legislation in Massachusetts," in Labor Laws and Their Enforcement, Susan M. Kings- bury, ed., pp. 24-27. 2 3 2 PRINCIPLES OF LABOR LEGISLATION 1845 the women textile workers of Pittsburgh were unsuccess- ful in a strike for a ten-hour day, but were told by their em- ployers it would be given them when other localities also re- duced their hours. Accordingly, the women wrote to New England for help. The girls of Lowell and Manchester re- sponded and all resolved to work only ten hours after July 4, 1846. But on account of the opposition of the manu- facturers their efforts failed, and they once more tried to secure legislation. These organized women workers first succeeded in New Hampshire, where "by vigorous personal efforts they, more than any other group, secured the ten- hour law of 1 847 , the first of its kind in the country. ' ' l Similar acts were passed in Maine and in Pennsylvania in 1848, in New Jersey and in Rhode Island in i85i. 2 Massachusetts passed no ten-hour law until over twenty years later, per- haps partly because the leaders there insisted on effective legislation, which these earlier measures did not prove to be. These first acts were all of a similar type. They set ten hours as the standard, generally for all workers, for "a day's work" in the absence of "an express contract requiring greater time." 3 In New Hampshire, three days before the law went into effect the manufacturers submitted such express con- tracts to their employees, and though meetings were held and active agitation carried on to prevent the operatives from signing, all who refused were discharged and their places were soon filled by new workers. In Pennsylvania and New Jersey, notably at Allegheny City, Gloucester, and Pater son, the operatives carried on severe and prolonged strikes to secure the enforcement of the laws. They were successful in some, though not in all factories, but where the hours were shortened they suffered a corresponding reduction in wages. On the whole, these early acts "were practically dead letters, owing to their contracting-out clauses." 4 1 Report on Condition of Woman and Child Wage-Earners in the United States, Vol. X, "History of Women in Trade Unions," John B. Andrews, p. 80. 2 Ibid., Vol. IX, "History of Women in Industry," Helen L. Sumner, p. 69. 3 See, for instance, New Hampshire, Laws 1847, C. 488. 4 Report on Condition of Woman and Child Wage-Earners in the United States, Vol. IX, p. 73. HOURS OF LABOR 233 From the 'fifties until after the Civil War, social reform was largely forgotten in absorption in the anti-slavery question. After the Civil War, when the movement for protective legis- lation revived, the laws asked for applied only to women and children, and were of the modern type, forbidding em- ployment in excess of a specified number of hours. The first of these had been passed in Ohio in I852 1 and set a ten-hour day for women workers, but was rendered unenforceable by penalizing only when a woman was compelled to work in ex- cess of legal requirements. As most employees will volun- tarily work for twelve or more hours a day when they cannot find any one to employ them for ten hours, the law became almost entirely inoperative. In Massachusetts, active agita- tion was recommenced by 1864. By that time the women in the mills were largely Irish and French Canadians, who took little or no part in the movement. After strong opposition a bill was passed in 1874 2 limiting the hours of women and minors in factories to ten daily and sixty weekly. But even this law was ineffective because only "wilful" violations were penalized. It was not till i879, 3 when an amendment re- moved the "wilful," that an American state had an enforce- able law limiting the hours of women's employment. By that time also state bureaus of labor and factory inspection were being created in the principal industrial states and were aiding in the enforcement of labor laws. Since that time fairly enforceable hour limitation laws for women have been secured in one state after another. In 1908, when the Oregon ten-hour law for women was upheld by the United States Supreme Court, this legislation was placed upon a secure footing, and since that date the move- ment has gone steadily forward. By 1920 only six states, in most of which comparatively few women were industrially employed, had placed no restrictions on women's hours of work, 4 many had limited hours to eight or nine a day and the majority had a weekly limit of less than sixty hours. Present-day hour legislation for women runs in general 1 Ohio, Laws 1852, p. 187. 2 Massachusetts, Laws 1874, C. 221. 3 Massachusetts, Laws 1879, C. 207. 4 These states were Alabama, Florida, Indiana, Iowa, New Mexico, and West Virginia. 234 PRINCIPLES OF LABOR LEGISLATION along similar lines in the different states. Most statutes fix the same daily and weekly maximum hours for all occupations covered and generally include the principal industrial occupa- tions for women. Thus in Pennsylvania hours in "any estab- lishment" are limited to ten daily and fifty-four weekly, and "any establishment" is defined as "any place within this commonwealth where work is done for compensation of any sort, to whomsoever payable" * except homes and farms. In only a few cases, however, do the laws define the time during which the work period must fall, either by naming the spread of hours allowed, by fixing opening and closing hours, or by forbidding night work. American laws, therefore, seem extremely simple when com- pared with the mass of detail found in European legislation on this subject. General laws exist in most European coun- tries, but either by special statutes or by administrative orders work periods longer or shorter than those of the general law are fixed for many industries and occupations, and frequently even for special processes. This principle is often so far ex- tended as to prohibit entirely the employment of women in kinds of work especially dangerous to their health or safety. For example, the English factory act of 1901 gives the home secretary power to make any limitation of hours whatever or to forbid the employment of any class of workers in dan- gerous trades. 2 On the other hand, in certain cases, as where perishable materials must be handled at once to prevent spoiling, special orders lengthening the permitted period of employment may be issued. 3 In addition, night work is, in general, forbidden, and opening and closing hours, not necessarily the same for every trade, are almost always fixed. The number of employments covered by hour legislation in America appears to depend largely on what occupations public opinion considers dangerous to the health of women. Thus the exclusion of farm work and domestic service from regula- tion is at least in part due to the belief that they in no way endanger health. The earlier laws, both those passed be- 1 Pennsylvania, Laws 1913, No. 466, Sees. I and 3. 2 i Edw. 7, C. 22, Sees. 79-83. 3 1 6- 3 Ibid., Sees. 49-52. HOURS OF LABOR 235 fore the Civil War to fix a standard of hours and the first acts of the modern type, applied mainly to manufacturing estab- lishments. Such a limitation in the scope of the early laws was natural enough. At that time women were employed in large numbers outside the home only in textile factories. The Census of 1870 shows that but i per cent, of all the women ''gainfully employed" were foUnd in "trade arid transporta- tion." It was in the factories that complaint was made of the overlong hours of work, and it was the factory operatives who carried on the bulk of the early agitation for legislation. Thus in New Hampshire the first hour limitation law, passed in 1847, applied only to manufacturing establishments, 1 and the Pennsylvania law of 1848 affected only "cotton, woolen, silks, paper, bagging, and flax factories." 2 Likewise the Massachusetts ten-hour law of 1874 covered only "manu- facturing establishments." 3 It was not until the end of the 'severities, when the number of saleswomen had largely in- creased, that the dangers of constant standing and long hours were noticed and agitation was begun for legislation covering this occupation. 4 In 1883 the Massachusetts law was amend- ed to include "mechanical and mercantile establishments." 5 In the same way, as the field of women's employment broad- ened, the dangers of excessive hours and injury to health were discovered in one occupation after another, and the need for extending protective legislation became correspondingly ap- parent, until, in the laws passed in the last few years, prac- tically every form of industrial employment has been cov- ered at the same time and by the same restrictions. The Illinois ten-hour law of 1909 was one of the first to do this. It includes not only factories, mechanical and mer- cantile establishments, but also any "laundry, or hotel, or restaurant, or telegraph or telephone establishment or office thereof, or any place of amusement, or by any person, firm, or corporation engaged in any express or transportation or 1 New Hampshire, Laws 1847, C. 488. 2 Pennsylvania, Laws 1848, No. 227. 3 Massachusetts, Laws 1874, C. 221. 4 Report on the Condition of Woman and Child Wage-Earners in the United States, Vol. IX, p. 238. 6 Massachusetts, Laws 1883, C. 157. 236 PRINCIPLES OF LABOR LEGISLATION public utility business, or by any common carrier, or any public institution, incorporated or unincorporated." l Similarly in- clusive acts are found in half a dozen other states, and almost every act now covers at least "manufacturing, mechanical, and mercantile establishments." However, when women entered such new occupations as street-car and elevator operation during the war, even the more inclusive of those acts which enumerated any list of specified occupations left the women without protection in their novel field of work. Laws such as that of Pennsylvania, which covers "any place . . . where work is done for compensation of any sort," except " private home and farming," and that of Wisconsin, which gives the administrative authorities power to modify the hour laws, are better suited to meet changing industrial conditions. There are also occasional instances of classification by cities, exempting the smaller places from the operation of the law. The Missouri law of 1909 2 and the Texas law of 1913 3 both applied only to cities of more than 5,000 population. The Minnesota law applies only to first and second class cities (over 20,000 population). 4 Establishments of various sorts employing fewer than three or five persons have also sometimes been excepted. Until 1914 the Louisiana law ap- plied only to establishments employing more than five per- sons. 5 Such exemptions may perhaps also be explained on health grounds. It might be expected that the need for legislation in smaller places would be lessened by a supposed easier pace of work and the greater personal contact between employer and employee. Investigation shows, however, that excessive hours are often worked in small establishments and out-of- the-way places where public opinion is not active, and such exceptions are becoming fewer. 6 Certain exemptions have also been made because of special Illinois, Laws 1909, p. 212. Missouri, Laws 1909, p. 616. 3 Texas, General Laws 1913, C. 175. Minnesota, Laws 1913, C. 581, Sec. i. Louisiana, Laws 1908, No. 301, Sec. i. For instances of bad conditions in the smaller establishments see reports of the New York State Factory Investigating Commission, the Senate Wage Commission for Women and Children in the State of Missouri, the Oregon Social Survey, and similar investigations. HOURS OF LABOR 237 industrial requirements, the most important of which have to do with work in canneries. On account of the perishable nature of the materials, operators of canneries have vigor- ously opposed any legislation which would limit hours of work during the summer months, and because of this opposition a number of states, including most of those in which the industry is important, have allowed women and children to work unlimited hours in this industry. In the degree of restriction placed upon hours of women's daytime labor, many American states have gone further than European countries. Many important industrial states still follow early English and American precedent and fix a daily limit of ten hours, though a majority have reduced the working week to less than sixty hours. In recent years, however, as the eight-hour day movement has spread and standards for protective legislation have risen, several progressive states have limited the workday to nine and even to eight hours. New York is the most important industrial state having the nine-hour day and the fifty-four-hour week, while Ohio adds to the nine-hour day a fifty-hour weekly limit, and Massachu- setts a forty-eight. The eight-hour limits are found in several western states and in the District of Columbia, but only Cali- fornia, Porto Rico, Utah, and the District have the forty-eight- hour week as well as the eight-hour day. 1 1 On January I, 1920, the situation with regard to women's hours was as follows: /. Eight-Hour States: State Hours a Day Hours a Week California 8 4* District of Columbia 8 4 8 * Porto Rico 8 48 Utah 8 48 Colorado 8 Montana 8 Washington 8 Kansas 8* (Basic. Seven hours overtime allowed in emergencies. By rulings of Industrial Welfare Commission) Arizona.... 8 ^ 56 Nevada 8 5$ 238 PRINCIPLES OF LABOR LEGISLATION Most American laws omit one great aid to enforcement in failing to set a legal closing hour. 1 A few states fix the in- //. States Allowing More than Eight but Less than Ten Hours: State Hours a Day Hours a Week North Dakota 81-2 48* Massachusetts 9 48 Ohio 9 50 [81-3 mercantile 50 Oregon \ 8 1-2 office 51 [ 9 any other industry 54 (By rulings of Industrial Welfare Commission) Arkansas 9 54* Maine. 9 54 Missouri 9 54 Nebraska 9 54 New York 9 54* Texas 9 54 -,. [9 manufacturing, etc. 54 Minnesota | ,* mercanti i e> etc. 58 Idaho 9 Oklahoma 9 ///. States Allowing Ten or More Hours: Wyoming 10 5 2 , 60 Connecticut 10 55, 58 Delaware 10 55 Michigan 10 4 Pennsylvania 10 54* Rhode Island jo 54 !S street railway opera- tion 10 other 55* New Hampshire. 10 1-4 54 Vermont 101-2 56 Tennessee 10 1-2 57 Georgia 10 60 Kentucky 10 60 Louisiana 10 60 Maryland 10 60 Mississippi 10 60 New Jersey 10 60* South Carolina 1 1, 12 60 North Carolina 60 Illinois 10 South Dakota 10 Virginia 10 / V. States Having No Laws Regulating Hours of Labor for Women: Alabama, Florida, Iowa, Indiana, New Mexico, West Virginia. In the states marked with an asterisk work is limited to six days a week. 1 In a few states the danger that a woman may be employed by two or more establishments a total length of time in excess of the legal maxi- HOURS OF LABOR 239 cidence of the working day indirectly through the prohibition of night work. 1 In Arizona, Utah, and Wyoming by statute, and in Kansas and Oregon by industrial welfare commission order, the permitted hours must fall within a ten- or twelve- hour period, but as a general rule regulations of the sort are not found in America. Though a number of states still permit overtime work, the general tendency seems to be toward doing away with all such exceptions. In 1909, half the state laws, fourteen out of twenty-eight, allowed a certain amount of overtime work. In 1920, similar exceptions were found in only about a third of the statutes. The actual working of the laws, both in this country and abroad, has shown that all such exceptions are often a decided handicap to the enforcement of the law, being used to cover violations, or that at best they often defeat its purpose by legalizing hours so excessive as to be a danger to health. Therefore the tendency of recent legislation is against overtime work in any circumstances. The conditions under which overtime work is still allowed seem to fall under three main heads. The-Qvertime work on // account of the stoppage of machinery^ allowed in several states, and a few similar exceptions^ are all permitted for the purpose of making up lost time, ^^everal states allow over- time to meet the pressure oiL&peeial- industrial requirements, notably the C^figt-Tn.RS jisb_ i 11 retail $tnxt>r1? The advantages of maintaining one reserve for the industry as a whole instead of separately for each employer, are obvious. Somewhat similar schemes are in force among the dockers of Goole and of Sunderland, the cloth porters of Manchester, and the ship- repairers of Cardiff and Swansea. 4 Under the war-time ex- tension of the United States Employment Service, a similar scheme was started for New York longshoremen, but it had to be abandoned when the service was curtailed. Headway can be made to some extent against seasonal fluctuations also, under the proper encouragement of an effi- 1 R. Williams, The Liverpool Docks Problem, 1912, pp. 10-12. 2 Beveridge and Rey, "Labour Exchanges," Quarterly Bulletin on Un- employment, July-September, 1913, p. 789. 3 See R. Williams, First Year's Working of the Liverpool Dock Scheme, 1914. 4 Beveridge and Rey, Quarterly Bulletin on Unemployment, July-Sep- tember, 1913, pp. 795-799- 21 322 PRINCIPLES OF LABOR LEGISLATION cient labor exchange system. During the winter, for instance, it has been suggested that building laborers could be assisted to take up ice-cutting or logging, or to secure some of the less skilled work in shoe, textile, or other factories which are busier at that season. Through the London employment ex- changes women's work in ready-made tailoring, which is busiest in the spring and fall, has been dovetailed with hand ironing in laundries, which is heaviest during the summer. The Illinois and Pennsylvania laws of 1915 establishing state employment bureaus instruct the administrative au- thorities to take steps toward the regularization of employ- ment, both public and private. Interesting possibilities are suggested by these measures, but in actual practice little, if anything, has been done under them. A more definite induce- ment to the regularization of industry on a comprehensive scale is offered through the establishment of unemployment insurance. 1 1 See "Unemployment Insurance," p. 441. CHAPTER VII SAFETY AND HEALTH + Prominent among the problems which the industrial revo- lution brought in its wake is that of maintaining safety and health in work-places. As long as industry was chiefly agricultural, or carried on about -the family hearth, with tools relatively few and simple, the individual laborer might con- trol the physical conditions under which he worked. But the drift during the late eighteenth and early nineteenth cen- turies from farming to manufacturing, and from homestead to factory methods, placed a growing proportion of wage- earners in a new environment. They toiled now upon prem- ises controlled not by themselves, but by another the em- ployer. Instead of working in isolation or in small groups, hundreds were collected under one roof where the error or illness of one might affect all his neighbors. New machinery, new chemical processes, new forces such as electricity and com- pressed air, have been ceaselessly developed, each involving its own special dangers. Upon all production, speed, the rul- ing spirit of a machine age, has imposed its exactions. Nor have subjective factors been without their influence. Igno- rance, recklessness, and inertia, manifested now by the leaders of technical research, now by the masters of industry, and not infrequently by the workers themselves, have contrib- uted to create a situation in which the statistics of industrial accident and disease are often justly compared with those of the world's great battles. Conservation of the life, health, and energy of our millions of wage-earners is not an individual question. It is a social question, demanding social action. This does not mean that private or voluntary efforts of the workmen, or of industrial managers, or of physicians, should be in any way discouraged. On the contrary, such voluntary efforts should be vastly in- 3 2 4 PRINCIPLES OF LABOR LEGISLATION creased. But the prevention of industrial accidents and dis- eases is too great an undertaking to be left entirely to individ- ual action. Though more than half the waking hours of the ordinary wage-earner are spent at his place of employment, it is one of the fundamental disharmonies of present-day industry that he has little or no control over the conditions which there surround him, and which profoundly affect his well-being and even his life. Individual complaint frequently leads to loss of employment rather than to improvement of conditions. As a member of a labor union the worker's power is potentially increased, but is often, for various reasons, not effectively exerted. Regulation of the physical conditions of employ- ment cannot, on the other hand, be safely entrusted to the individual employer, whose principal business, under com- petitive conditions, is to secure profits. While many em- ployers are exercising the utmost consideration for their work-people out of motives of humanity, and many more are doing so on grounds of efficiency, such motives cannot be said to have developed into a controlling principle of industrial life. Nor can the industrial accident and disease problem be left to medical treatment alone, for prevention and not after-care is the solution. Not only on account of the mag- nitude of the problem, but also because of its nature, the pro- tection of the wage-earner from dangerous conditions of em- ployment is a proper function of government. Frequently it happens that without the aid of uniform legal regulations to force the recalcitrant minority into line, even a vast majority of the manufacturers in an industry are power- less to bring about reforms which they freely admit are de- sirable. A striking example of this was revealed by the three- year campaign which culminated successfully in the poisonous phosphorus prohibition act. Match manufacturers represent- ing 95 per cent, of the total product testified before Congress that they could not substitute a harmless compound for the slightly cheaper poison without a uniform law compelling all employers in that industry to abandon the poison. All of the other match manufacturers, representing the remaining 5 per cent, of the product, stood out stoutly to the last, even ^ declaring that they would close their factories before they SAFETY AND HEALTH 325 would submit to this sanitary measure, already in compulsory operation in practically all civilized countries of the world. It required labor legislation to end the use of this unnecessary deadly poison before "phossy jaw," the most loathsome of all industrial diseases, could be abolished. Legislative activities for the control of industrial accidents and occupational diseases have developed in all important countries along four main lines, namely, (i) reporting, (2) prohibition, (3) regulation, and (4) compensation or insur- ance. All four lines of activity are closely interrelated, and depend for success largely upon one another. Reporting of accidents and diseases is purposeless unless it leads to pro- hibition or regulation of the sources of danger, and is likely to be incomplete if not made part of a proper system of com- pensation administration. Effort for prohibition and regula- tion gropes in the dark without the light of experience made available through thorough reporting, and is apt to be feeble unless stimulated by the cooperative financial pressure exerted by compensation. Compensation, in turn, is deprived, by lack of careful reports, of the necessary actuarial basis for success- ful operation, and accomplishes but the minor part of its pur- pose if the payment of benefits fails to lead to systematic efforts at prohibition or regulation . Upon the combined development of all four devices depends the efficacy of the modern legisla- tive movement for the protection of the industrial worker's life, limb, and health. Leaving the fourth step, compensa- tion, for treatment under "Social Insurance," this chapter will concern itself with the first three methods of attack. i. REPORTING A. While in many matters of social interest the gathering of statistics is well developed, in others only the beginnings have been made. In industry, for example, we know much about the value of the raw materials and of the product, but com- paratively little about the accidents and diseases which are entailed upon the workers in the creation of that product. Yet there can be no more important link in the whole chain of social effort for the prevention of industrial death and disability than the securing of accurate data as to the nature 326 PRINCIPLES OF LABOR LEGISLATION of the hazards, their extent, and the particular industries and establishments in which they are most rife. The acquisi- tion of this knowledge is an integral part of the modern movement for the protection of life and health. It reveals the "sore spots" of industry. Not only does it point out conditions introduced by changing methods in manufacture and elsewhere which call for correction, but after corrective legislation has been secured it acts as a valuable guide to and index of the efficacy of the administrative authorities. Such information, however, until comparatively recent years, had been intelligently sought, if at all, only incidentally by special commissions which investigated some more press- ing phase of industrial abuse, submitted their reports, and disbanded. The idea of a permanent census on the matter is of tardy development. d) Accidents It was not until 1886 that any American state placed an accident-reporting law upon its statute books, and again, as in many other matters of labor legislation, it was Massa- chusetts which took the lead. By the act of June i, 1886, manufacturing and mercantile corporations were required to report to the chief of the district police, the organization which then had charge of factory inspection, accidents occurring in their establishments and causing death or four or more days' disability. A penalty was provided for failure to comply. Four years later the law was extended to apply to all pro- prietors of the designated classes of establishments, instead of only to corporations. Similar statutes were enacted in Ohio in 1888, Missouri in 1891, Rhode Island in 1896, and elsewhere during the same decade. These early laws did not bring satisfactory results. Fees have seldom been offered for accident reports, and employers have appeared reluctant to give their establishments an un- enviable reputation for danger. Official enforcement, too, has been lax. Prosecutions for failure to report have been rare, and the imposition of the stated penalties still rarer. "In none of them," said a federal investigator in 1897, of eight states which then had reporting laws, "is there any pretense SAFETY AND HEALTH 327 that anything like complete returns of accidents are ob- tained." l Since that time, in spite of its shortcomings and inade- quacies, so useful has reporting proven itself as a guide for inspection, safeguarding and advanced legislation, that it has steadily spread not only to new states, but to new branches of 'industry. 2 The kind of accidents to be reported varies great- ly, ranging from all injuries in the more advanced states to only those which result in death or in the incapacity of the injured workman for a stated length of time, as for two days, one week, and in rare cases for two weeks. The time of re- porting is variously fixed at "immediately," twenty-four or forty-eight hours, two weeks, once a month, and, in Louisiana, "semiannually." Accidents occurring to employees under the workmen's compensation acts must usually be reported immediately. Notification by mail on a blank provided by the proper state authority is in most cases sufficient, but in connection with fatal railway and street-car accidents a tele- phone or telegraph report, followed by a detailed written statement, is often obligatory. Reports are usually made to the state department of factory inspection, and a wide range of questions must be answered. A standard schedule adopted for use in important industrial states containing about half the manufacturing wage-earners of the country is divided into sections on (i) employer, place, and time, (2) injured person, (3) cause, and (4) nature and extent of injury, and each section asks a number of questions found by long ex- perience and careful study to be most successful in eliciting the desired information. 3 While much progress has been made since the beginning of 1 United States Bureau of Labor, Bulletin No. 12, September, 1897, P- 565- 2 A standard bill for industrial accident reports, drafted by the Ameri- can Association for Labor Legislation in 1912, has been passed in several states. See United States Bureau of Labor Statistics, Bulletin No. 757, 1915, "Industrial Accident Statistics," Frederick L. Hoffman, p. 151. 3 This schedule was prepared by the American Association for Labor Legislation, and has been indorsed by the American Statistical Associa- tion, the United States Bureau of Labor Statistics, the Workmen's Com- pensation Service Bureau, and the National Safety Council. By October I, 1915, it had been adopted by the labor departments of California, Iowa, Massachusetts, Minnesota, Nevada, New Hampshire, New York, Penn- sylvania, and Washington. 328 PRINCIPLES OF LABOR LEGISLATION the reporting movement in 1886, much remains to be done in the direction of extending and of introducing uniformity into the system. In a few states, and for a limited number of industries, good work is being done, 1 but the failure to cover all dangerous occupations and the wide differences in the meaning of reportable accident still render the data confus- ing and incomparable as between states. For a comprehen- sive view of the situation in all industries and throughout the country dependence must for the present be placed on the more or less scholarly estimates which appear from time to time. What is perhaps the most accurate as well as one of the most recent of these studies is based upon insurance experi- ence with nearly 38,000,000 lives, and places the number of fatal industrial accidents for 1913 at 25,000, and the number of injuries involving disability of more than four weeks at 7oo,ooo. 2 The detailed figures are shown in the chart on the following page. Eight industries, it appears, are more hazardous than ser- vice in the United States Army, and of these mining, with metal mining predominating, is the most dangerous. Rail- roading, electrical work, and quarrying are high on the list, while general manufacturing, including ordinary factory work, is apparently safer than agriculture, in which the in- troduction of power-driven machinery has of late been add- ing peculiar new hazards to those previously involved in the handling of live animals. What these thousands of acci- dents, occurring in every industrial state and country, mean in terms of suffering, interrupted wage-earning, lowering of efficiency and deterioration of standard of living, our com- pensation laws are at last beginning to reveal with something like scientific accuracy. (2) Occupational Diseases Hardly less serious, if any, than the misery and waste caused by industrial accident is that entailed through the more insidious danger of occupational disease. 1 Especially excellent is the reporting work done by several industrial accident or workmen's compensation boards, notably those of California, Massachusetts, New York, Ohio, and Wisconsin. 2 United States Bureau of Labor Statistics, Bulletin No. 157, p. 6. *c e-f s2, & || 5 330 PRINCIPLES OF LABOR LEGISLATION Occupational disease has been defined as "morbid results of occupational activity traceable to specific causes or labor con- ditions, and followed by more or less extended incapacity for work." l American interest in the subject is mainly a product of the last few years. In 1910 it was possible to record only the appointment of the Illinois Occupational Disease Com- mission, the completion of an investigation of phosphorus poisoning in the match industry, and the holding of the First National Conference on Industrial Diseases, an expert com- mittee of which drew up a memorial on the subject for presen- tation to the President of the United States. Practically all of the many interesting American investigations and re- ports on this subject have been made since that time. The principal industrial health risks, as far as we now know them, may be conveniently classified according to their nature as follows: (i) dangerous gases, acids, and dusts (poisonous and non-poisonous); (2) harmful bacteria and micro-organ- isms; (3) compressed or rarefied atmospheres; (4) improper lighting; (5) extremes of temperature and humidity; (6) ex- cessive strain. Almost every calling involves danger from one or more of these. Considering merely the industrial poisons, "those raw ma- terials and products, by-products, and waste products which, in their extraction, manufacture, and use in industrial proc- esses may, notwithstanding the exercise of ordinary pre- caution, find entrance into the body in such quantities as to endanger by their chemical action the health of the work- man employed," we find already prepared a careful list of fifty-four, 2 one of which alone, lead, is in daily use in more than 150 trades, causing "painters' colic," "wrist drop," or even death. Connected with dusty trades of all sorts, from silk-weaving to quarrying, are found non-poisonous dusts which by infiltration and mechanical irritation produce vari- ous occupational lung diseases. Moreover, the bacillus of anthrax may infect tanners and workers on hair goods, while "Memorial on Occupational Diseases," American Labor Legislation Review, Vol. I, No. i, January, 1911, pp. 125-143. United States Bureau of Labor, Bulletin No. 100, May, 1912, "List of Industrial Poisons and Other Substances Injurious to Health 'Found in Industrial Processes," Th. Sommerfeld and R. Fischer, pp. 733-759. SAFETY AND HEALTH 331 ankylostomiasis, or "miners' hookworm," menaces those who toil in warmth and moisture underground. The tunnel and caisson worker dreads compressed-air illness. Less easy to trace, but perhaps even more widespread, are the obscure ailments which may arise in any industry, from insufficient or excessive lighting, from extremes of heat, cold, and humid- ity, or from work too heavy, too persistent, and too intense without adequate periods of rest. Incomplete as is our information on the prevalence and seri- ousness of industrial accidents, even more incomplete is it with regard to specific trade maladies, some of which are now being recorded in our hospitals and dispensaries. The first American law for the compulsory reporting of these diseases was drafted by the Association for Labor Legislation after investigation of similar legislation in England and was enacted in California in March, 1911. Within five years, as the result of vigorous and sustained effort, sixteen states enacted similar legislation. 1 The earliest of these laws called for reports on all cases of anthrax, compressed-air illness, and poisoning from lead, phosphorus, arsenic, mercury, or their compounds, 2 to which were later added brass and wood alco- hol poisoning. 3 The most recent tendency, however, is to make the laws include "any ailment or disease contracted as a result of the nature of the patient's employment," 4 in which form they will probably be productive of more important results. The duty of reporting falls upon the physician, who may be either a general practitioner treating the case, or, in states requiring a monthly medical examination of workers in. special- ly hazardous trades, the physician making such examination. A standard certificate has been adopted in a majority of the reporting states, 5 and requires the name and address of both 1 California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and Wisconsin. 2 California, Laws 1911, C. 485. 3 Connecticut, Laws 1913, C. 14; New York, Laws 1913, C. 145. 4 Massachusetts, Laws 1913, C. 813, Sec. 6. 5 California, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, and Wisconsin. Like the standard accident schedule, this certificate was drafted after careful study by the Associa- tion for Labor Legislation. 332 PRINCIPLES OF LABOR LEGISLATION employee and employer, the nature of the business, the diag- nosis and symptoms of the disease, and other pertinent in- formation. In most cases reports must be made to the state labor department, but occasionally they go to the board of health, which transmits them to the labor department. In a very few cases l a small fee of 50 cents is allowed for send- ing in notices, but even where this is not done it is not felt that any undue hardship has been caused to the medical pro- fession by placing upon them this added duty. Reliable statistical data for the country as a whole are, however, still lacking. Again we must fall back on estimates, and careful American authorities declare, on the basis of Ger- man experience, that numbering our gainfully occupied popu- lation at 33,500,000, no fewer than 284,000,000 days' ill- ness occur annually, causing a social and economic waste of nearly $75o,ooo,ooo. 2 Of this enormous waste fully one- quarter, it is computed, could be prevented by deliberate effort, largely in the direction of greater care and cleanliness in the nation's workshops. Many unhealthful conditions in industry, also, while they may not lead to actual absence from work, are nevertheless productive of unnecessary physi- cal discomfort which reacts badly on the worker's health and strength. The effects of these daily minor drains upon in- dustrial efficiency are necessarily difficult to trace or to meas- ure, but they must in the aggregate be enormous. 2. PROHIBITION The method of prohibition for the safeguarding of indus- trial workers is usually resorted to only under severe provoca- tion. But at times it appears to be the only effective way of removing an intolerable industrial hazard, and instances of its use are multiplying. There are two ways in which the prohibitive method may be applied. First, it may be used to exclude from employ- ment those most susceptible to danger, whether children, women, or certain classes of men. Second, it may be used to outlaw the substances or instruments which render employ- ment dangerous. California and Connecticut, * Mtmorwl on Ocwpttiongl Pww, ' SAFETY AND HEALTH (i) Exclusion of Persons a. Children. Provisions for the exclusion of persons from industrial pursuits have been carried further with regard to children than with regard to any other group of wage-earners, on the general theory that the child is the special ward of the state and most in need of special measures of protection. The dangers thus sought to be guarded against may be to the child's life, limb, health, or morals, 1 and the restric- tions which have grown up are based on considerations of age, physique, and education. (a) Age Requirements. The past century has witnessed an almost complete reversal of public opinion as to the proper age at which children should become breadwinners. With- out scruple, and even in the belief that they were acting charitably, the American colonists received from England as bound apprentices large numbers of orphans and children of the poor, ten to sixteen years of age, some even as young as seven years. Laws were passed to keep these boys and girls profitably employed, partly for the benefit of the community and partly to save them from the dangers of idleness. When manufactures arose Alexander Hamilton approved of them as rendering children "more useful and . . . more early useful than they would otherwise be." 2 These colonial traditions have now gone down before a standard of working age based on the observed harmful effects of premature labor. In 1848 3 Pennsylvania forbade the em- ployment in textile establishments of children under twelve, a standard which it the following year 4 raised to thirteen. Within the next decade a twelve-year limit was established in Rhode Island, 5 and a ten-year limit in New Jersey 6 and Connecticut; 7 in all three states the law covered manufact- ures, and in Connecticut it covered mechanical establish- ments also. In none of these states was any proof of age required, and enforcement was everywhere very lax. The first state to provide a special officer to see that its 1 See, for instance, Kansas, General Statutes 1909, Sec. 5095. 2 Alexander Hamilton, Works, Vol. Ill, p. 207. 3 Pennsylvania, Laws 1848, No. 227. * Ibid., Laws 1849, No. 415. 6 Rhode Island, Laws 1853, p. 245. 6 New Jersey, Laws 1851, p. 321. 7 Connecticut, Laws 1856, C. 45. 334 PRINCIPLES OF LABOR LEGISLATION age restrictions on the employment of children were obeyed was Massachusetts, in its law of 1867.* The previous year, following a report by a commission on hours of labor, a law had been passed forbidding the employment of children under ten years of age in manufacturing establishments. The gov- ernor at his discretion might instruct the state constable and his deputies to enforce the law. It seems, however, that the governor did not see fit to give such instructions, and in 1867, when the act was amended to cover mechanical establish- ments as well as manufacturing, it was made a duty of the state constable to d,etail a deputy to enforce all laws regulating the employment of children. About this same period the national labor organizations became active in demanding the legal prohibition of child labor below a minimum age limit. In 1876 laws against the employment of children under fourteen years of age were advocated by the Working Men's Party at a congress in Philadelphia, and about the same time the Knights of Labor took a stand for the prohibition by law of their employment under fifteen years of age in workshops, mines, and factories. The American Federation of Labor, organized later, indorsed the same standard. Since then many influential societies and women's clubs, as well as labor organizations, have supported and worked for the legal prohibition of child labor. In 1904 the National Child Labor Committee was formed to act as a clear- ing house for information on child labor, to investigate condi- tions, to educate public opinion, and to promote legislation. The result of the work of this national committee and the various agencies that have cooperated with it is a large body of legislation restricting the employment of children. All states now forbid the employment of children in one or more kinds of work until they have passed a fixed age limit. The fourteen-year minimum age limit was by 1920 established for general factory work in all except five states. 2 In most states documentary proof of a child's age is demanded, and working 1 Massachusetts, Laws 1867, C. 285. 2 In 1920 New Mexico, Uth, and Wyommg had no minimum age requirement for general factory work; in Georgia orphans and widows' children between twelve and fourteen might be employed by permission of a commission of three local officials; in Mississippi the age limit was twelve for boys and fourteen for girls. SAFETY AND HEALTH 335 permits or employment certificates must be obtained by the children and placed on file in the establishment before they can be employed therein. The age limit in some of the earliest child labor laws ap- plied only to cotton and woolen factories and to a few other special industries where the evils of child labor were sup- posed to be most flagrant. In other laws the prohibition was general for all work in "manufacturing or mechanical estab- lishments." It is only in comparatively recent years that the minimum age limit for employment has been applied in the majority of states to mercantile establishments and other places of employment as well as to factories. 1 In most states children under fourteen years of age are now excluded from employment in a list of establishments including in addition to factories, mills, workshops, and stores certain other places, such as hotels, restaurants, laundries, bowling-alleys, and theaters, where conditions appear to warrant such exclusion. Nevertheless, most of the state laws are defective in that they fail to cover all the occupations from which children should be excluded. In fact, the rapidly changing industrial conditions render it practically impossible to draw up a list of occupations that will be complete for any length of time, even though it is complete at the time the law is enacted. The ten- dency of those who are experienced in drafting child labor laws now is to use the general term "in any gainful occupation," in- stead of a specified list. Agriculture and domestic service are, however, frequently exempted from this general prohibition. Recognizing that securing protective legislation state by state was likely to be a tedious process, which would result at best in undesirable diversity of standards, opponents of child labor have of recent years turned to federal action. Accordingly, in 1916 Congress enacted a measure which for- bade the transportation in interstate commerce of the products of factories in which children under fourteen had been em- ployed, or in which children between fourteen and sixteen had worked more than eight hours a day or six days a week or at 1 The five states named in the preceding footnote had in 1920 no mini- mum age for employment in stores except the restriction imposed during school hours by the compulsory education law. Florida had a fourteen - year limit for factories, but a twelve-year limit for stores. 33 6 PRINCIPLES OF LABOR LEGISLATION night. The same prohibition was applied to products of mines employing children under sixteen. 1 One day before the act was to have gone into effect a per- manent injunction was secured restraining its enforcement in a North Carolina court district. The person who sued out the injunction was a poor cotton-mill operative who asked not to be deprived of the wages of his two boys. He was repre- sented, however, by counsel from New York and from two North Carolina cities, and the strongest opposition to the measure while before Congress had come from southern mill- owners. The United States Supreme Court, to which the matter was appealed, held the law unconstitutional as an undue extension of the power to regulate interstate commerce. 2 Undeterred by this reverse, the friends of child labor re- striction continued their efforts. In 1919 Congress again enacted the protective standards which had been temporarily overthrown two years earlier. Instead of seeking enforce- ment through the power to regulate interstate commerce, the act was this time based on the taxing power. That is, a pro- hibitive tax of 10 per cent, was levied on the annual net profits of any concern which employed children in violation of the standards named. The same North Carolina federal district judge who enjoined the enforcement of the earlier statute de- clared the second measure also unconstitutional, and at the beginning of 1920 the case was again before the federal Supreme Court. As the "power to tax" has repeatedly been held to include the "power to destroy," it appeared probable that the court would uphold the new act. In so doing it would merely be sanctioning the same method for protecting children against premature or excessive labor that has already been upheld for protecting bankers against undue inflation of the currency, dairy farmers against attractively colored oleomargarine, and workers in the match industry against phosphorus poisoning. 3 1 United States, C. 432, 64th Congress, ist session. 1 Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529 (1918). 3 Even if laws are declared unconstitutional, competent observers be- lieve that the rise of a more far-sighted and scientific spirit among south- ern industrial managers, and especially the spread of organization among the mill population, will soon bring to an end the more flagrant abuses of child labor. See, for instance, Broadus Mitchell, "The End of Child Labor," The Survey, August 23, 1919, pp. 747-750. SAFETY AND HEALTH 337 One of the most important acts of the International Labor Conference which convened at Washington, D. C., under the covenant of the League of Nations in October, 1919, was the adoption of a draft convention prohibiting the employment of children under fourteen years of age in industrial under- takings. Because of the low state of industrial standards in Japan and India, these countries were given considerable time for adjusting themselves to the new requirements. The fact that so much progress has been made in the last decade in the enactment of child labor legislation, and that the fourteen-year limit has been so generally established, especially for factory work, does not mean that premature employment of children is eradicated. There is serious danger that since the most sensational stages in the fight against child labor have passed, public opinion will become apathetic and not perceive the inadequacies of laws that may have at one time been a great step in advance. Unfortunately most of the laws bear the scars of conflicts with short-sighted legis- lators as well as with powerful interests who either looked upon the employment of children as necessary to their prosperity or considered prohibitive legislation an encroachment on their business rights. Exemptions chief of which has been the exemption of the "poor widow's" child and children of "dependent parents," a relic of the days of the Elizabethan poor law have been the curse of child labor laws. In addition to the minimum age of fourteen for entrance to general factory work, many states set a limit of sixteen years for certain more dangerous processes, and in some states an additional two years' maturity is required for en- trance to a number of extra-hazardous occupations. The first group of occupations may include such employments as the cleaning and oiling of machinery, the adjusting of belts, the operation of machine saws or of stamping, washing, grind- ing, and mixing machines, and the manufacture of lead prod- ucts or of compositions containing poisonous acids, 1 while in the second group is work in mines, at blast furnaces, or on railroads, in the outside erection of electric wires, or in the manufacture of explosives. 2 Some states have established 1 Connecticut, Laws 1911, C. 123. 2 Arizona, Revised Statutes 1913, Sec. 3127. 33 8 PRINCIPLES OF LABOR LEGISLATION minimum limits as high as eighteen or even twenty-one for night messenger service or other morally dangerous work. 1 A growing tendency is manifest to give to state boards of health or state labor departments power to add to the lists of dangerous and extra-hazardous employments. 2 Age restrictions for entrance to dangerous occupations have been repeatedly upheld as a valid exercise of the police power, 3 and in some states illegal employment of a child deprives the employer of the defenses of assumption of risk 4 and con- tributory negligence. 5 The provision empowering health authorities and others to extend the lists of prohibited occupa- tions for children of certain ages has been held not to be an unwarranted delegation of legislative authority. 6 All the important countries of Europe possess similar grad- uated restrictions upon engaging in remunerative employ- ment at too extreme youth, and the principle of adding to the lists of prohibited occupations by administrative authorities is well established. Frequently, also, the authorities are per- mitted to allow exemptions from the application of the laws. 7 A serious shortcoming of most of our child labor laws is their failure to deal adequately with child labor on city streets. We have more or less thoroughly prohibited the pre- mature employment of children in factories, stores, and other places, but have inconsistently allowed boys and girls of ten- der years to be exposed to perhaps a worse moral and physical environment in vending newspapers, gums, and other articles on the streets, without sufficient regulation. In 1920 only one or two states, as Kentucky and Maryland, had the same age limit, fourteen years, for all street trades as for other em- ployment. Several states have a fourteen-year limit for boot- 1 New York, for instance, has a twenty-one year minimum for night messenger service (Laws 1910, C. 342). 2 As in Massachusetts, Laws 1913, C. 831, Sees. 4. 6. 3 Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 Atl. 642 (1907). * Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755 (1905). 6 Strafford v. Republic Iron & Steel Co., 238 111. 371, 87 N. E. 358 (1909). 6 Louisville, Henderson & St. Louis R. Co. v. Lyons, 155 Ky. 396, 159 S. W. 971 (1913). r For extended discussions of this matter see Bulletins No. 80 and 89 of the United States Bureau of Labor, on "Woman and Child Wage-Earners in Great Britain" and "Child Labor Legislation in Europe," respectively. SAFETY AND HEALTH 339 blacking and peddling, and a twelve- year limit for newsboys. So far only about half the states l have passed laws regulating the employment of children in street trades, and in these the prevailing age limit for newsboys is twelve years. Because of the additional moral danger to girls the age limit for them is usually four or six years higher than for boys. Suggestions have frequently been made that a uniform age limit for all regular gainful occupations is not scientific, as some children are more mature and fit to work at thirteen years of age than others are at fifteen. No practical method has yet been found, however, of determining the physiological age of children, and the age limit will probably always prove the most satisfactory standard. The purpose of the minimum age is to prevent improper toil before the child has passed the most formative period of adolescence, and also to give the child a chance for a necessary minimum of education. Recent scientific studies of the physical effects of modern in- dustry on children, and recent investigations 2 of the educa- tional needs of children in industry, indicate that the fourteen- year limit is not adequate in either of the above respects. There is .a strong tendency in the more advanced states to eliminate all children under sixteen from industry. Ohio has had for several years a fifteen-year limit for boys and a six- teen-year limit for girls. A law with a fifteen-year minimum age limit was passed in Michigan, 3 chiefly through the efforts of the Employers' Association of Detroit. Industries of the best type are finding that children under sixteen do not pay. Organized labor, also, has taken a determined stand for the sixteen-year minimum age during the months in which the public schools are in session, and for a sixteen-year compulsory 1 In 1920 legislation on this subject was found in Alabama, Arizona, Colorado, Delaware, District of Columbia, Florida, lov/a, Kentucky, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, Porto Rico, Rhode Island, Utah, Virginia, Wisconsin. In Nevada the law merely makes children in street employment subject to the control of the juvenile courts. 2 See, for instance, Child Labor Bulletin, Vol. I, No. I, "Child Labor and Education"; United States Bureau of Education, Bulletin 1913, No. 19, "German Industrial Education and Its Lesson for the United States," Holmes Beckwith; Seattle Children in School and in Industry, published in 1915 by the Seattle, Wash., Board of School Directors. 3 Michigan, Laws 1915, No. 255. 340 PRINCIPLES OF LABOR LEGISLATION education limit. Educators are generally accepting this as the standard that must eventually be adopted. (b) Physical Requirements. While it may be impracticable to substitute a physiological for the ordinary chronological age test, it is nevertheless true that physical development as well as age should determine the child's eligibility for em- ployment. So far state laws have not designated any stand- ard physical requirements, but have merely contained the rather meaningless provision that children must be physically fit. A physical examination of all applicants for certificates was in 1920 required by some dozen leading states. 1 In sev- eral other states the official granting employment certificates is authorized to ask for the physical examination of the appli- cant if he considers him of doubtful health and strength. Because of the lack of definite standards these examinations depend for their value almost entirely on the physician who happens to make them. In New York City, for instance, the physical examination of applicants for certificates is well standardized. Blanks are used in the examination of each child which include not only the height and weight, but a test of the eyesight and hearing, and an examination of the condition of the teeth, the heart, the lungs, throat, and nostrils, and the general physical condition. The same blanks are used throughout the state, but in smaller towns they are usually very poorly filled out. If the physical examination is to be a real test of the child's fitness, the medical examiner must know the prospective place of employment and have a knowledge of the conditions and processes in the various industries in which children are em- ployed. Under the English law, accordingly, the certifying surgeon must examine the child in the factory where he is entering employment, and if the child changes employment he must be re-examined in the same manner. 2 Wherever medical examination of children^ in the public schools is extensively developed, the records of the child's physical progress should 1 Connecticut, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island. The Massachusetts act (Laws 1906, C. 502) was the first of this type. ! Factory and workshop act, 1901 (i Edw. 7, C. 22, Sec. 64 (3).) SAFETY AND HEALTH 341 be kept in such form that they can be compared with the examination at the time the child proposes to leave school. In smaller cities the simplest arrangement is for the school medical examiner to make the examinations of children apply- ing for certificates. In New York state, where certificates are issued by the boards of health instead of by the public schools, the examinations are, of course, supposed to be made by the health officers, or under their supervision, and there is seldom any cooperation with the school examiners. A single examination at the time of application for em- ployment certificates will not, however, even when it has been put on a more scientific basis than at present, be sufficient protection for the health of working children. In order that children may not be injured by the work they do, examina- tions must be repeated periodically. New York has recog- nized this fact by establishing a corps of medical examiners under the department of labor, who have authority to exam- ine children in any industry, and on their recommendation the employment certificate of any child found to be unfit for the work he is doing is canceled. This provision will prob- ably be embodied in the laws of other states as public opinion gradually comes to realize the necessity of safeguarding the child's health after he has entered industry in the same way as is now being done to a large extent up to the time that he leaves school. (c) Educational Requirements. Merely to compel the child to go to school until it is fourteen years of age does not guar- antee the attainment of any definite minimum of education. Hence a number of states forbid the employment of children who do not come up to certain standards of knowledge. These standards, however, vary considerably. About half the states require only that applicants for employment certif- icates be able to read and write English. Illinois requires liter- acy, but not necessarily in English. Several states require the attainment of certain grades in the public schools, or equivalent instruction. Completion of the eighth grade is now the standard in nearly half the states. Several states require attendance at school for a minimum period either during the year previous to the birthday at which the child becomes o!4 enough to go to work, or during the 342 PRINCIPLES OF LABOR LEGISLATION year previous to the time the certificate is issued. This required period of attendance may vary from the entire school year to twelve weeks or less. Instruction in certain specified subjects, usually reading, writing, spelling, geogra- phy, and arithmetic through common fractions, is required in some states. The provision that children who have been granted "work- ing papers" but are under sixteen years of age shall attend school unless regularly employed is common, but little atten- tion has been paid to its enforcement. Once an employment certificate has been secured the child is usually forgotten by the school authorities, unless the law requires that the certifi- cate be sent direct to the employer and returned by him to the issuing office when the child's employment terminates, the certificate at no time becoming the property of the child. The principal benefit of such a provision is that it tends to check children from leaving school to enter temporary "blind alley" jobs. Much of the time of the child under sixteen who drifts from one dull, monotonous job to another is wasted, as far as education and training are concerned. Consequently the completion of the eighth grade seems little enough schooling to require of children who go to work under sixteen. (d) Special Problems in Enforcing Restrictions on Child Labor. Difficult as it has been, and still is, to place comprehensive child labor laws on the statute books, it is even more difficult to build up their effective administration. The principal agencies for the enforcement of child labor laws are the departments of labor, the school authorities, and income states the boards of health. Probation officers and private child welfare agencies may sometimes aid. In some states special child labor inspectors are appointed; in fact, factory inspection has usually begun with the enforcement of the child labor law before other labor legislation was estab- lished. In all cases, however, enforcement rests primarily with the factory inspection organizations. Few, if any, states have an adequate corps of inspectors, 1 and in the southern states, where the child labor problem is 1 See Chapter IX, "Administration," p. 451. SAFETY AND HEALTH 343 most serious, the provision for enforcement is most meager. 1 The experience of state after state has demonstrated that without official inspection child labor laws are dead letters. % The issuance of employment certificates is the first step m the administration of the minimum standards for entrance to industry. In most states where certificates are required they are issued by the local school authorities. In New York they are issued by the boards of health, which has proven very unsatisfactory for the state as a whole, as the health officers are for the most part poorly paid and busy with their other duties, and look upon the issuing of certificates as a tedious task thrust upon them without compensation. In a very few states no employment certificates are required, the affidavit of the parent being accepted as proof of age. 2 Under the prevailing method of issuance through the school authorities uniformity is secured by the use of standard blanks throughout the state, by regular monthly or more frequent reports either to the commissioner of labor or to the state superintendent of education, and by a certain amount of centralized supervision on the part of these officials. This method is the most practical because the school office is the most convenient place for the children and their parents to go to obtain the certificates; because the local school authority knows the child through his record or through personal con- tact, and thus there is less likely to be falsification in regard 1 In North Carolina the commissioner of labor statistics had, until 1919, no power to inspect if the employer chose to prevent him. In Alabama the enforcement of the child labor law has been entrusted to the state prison inspector, who must divide his time with the inspection of jails and almshouses. An investigation made in Mississippi by the National Child Labor Committee in 1914 disclosed in nearly every factory in the state wholesale violations of the law passed in 1912, which by way of,, enforce- ment merely provided that the county sheriffs were to inspect the fac- tories "at least once each month," and the county health officers to in- spect "at least twice each year." Only two of these local officials were found who had ever been inside the places they were supposed to inspect, and not a single one knew the provisions of the law. Those who had paid any attention at all to it had contented themselves with naively asking the owner of the mill if he was living up to the law. (See Child Labor Bulletin, Vol. II, No. 4, February, 1914, "The Majesty of the Law in Mississippi," Edward N. Clopper.) Following the exposure the Missis- sippi legislators finally passed a law providing a factory inspector. 2 In 1915 there were seven states in this class. By 1920 they had been reduced to two Mississippi and Wyoming. 344 PRINCIPLES OF LABOR LEGISLATION to age; and because the local school authority is likely to be much more interested in keeping the child in school and will make more of .an effort to point out the inadvisability of al- lowing it to leave for some temporary and unnecessary em- ployment. The enforcement of the compulsory education law, also, is so closely connected with the enforcement of the child labor law that the two should be coordinated under the school authorities in each community. The same sets of records are necessary for the issuance of certificates and for the enforcement of the compulsory education law. The school census, the record of the child's age on entering school, and its progress in school are equally important to the enforce- ment of both laws. Applicants who have been refused employ- ment certificates should be reported at once to the school at- tendance department in order that they may be returned to school, and the names of all children to whom certificates have been granted should be reported to the principals of the schools. In the regulation of children's work in street trades, badges to be worn conspicuously and renewed annually have been found essential to enforcement, and the responsibility for adminis- tration rests chiefly with the educational authorities. Cooperation between the child labor inspectors and the schools is necessary that both may discharge their respon- sibility to the best advantage of the child. A careful issuance of employment certificates and a thorough enforcement of the compulsory education law make the work of the labor inspector much easier. It is desirable, furthermore, that truant officers have the power to inspect establishments where children are employed, and they should be the local represent- atives of the state child labor inspectors, reporting to them all violations and aiding them in getting evidence to bring prosecutions. The actual presentation of evidence in the courts should always be done by the state inspector, who is free from local pressure. The important provisions of what has been called a model law in regard to employment certificates are as follows : 1 /.No child under sixteen should be engaged unless the child presents to the employer an employment certificate, which 1 Practically the provisions of the Ohio law (General Code, 1910, Sees. 7765-7770. SAFETY "AND HEALTH 345 should be kept on file during the child's employment and re- turned to the issuing office when the employment terminates. These certificates should be issued only by the local super- intendent of schools, or by some one designated by him in writing, and should be given only after the following docu- ments have been received and placed on file: (1) The pledge of the employer that he expects to employ the child and will return the certificate to the issuing office as soon as the child leaves his employ. (2) The child's school record, stating the age, ability to read and write, and school grade, signed by the principal of the school that the child last attended. (3) Evidence of age, in the following order: (a) birth cer- tificate; (b) baptismal record or passport; (c) school record or other documentary evidence; (d) in the absence of anything else, affidavit of the parent, with one or two disinterested citizens. The child should personally appear before the issu- ing officer for examination, and the officer should satisfy him- self that the child is at least fourteen years of age, is able to read and write English, and has had a course of instruction equivalent to seven yearly grades in the public schools. (4) A certificate from the school physician, board of health, or a licensed physician appointed by the board of education, in the order named, showing that the child is physically able to do the work for which it is to be employed. The certificate should be transmitted by the issuing officer to the employer, and should not at any time come into pos- session of the child, to be used as a license for idleness. The blanks should be furnished by the state commissioner of labor, to whom should be sent monthly a list of the names of chil- dren for whom certificates have been issued, returned, or re- fused. Such lists should give the names and addresses of the prospective employers and the nature of the occupations in which the children intend to engage. Factory inspectors and truant officers should be empowered to demand that certificates be obtained to prove the age of children apparently under sixteen who claim to be over that age. 1 1 The federal Children's Bureau publishes from time to time thorough investigations of the administration of child labor laws in various states, pointing out the strength and weakness of the laws* 34 6 PRINCIPLES OF LABOR LEGISLATION Even more for the sake of uniformity in enforcement than for uniformity in restrictions on child labor, federal legislation is needed. The plan of the law on this subject enacted by Congress in 1919 was to place the enforcement in the hands of the federal internal revenue office, whose inspectors would be free from local bias or pressure. The work of these in- spectors, it is believed by those who promoted the bill, will not obviate the need of state factory inspectors or of interest in the enforcement of the law by local school officials and others, but it will support the local authorities and aid them in resisting any influences which might be brought to bear to prevent them from prosecuting for violations. Advocates of the measure believe, also, that the federal courts will be more likely to find against a man who violates a federal law regarding the employment of children than the local courts are to convict for violation of state laws. This would be an important gain, because it is not at all an uncommon thing for the state factory inspector to have a case dismissed by the judge after the most careful evidence has been presented, merely because the judge does not see that any great injustice has been done the individual child. For the better enforcement of child labor laws cooperation between all the different agencies that are interested is es- sential. The standards which have been and will be established in regard to the entrance of children into in- dustry will never be thoroughly enforced until the problem of administration is taken up with the same enthusiasm and persistence which have marked the campaigns for legis- lation. b. Women. The exclusion of women from various branches of industry is based primarily on their inherently weaker re- sistance to certain health dangers, and sometimes upon moral grounds or upon their special need for protection at certain periods, as just before and after childbirth. Legislation to this end is much less extensively developed in America than in Europe. (a) Prohibited Employments. In America almost all laws forbidding the employment of women in designated occupa- tions or under designated conditions relate to work in mines and saloons. Work in mines is forbidden to women in most SAFETY AND HEALTH 347 / of the mining states, 1 and work in saloons (except by mem- bers of the family) in about fifteen states, 2 but in neither of those occupations has the problem of female labor been as serious as it is in England and in some other European coun- tries where similar prohibitions are in force. In addition, a few scattered provisions of various sorts are found. Two or three states have forbidden the employment of women in cleaning moving machinery. 3 Arizona forbids the work of women "in any capacity " in which they must remain standing constantly, 4 and New York and Ohio forbid women to oper- ate certain kinds of emery and other polishing wheels. 5 New York also forbids the employment of women coremakers in foundries if the cores are baked in the room where they are made. 6 In Europe the evil effects of certain kinds of work are mucn better known than in this country, and it is well recognized that even the most careful regulation of working conditions in these occupations would not suffice to prevent injury to the health of women employed therein. Accordingly, European legislation forbids the work of women in a fairly wide list of occupations, most of which involve the presence of dusts, fumes, vapors, gases or substances of a poisonous or clearly harmful character. Among women workers in white lead, for instance, it was discovered that a serious derangement of the reproductive organs frequently occurred, and that the per- centage of miscarriages and still-births among married women was exceedingly high. Therefore, in most European countries, and also in Argentina, women are forbidden to work in the dangerous processes in which this poison is used. The Inter- national Labor Conference of 1919 recommended the exclusion of women, as well as of children under eighteen, from work in 1 Alabama, Arizona, Arkansas, Colorado, Illinois, Indiana, Maryland, Missouri, New York, Oklahoma, Pennsylvania, Utah, Virginia, Wash- ington, West Virginia, Wisconsin, Wyoming. 2 Connecticut, Idaho, Iowa, Louisiana, Maryland, Michigan, Missouri, Montana, New Hampshire, New Mexico, New York, Ohio, Texas, Utah, Vermont. 3 Louisiana, Minnesota, West Virginia. 4 Arizona, Revised Statutes 1913, Sec. 3115. 5 New York, Laws 1913, C. 464; Ohio, General Code 1910, Sec. 1027; 15 (as amended by Laws 1911, p. 428). 6 New York, Laws 1913, C. 464. 34 8 PRINCIPLES OP LABOR LEGISLATION v a number of dangerous lead trades. In France females are forbidden even to enter a place in which any one of forty-six especially dangerous processes is carried on, and nearly one hundred additional occupations are forbidden except under special protective conditions. Similar lists are found in the more important European countries and even Spain, long backward in social legislation, has forbidden the employment of women and minor children in a long list of occupations. While it is true that women in foreign countries often engage in work done only by men in this country, yet many women are undoubtedly at work here in industries so dangerous to their health that an extension of prohibitory legislation is urgently needed. (b) Childbirth Protection. It was not until 1911 that the prohibition of the industrial employment of women for a stated period before and after childbirth became the subject of legislation in America. Such statutes were passed by Massachusetts in 1911, New York in 1912, Connecticut and Vermont in 1913, and Missouri in 1919. The Massachusetts act is a representative one. It forbids "knowingly" employ- ing any woman in "a manufacturing, mechanical, or mercan- tile establishment" within two weeks before or four weeks after childbirth. 1 The desirability of such additional protection for working- women at the time of childbirth has been recognized by most European countries and by several outside of Europe. The prohibited period is generally similar to that found in America, from two to four weeks before and from four to six or eight weeks after confinement. The International Labor Confer- ence in Washington in 1919 drew up a draft convention pro- hibiting industrial employment of women for six weeks after childbirth, and permitting them to leave work, if they wished to, six weeks before confinement. European laws are rendered more effective than the American by their frequent connec- tion with provisions for maternity insurance. 2 For instance, under the German system of health insurance, a woman worker is paid benefits of half -wages for two weeks before and six weeks following confinement, or longer if she is unable to 1 Massachusetts, Laws 1911, C. 229. 2 See "Maternity Insurance," p. 422. SAFETY AND HEALTH 349 return to work at the end of that time. Such insurance is needed partly to make up for the income loss during the en- forced period of idleness, and may also be an important aid in the enforcement of the law. The necessity for such law in effective form is, however, undoubtedly less in this country than abroad, where the employment of women with young children is much more frequent. c. Men. Legal regulations for the exclusion of men from dangerous employments are never of universal application, as they are in the case of children and women, but are limited to certain classes or groups of individuals who must be ex- cluded on definite grounds, usually ascertained by examina- tion. The grounds of exclusion may be either physical or technical. Although the distinction does not always hold, physical requirements are in the main, intended to protect the worker who is debarred, while in the case of technical qualifications the protection of fellow-workmen or of the gen- eral public is an added if not the main consideration. Physi- cal qualifications, also, are usually concerned with health; technical qualifications with safety. (a) Physical Qualifications. Physical qualifications estab- lished by law are of four kinds: (i) reasonable immunity from the trade malady characteristic of the employment; (2) free- dom from a trade malady contracted in the course of em- ployment; (3) freedom from a contagious disease which might be passed on to other workmen or to consumers of the product ; and (4) freedom from physical defect of such nature as to interfere with the proper performance of duty. It will be noted that the first two qualifications look toward the health of f the workman himself, and that the last two look mainly toward the health and safety of other persons. The qualification of immunity from a particular occupational disease was found in 1920 in only four American states, but is more common abroad. The New York, 1 New Jersey, 2 and Pennsylvania 3 statutes and the Massachusetts administra- tive order regulating work in compressed air require that ap- plicants must be found physically qualified by a physician 1 New York, Laws 1909, C. 291. 2 New Jersey, Laws 1914, C. 121. ^Pennsylvania, Laws 19171 No. 364, 350 PRINCIPLES OF LAB (^LEGISLATION' paid by the employer, and these laws also exclude persons addicted to the excessive use of intoxicants. In Europe examinations for entrance to compressed-air work are re- quired in France % and in Holland, the latter country specify- ing a long list of* ailments, such as obesity, heart or lung dis- eases, and affections of the nose and ears, any one of which debars from the work. Austria bars from work in paper-mills all workers with open wounds, persons with delicate respira- tory organs, and consumptives. Still more common is the requirement of a medical certificate of fitness as a condition of entering the more dangerous lead trades, which is found in Austria, France, Germany, Great Britain, and Russia. Ger- many specifically prohibits the employment in these trades of applicants with lung, kidney, or stomach trouble, a generally weak constitution, 04 an addiction to alcohol; France, of those who exhibit syirf^oms of lead poisoning or of any complaint likely to be dangerously aggravated by plumbism. Belgium also forbids the employment of alcoholics in the white lead, lead oxide, or lead paint trades. It is obvious, however, that merely debarring from entrance to an unhealthy trade those demonstrably susceptible to its dangers is insufficient protection. The worker's real power of resistance to a specific hazard often cannot be determined until he has been exposed to it, and if he begins to show symptoms of succumbing he cannot be too quickly removed. Hence arises the necessity for the second qualification, free- dom from a trade malady contracted in the course of em- ployment. . Most common occupational diseases are of such slow in- ception that a capable physician can detect them in the early stages before their cumulative effects have become serious. To make sure, therefore, that the originally healthy employee is in fact successfully resisting the risk with which he is sur- rounded, the initial examination, when it is given, must be supplemented by periodical re-examinations at intervals grad- uated according to the degree of risk. Sometimes periodic examinations are required even when there are no restrictions upon entrance to the trade. Such is the case with the monthly examinations required under the "lead laws" of the important lead-using states. SAFETY AND HEALTH 351 The Ohio l and Pennsylvania 2 laws apply to the manufacture of certain of the more poisonous lead salts, such as white lead, red lead, and arsenate of lead (Paris green) , while the later New Jersey 3 statute covers also the manufacture of pottery, tiles, or porcelain-enameled sanitary ware in so far as lead is used. In all three of these states the physician who discovers a case of lead poisoning must report it not only to the state departments of labor and of health, but also to the employer, who after five days must not continue the "leaded" employee in a dangerous process nor return him thereto without a physician's written permit. 4 Provision for regular re-examination is also found in the three American compressed-air laws already mentioned. Under these the examination must be repeated after the first half- day's work, on returning to work after ten days' absence from any cause, and after three months' continuous employ- ment, and workmen who have ceased to be qualified must be excluded. In the more dangerous lead trades workers are subject to regular examination in nearly all European countries. Eng- land and Germany, moreover, require examinations both in alkali chrome works, where corrosions of the mucous mem- brane are common, and in rubber vulcanizing works, where there is danger from the noxious gas bisulphide of carbon. France requires similar examinations in compressed-air work. The frequency of examination varies from once a week in the British white lead industry, to every six months among German painters, although once a month, as in the American lead trades, is the most usual period. In the Netherlands stone masons are entitled to medical examination at the em- ployer's expense once a year. In order that the advantages of cumulative experience may not be lost, a factory record of the results of medical examinations, especially if they result 1 Ohio, Laws 1913, p. 819. 2 Pennsylvania, Laws 1913, No. 851. 3 New Jersey, Laws 1914, C. 162. 4 Similar laws in Illinois (Laws 1911, p. 330). and Missouri (Laws 1913, p. 402) cover wider ranges of related industries, including zinc smelting and work with arsenic, brass, mercury, and phosphorus, but do not re- quire the removal from danger of workmen who show symptoms of the resultant diseases. 352 PRINCIPLES OP LABOR LEGISLATION in findings of disease, is nearly always required, and must usually be kept by the examining physician. 1 The third physical qualification, absence of contagious dis- ease, is applied occasionally in bakeshops 2 and in other food establishments, 8 while the fourth, freedom from physical de- fect which might interfere with proper performance of duty, is mentioned in a few states which require an examination of railroad employees for color-blindness or other defective sight. 4 (6) Technical Qualifications. Far more numerous than the examinations to test an adult workman's fitness for a given occupation upon physical, or health, grounds, are those re- quired in nearly all states for the licensing of men to carry on certain trades after a test of experience, skill, or general education. Laws for the examination and registration of barbers, 5 horseshoers, 6 plumbers, 7 electricians, 8 moving-picture machine operators, 9 chauffeurs, 10 railroad, 11 street-car, 12 and steamboat 13 employees, elevator operators, 14 and even aero- nauts, 15 are designed primarily for the protection of the pub- 1 In Germany this record is called a "control book," and must con- tain the name of the person keeping it, first and last name, address and age of each workman, date of his entering and leaving the employment, date and nature of his illness, date of his recovery, name of the factory physician, and dates and results of the medical examinations. The em- ployer is responsible for the correctness of the record, and must show it to the factory or medical inspector on demand. The Austrian health register goes into even more detail. * See, for instance, Connecticut, General Statutes 1902, Sec. 2570. 'Maryland, Laws 1914, C. 678, Sec. I (e). 1 For example, Ohio, General Code 1910, Sec. 12548. 6 Found in 1920 in fifteen states. Found in 1920 in four states and in Hawaii. These laws have been declared unconstitutional in Illinois, New York, and Washington, as unduly interfering with a calling not requiring regulation on grounds of public health and comfort. 7 Found in 1920 in twenty-four states, the District of Columbia, and Porto Rico. 8 Found in 1920 in three states. ' Found in 1920 in six states. 1 Found in 1920 in twenty-three states and in the Philippine Islands. 1 Found in 1920 in seventeen states. ! Found in 1920 in only three states Louisiana, New York, and Washington. u Found in 1920 in the United States, eight states, and the Philippine Islands. 1 Found in 1920 in Minnesota alone. 16 Found in 1920 in the one state of Connecticut, Laws 1911, C. 86. SAFETY AND HEALTH 3-53 He, and need only be mentioned. 1 More closely related to the subject are technical examinations for miners and for firemen and engineers in charge of stationary boilers. Statutes requiring the examination and registration or licensing of certain classes of coal mine employees exist in practically all of the important mining states. 2 Managers, foremen or bosses, fire bosses, mine-examiners, and hoisting engineers are the employees for whom licenses are usually required, but some of the newer laws cover all miners, each of whom, however, is allowed one unlicensed apprentice. 3 Can- didates must present affidavits attesting their good character and sobriety, must have a specified number of years' experi- ence, must be residents of the state, and must pass the exami- nation prescribed by an examining board. The increase of foreign-born workmen among the miners is reflected by the growing number of states which require ability to read and speak English. 4 A fee ranging from $i to $5 is charged for the examination and license. The examining boards are com- posed of from three to five men, one of whom is usually a state mine inspector, the others being miners and mine- owners or. superintendents in equal number. Finally, in a number of states 5 and in the District of Colum- bia no one may serve as fireman or engineer in connection with a stationary boiler who has not been found qualified by a state or local examining board. Moral character and tem- perate habits, one to three years' experience, and a minimum age limit are specified in a few instances, and the license is generally revokable for negligence, intoxication, or violation of law or regulations. Because they fear loss of employment if found to be suffer- 1 Similar in intent is the Wisconsin Industrial Commission order of 1917, fixing standards of technical skill for bricklayers as a prerequisite for giving a certificate to apprentices in the trade. 2 Such statutes existed in 1920 in the fifteen states of Alabama, Colorado, Illinois, Indiana, Iowa, Kentucky, Missouri, Montana, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Virginia, and Wyoming. 3 Illinois, Laws 1913, p. 438, Sec. I. 4 See, for example, Kentucky, Laws 1914, C. 79, Art. XVI, Sec. I. 5 In 1920 licenses for stationary firemen and engineers (exclusive of those in mines) were required in the eleven states of Georgia, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Jersey, Ohio, and Pennsylvania. Many cities also require licenses under city ordinances. 23 354 PRINCIPLES OF LABOR LEGISLATION ing from some disqualifying ailment, workmen have at times protested against medical examinations conducted by the em- ployer. Aside from possible abuse of such information, how- ever, the advantages to be gained by the workman through exclusion or timely removal from a disease-breeding occupation would outweigh the hardship due to temporary loss of wages while awaiting recovery or securing other work. Even the wage loss, when exclusion is due to illness, can be in large part taken care of by the extension of workmen's compensation to embrace occupational diseases and by the institution of systems of universal health insurance. l For the physician, also, the practice of examining large bodies of men at the place of employment will lead to added insight into the trade causes of disease, an insight which unfortunately is as yet only rudimentary. In any compulsory system of medical exami- nation the physician should be employed by the state. (2) Prohibition of Substances or Instruments The most notable example of the application of the method of prohibition to a dangerous substance is the world-wide banishing of poisonous phosphorus from the match industry. Within eleven years after the commercial introduction of the phosphorus match in 1827 the disease known as " phossy jaw, " or phosphorus necrosis, was attracting the attention of govern- ment investigators. Various efforts to eliminate the disease by regulation having signally failed, Finland in 1872 forbade the use of white phosphorus in match factories, and similar action was taken by Denmark in 1874. In France, where match-making is a government monopoly, the profits from the industry were wiped out by sickness and death claims until a harmless substitute was discovered and the dangerous in- gredient prohibited in 1897. Other countries followed, and in 1906, on account of the difficulty of eliminating poisonous phos- phorus in countries with an important export trade, the Inter- national Association for Labor Legislation secured an inter- national conference at Berne which resulted in 1906 in the 1 See "Health Insurance," p. 415. SAFETY AND HEALTH 355 unique expedient of an international convention l providing for the absolute prohibition of the manufacture, importation, or sale of matches made from white phosphorus. This treaty was signed at once by Denmark, France, Germany, Italy, Luxemburg, the Netherlands, and Switzerland, and a few years later by Great Britain, Spain, and numerous colonies. 2 Canada and Mexico also, without becoming signatories to the treaty, have prohibited the poisonous substance in the match industry. A recommendation that nations which had not yet done so should adhere to this Berne convention was adopted by the International Labor Conference at Washington in 1919. In the United States the question was first given national prominence in 1910 by the report of a federal investigation. 3 Two years later, in April, 1912, Congress placed a prohibitory tax of 2 cents a hundred on matches containing white phos- phorus, and prohibited their import or export. 4 The power of internal revenue taxation which Congress had previously exer- cised for the benefit of bankers and farmers was thus for the first time used for protecting the health of wage-earners. Against only one other industrial substance lead has the drastic method of prohibition been invoked, and in this case the prohibitory legislation is found only in Europe. Austria was first to act, forbidding in 1908 the use of lead in all paints, colors, or cement used for interior work, and the same year the Swiss administrative departments were ordered to forbid the use of white lead in painting carried on in their behalf. The most thoroughgoing action in this regard, how- ever, has been taken by France, which in 1909 declared that after July 20, 1914, the use of " white lead, of linseed oil mixed with lead, and of all specialized products containing white lead, will be forbidden in all painting, no matter of what nature, carried on by working painters either on the outside 1 For text of this convention see Bulletin of the International Labor Office, Vol. I, 1906, pp. 275-276. 2 For complete list see table, Bulletin of the International Labor Office, Vol. VII, 1912, following p. 503. 3 United States Bureau of Labor, Bulletin No. 86, January, 1910, "Phosphorus Poisoning in the Match Industry," John B. Andrews, pp. 31-146. 4 United States, Laws 1911-1912, C. 75. 35 6 PRINCIPLES OF LABOR LEGISLATION or on the inside of buildings." 1 Belgium, France, and Ger- many also forbid the removal of lead paint by any dry rub- bing or scraping process. A few prohibitions apply not to substances, but to instru- ments of work. One of these is contained in the Massachusetts statute intended to protect textile mill operatives from "the of death." This law, in order to prevent the transfer from worker to worker of tuberculosis and other infections, prohibits the use of any form of shuttle "in the use of which any part of the shuttle or any thread is put in the mouth or touched by the lips of the operator." 2 Contagious diseases among glass-blowers are guarded against in France and Portu- gal by prohibitions against the use by more than one person of the same blowpipe. 3. REGULATION The method of regulation, in the prevention of occupational accident and disease, as in other social problems, is based on the principle of toleration within limits. The majority of the people may believe that certain dangerous machines or proc- esses are so necessary a part of our industrial life that their prohibition is at present undesirable or at least impracticable. In dealing with industrial accidents and diseases the adoption of this principle leads in the work-places to the installation of machine guards, fire-escapes, dust and fume removal systems, separate wash-rooms and eating-rooms; and for the work- people to the limitation of working hours. As the latter point has been considered in the chapter on "Hours of Labor" only the regulation of work-places need be treated here. Furnishing a reasonably safe place in which to work is plainly the duty of the employer, and was so recognized under the common law and by the employers' liability statutes. Not all industrial managers, however, are equally watchful and 1 United States Bureau of Labor, Bulletin No. 95, July, 1911, p. 180. ' * Massachusetts, Laws 1911, C. 281. A similar statute was enacted in RJiode Island (Laws 1918, C. 1632;, while Connecticut (Laws 1919, C. 27) sought to accomplish the same hygienic object by requiring mill operators to furnish weavers with appliances making it unnecessary to touch thread or shuttle with the lips. SAFETY AND HEALTH ^357 energetic, even if all were equally alive to their social respon- sibility in the matter, and hence has arisen the need of stand- ards, drafted and enforced by public authority, which will throw about the work-people the necessary protection. So diversified are the various branches of industry and the acci- dent and disease hazards in each that separate codes have grown up about them. These codes deal in the main with (i) factories and workshops, (2) mines and tunnels, and (3) transportation . i (i) Factories and Workshops Modifying to meet its own conditions a mass of legislation already existing in Great Britain, Massachusetts passed on May n, 1877, the first American law requiring factory safe- guards. This pioneer law touched on nearly all of the points now covered by our most advanced statutes for the prevention of factory accidents. It provided for the guarding of belting, shafting, and gearing, prohibited the cleaning of moving ma- chinery, required elevators and hoistways to be protected, and called for sufficient means of egress in case of fire. Prac- tically every state in the union now has a factory and work- shop act prescribing minimum conditions of safety. a. Machine Guards. The point perhaps most frequently dealt with is safeguarding of machinery. Mechanism for the transmission of power, like belting, shafting, and gearing, as well as active parts of machines, such as saws, planers, mangles, and emery-wheels, must usually be securely guarded, but if this is not considered possible it is sometimes required that notice of the danger be conspicuously posted. vSet-screws or other projections must be countersunk beneath the level of the shaft or otherwise guarded, while shafts and belts, and floor openings through which they pass, must be cased or railed off. A statute found only in the great textile state of Massachusetts requires looms to be provided with guards which will prevent injury from flying shuttles. 1 It has often but not uniformly been held by the courts that failure to pro- vide the required safeguards is negligence per se? and that 1 Massachusetts, Laws 1909, C. 514, Sec. 101. 2 Davis . Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899 (1905). 35 8 PRINCIPLES OF LABOR LEGISLATION the worker does not assume the risk of the employer's negligent disregard of duty, even though he is aware of it. 1 Many safe- guards can be applied best and most economically during the original building of the machine, and Minnesota has pro- hibited the manufacture or sale of mechanism with danger points unguarded. 2 The same idea, is found in the laws of some European countries, and a growing number of American dealers are acting upon it without legislative compulsion. 3 It is not sufficient, however, for a safeguard to be attached to a machine. If the guard is to do its work it must be actually used. A number of states have therefore passed provisions forbidding any person to move, displace, or destroy any safety device except under rules established by the employer, and some specify immediate repairs as the only cause for which a machine guard may be removed during the active operation of the machine. A related clause forbids employees to operate or tamper with machines with which they are not familiar or which are not connected with their regular duties. In case of accident it is important that the operative be able to stop the machine at once. It is commonly required, therefore, that shafting be fitted with tight and loose pulleys, and that, belt-shifters or poles be supplied for shifting the belt quickly and safely from one to the other. Some states require friction clutches for stopping machinery, and in ad- dition to all these means of safety Illinois, among other states, requires speaking-tubes, electric bells, electric colored lights or other means of communication between the workroom and the engine-room. Other regulations governing moving ma- chinery forbid cleaning or repairing it while in motion, and overcrowding. Closely related to the foregoing provisions are those dealing with covers or other safeguards on such stationary equipment as vats and pans. Among other provisions against accident are frequent re- quirements that stairs must be properly screened at sides and bottom, must have rubber treads if thought necessary by the 1 Evansville Hoop & Stave Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 549 (1908). 2 Minnesota, Laws 1913, C. 316, Sec. 5. 011 R ' Commons, "How the Wisconsin Industrial Commission n \Vorks, American Labor Legislation Review, February, 1913, p. 13; Labor and Administration, 1913, Ch. XXXI. SAFETY AND HEALTH 359 commissioner of labor, and must be furnished with substantial hand-rails. Stair openings on each floor must be closed, as well as entrances to elevator shafts. Trap-doors, fences, gates, or other safeguards may be required for hoistways, hatchways, and well-holes. It is often required that elevators be pro- vided with automatic catches to prevent falling. In Wiscon- sin the industrial commission had, in 1920, issued more than seventy-five orders looking to the safe construction and oper- ation of passenger and freight elevators. 1 Protection against explosions of stationary boilers is best exemplified by the methods of the Massachusetts Board of Boiler Rules. This board, one of the earliest forerunners of the industrial commission plan of drafting and enforcing safety measures, was established in 1907. 2 It is composed of five members: the chief inspector of the boiler inspection department, who serves as chairman; one representative of the boiler manufacturing interests; one representative of the boiler-using interests; one representative of the boiler-insur- ance interests ; and one operating engineer. The duties of the board include the formulation of rules for the construction, installation, operation, and inspection of steam-boilers. For this purpose public hearings and private conferences are held, and the rules as formulated are submitted to the governor for approval. When approved they are published and have the full force of law. The success of this system in reducing the number of boiler explosions has led to its adoption in many states and cities, even as far away as Manila. b. Protection against Fire. Though the prevention of fire is of far more importance than providing means of escape, legal provisions covering this point are of comparatively late devel- opment. It was not until 1911, for instance, that New Jersey ordered cans to be provided for combustible waste, and it was not until 1912 that New York required gas-jets to be inclosed in globes, wire cages, or other protection, and forbade smoking in factories. Meanwhile, disastrous factory fires in both states, due in part to lack of these safeguards, had attracted the attention of the country, and resulted in much legislation. In some states floors must now be swept daily and the sweep- 1 Industrial Commission of Wisconsin, Elevator Code, 1918. 2 Massachusetts, Laws 1907, C. 465, Sees. 24-28. 3 6o PRINCIPLES OF LABOR LEGISLATION ings removed, and the quantity of explosives that may be kept in a building is carefully regulated. Sometimes fac- tories must be equipped with an automatic gas-cock or ap- pliance by which in case of fire the supply of gas may be shut off without entering the building. Required means of extinguishing fires include pails of water or sand, a standpipe and hose of specified dimensions, fire extinguishers or automatic sprinkler systems. The major part of fire laws, however, is devoted to provisions for prompt escape. In the early days of this legislation, since no one had taken the time to study out what would constitute effective egress, lawmakers contented themselves in most cases with ordering "suitable and sufficient" exits and escapes. Now the most elaborate details as to material and construction are found. Balcony escapes, fire towers, or chutes or to- boggans may be used in different states. Doors must be con- structed to open out or slide, and must not be fastened in any way during working hours. Sometimes the number of em- ployees to the floor is regulated, periodical fire drills are called for, and gongs, and red lights or other "Exit" signs, must be installed. A growing number of states require plans for fire egress in new buildings to be passed upon by labor or building department officials. c. Lighting, Heating, and Ventilation. Although proper lighting affects both the health and comfort of the work- man and his liability to accident, less attention has been paid to this phase of industrial safety and hygiene than to almost any other point of similar importance. Comparatively few states have enacted any legislation on the subject, and most of those limit themselves to meaningless and unenforceable provisions such as that factories must be "well and sufficiently lighted." A long step in advance was made by the Oregon statute of 1919, requiring factories to be lighted according to a minimum scale of values to be recommended by the Illumi- 1 Connecticut (General Statutes 1902, Sec. 4518) adds that painted, stained, or corrugated glass in factory windows must be removed, "where the same is injurious to the eyes . . . upon the order of the factory in- spector. In other words, Connecticut permits any factory-owner to block out light by any one of the three methods named until ordered to t by the inspector, who must, however, first prove that the dark- ness is injurious. SAFETY AND HEALTH 361 nating Engineering Society, subject to modifications after public hearing. 1 Artificial lighting in factories is notoriously bad because of poor quality, insufficient quantity, haphazard distribution resulting in spots of excessive intensity separated by danger- ous shadows, and glare caused by lack of shades or diffusing mediums. Many eye specialists assert that from 80 to 90 per cent, of headaches are due to eye strain, and in the pro- duction of eye strain improper lighting is an important factor. The effects of poor illumination are particularly severe upon women workers, because of their more delicate nervous or- ganization. Yet at the present stage of the art all harmful light conditions in factories could be done away with easily and cheaply. "It can easily be shown," declares one ex- pert, "that a workman earning only $2 per day of ten hours would have to lose but three minutes of his time to make a loss to the manufacturer equal to the cost of all the artificial light he could possibly require during the entire day." 2 Indications of what a really scientific law on factory light- ing might be are found in the Holland statute. There women and children are forbidden to work in establishments where artificial illumination is ordinarily required between 9 A.M. and 3 P.M. For processes exceptionally trying to the eyes, such as embroidering, typesetting, and instrument-making, a minimum light of one and one-half foot-candles is specified, while for less exacting occupations the minimum is one foot- candle. With the growth of industrial commissions in the United States there is now developing a body of regulations prescrib- ing standards of factory lighting by administrative order. 3 A few states authorize the inspector to require changes in heating apparatus found dangerous to health, but no stand- ards of proper or permissible temperature are set up. Massa- chusetts has established for certain textile processes a grad- uated standard of humidity permissible at certain tempera- 1 Oregon, Laws 1919, C. 181. 2 F. Leavenworth Elliott, "Factory Lighting," American Labor Legis- lation Review, June, 1911, p. 116. 3 See, for instance, Industrial Accident Commission of California, General Lighting Safety Orders, 1919. 362 PRINCIPLES OF LABOR LEGISLATION tures, 1 but only there and in Illinois is the subject of humidity mentioned. Yet apart from the presence of dusts and fumes, the only atmospheric condition which has been thoroughly proven harmful is the combination of excessive heat with ex- cessive humidity. Recognition of the importance of ventilation is more wide- spread. Industrial dust and fume, whether metallic, chemical, vegetable, or animal in origin, and whether poisonous or not, are among the most insidious and serious of modern health hazards, and the illness and death of wage-earners vary almost in direct proportion to the contamination of the air supply. Hence about half the states have enacted provisions that fac- tories shall be ventilated. The wording, however, is in most cases so vague that it means but little/ Among the first laws which attempted to establish even an elementary standard of ventilation was the Illinois statute of 1909. Under this act the amount of fresh air to be supplied depends upon the kind of illumination used, the cubic air space furnished for each employee, and the window area of workrooms. 2 Pro- visions for from 250 to 600 cubic feet of air space for every employee are now found in a few state laws, but more impor- tant are the newer regulations providing for the retention and removal of dangerous dust and fume at the point of produc- tion by specially constructed hoods, hoppers, exhausts, and fans. Regulations of this type have been established either as statute laws or by administrative order principally in the large lead-using states, such as Illinois, Missouri, New Jersey, Xe\v York, Ohio, and Pennsylvania. 3 As additional precau- tions, most of these laws require wet-cleaning methods, the use of respirators, and separate lunch-rooms, and forbid bring- ing any food or drink into the workrooms. Similar provisions in the laws of other countries have helped reduce the risk of lead poisoning far beneath previous American expectations. For instance, in an American white and red-lead factory, employing eighty-five men under unregulated conditions, the doctors' records for six months showed thirty-five men "lead- * Massachusetts, Laws 1910, C. 543. Illinois, Laws 1909, p. 202. 1 For a comprehensive act of this type see New Jersey, Laws 1914, {-. IO2. SAFETY AND HEALTH 363 ed," while an English plant of the same nature, with ninety employees, but under strict supervision, reported no cases for five years. 1 In at least two cases ventilation statutes have been de- clared unconstitutional by state courts, but both times upon issues not related to the purpose or benefits of the laws, and in both cases they were soon replaced by amended acts. In 1 90 1 the California law of 1889 was challenged on the ground that it made the commissioner of labor the judge not only of the need for means of dust removal, but also of the character of the appliance to be installed. The supreme court upheld the objection, 2 but the invalid statute was immediately re- placed by a new law, giving the commissioner power to order only proper appliances instead of some particular contrivance. In Illinois a 1911 statute forbade the use of emery or similar wheels "in any basement so called, or in any room lying wholly or partly beneath the surface of the ground." This provision the Supreme Court of Illinois held to be an "un- warranted discrimination," since it condemned all rooms of the class named without reference to their adequate ventila- tion or lighting. 3 The legislature of 1915, however, reenacted substantially the same provision, with a change of wording designed to overcome the objection. d. Seats, Toilets, and Dressing-Rooms. In safety and health legislation, as well as in legislation on hours and wages, a dis- tinct tendency is noticeable to single out women for special protection, on the grounds of their greater physical weakness and their comparative helplessness as wage bargainers. The possibilities of injury from unsafe or insanitary conditions are more apparent and it is easier to make a conclusive case in their behalf. Not infrequently health and safety laws ap- plied only to women when first passed, but were later extended to protect all workers. For instance, in Colorado a law which originally required hand-rails on stairways only in buildings where women were employed was extended in 1911 to cover all work-places. 4 Or in some cases a law affording some pro- r 1 American Labor Legislation Review, December, 1914, p. 539. 2 Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755 (1901). 3 People v. Schenck, 257 111. 384, 100 N. E. 994 (1913). 4 Colorado, Laws 1911, C. 132 3 64 PRINCIPLES OF LABOR LEGISLATION tection to all workers may be of wider scope in its application to women. Thus in Missouri mechanical means for dust removal must be installed in all factories carrying on dusty processes where five or more "persons" are employed, and also in dusty workshops if the five or more employees are "children, young persons, or women." 1 Particularly striking is the special protection of women manifested in the factory and mercantile laws on seats, toilets, and dressing-rooms. In fact, except for provisions in about half a dozen states requiring seating arrangements for motor- men and conductors on street-cars, legislation with regard to seats exists only for women. As far back as the end of the 'seventies the dangers of constant standing for salesgirls were recognized, and it was urged that they be furnished seats and allowed to use them. A law containing such provisions was passed by New York as early as 1881. Almost every state now requires suitable seats for females in at least mercantile establishments. 2 The majority of laws extend this require- ment to manufacturing or to manufacturing and mechanical establishments, and several states cover practically all em- ployments. 3 The proportion of seats to workers is sometimes fixed and in many cases the law specifies that employers must permit the use of the seats when work will not thereby be interfered with. 4 These laws are of little real importance in protecting health, however, since it is practically impossible to see that employers and foremen allow the seats to be used even when provided. 5 Nearly all the states likewise require sanitary and separate toilets for women workers in addition to those for men, and about a third make provision for women's dressing-rooms. These provisions form a very important factor in maintaining the health and morals of women workers in any establish- 1 Missouri, Revised Statutes 1909, Sees. 7858-7859. 2 By 1920 only Idaho, Mississippi, Nevada, and New Mexico were without such legislation. 'Arizona, Arkansas, California, Kentucky, Louisiana, Missouri, Montana, Ohio, Pennsylvania, Texas, Washington, West Virginia. 'See Kentucky, Laws 1912, C. 77, Sec. 3, for both such provisions. A law of this class which plainly defeats its own intent is the Dela- ware statute of 1913 (C. 176) which provides that no girl under eighteen may work in any employment which "compels her to remain standing constantly, unless seats are provided." SAFETY AND HEALTH 365 ment; the character of the employment frequently makes necessary a change from street clothes to work clothes, and it is also highly desirable that a suitable place be provided where women and girls may eat lunch, secure a little rest at the noon period, and retire in case of illness. For the lead industries, especially, careful wash-room standards have been worked out, specifying hot and cold water, a definite ratio of basins or of trough length to the number of employees, soap, nail-brushes, and towels. In the best lead laws, also, such as those of New Jersey, Ohio, and Pennsylvania, hot and cold shower-baths are required, to be used at least twice a week on the employer's time, and to in- sure the use or the baths a bath register must be kept. A few states require a sufficient supply of pure drinking-water to be kept in a readily accessible place. Sometimes, especially in connection with foundries and casting-rooms, the lead trades and compressed-air work, the dressing-rooms must be properly heated and ventilated, and often supplied with lockers and with facilities for drying clothes. e. Protection from Infectious Disease. Modern industrial processes subject large numbers of employees not only to dangerous dusts and vapors, but also to a variety of disease- breeding organisms, carried either by fellow-workmen or by the materials worked upon. As a protection against such in- fection a number of legal regulations have been adopted. Several states, for example, forbid sleeping in workrooms, some require cuspidors to be furnished and to be cleaned and disinfected daily. Massachusetts in 1913 required that cloths or other material provided for cleaning printing-presses must be sanitary, 1 and a California law of the same year laid down the rule that all wiping-rags must be sterilized. 2 In every industrial state hundreds of cases of infection or "blood-poison- ing" occur yearly, and about six out of every seven of these are the result of small scratches. The requirement now found in some states for a first-aid kit in factories, workshops, and mercantile establishments should assist in reducing this need- less danger. Prominent among the infectious diseases of industry is 1 Massachusetts, Laws 1913, C. 472. 2 California, Laws 1913, C. 8l. 366 PRINCIPLES OF LABOR LEGISLATION anthrax, which arises in the handling of infected hides or hair. Austria, Belgium, France, Germany, Great Britain, and Italy have all turned their attention to eradicating this malady. Despite searching investigation, however, the United States remains nearly inactive. 1 The commonest legal safeguards are provisions for thorough washing, for overalls, neck-coverings, and gloves, and for treating instantly scratches and slight wounds which offer an entrance to the bacillus. Disinfection of bristles and bales of hair from suspected localities before any work is done on them is insisted on in some countries. Another recommendation of the Washington International Labor Conference of 1919 was for the disinfection, either in the exporting country or at the port of importation, of wool contaminated with anthrax spores. /. Tenement House Manufacture. Difficult as are the prob- lems connected with the regulation of labor conditions in factories, they are not more troublesome than those en- countered in the regulation of tenement workshops, where the work is done by the family group in its customary living- quarters. ( Tenement house manufacture is often looked upon as a pleasant and easy method whereby the mothers of the poor may add to the family income in their leisure moments. The fact is that such work has usually proven a menace to health, to wage standards, and to the existing labor laws. Conges- tion, insanitary quarters, lack of restriction on child labor, ab- solutely unregulated hours, and miserable pay combine to create a condition which endangers the lives not only of the workers, but of the purchasers of their product. Often tene- ment dwellers have been found at work on garments and arti- cles of food while suffering from contagious diseases. 2 As early as 1885 New York sought to end the "sweating" or tenement workshop system by prohibiting the manu- facture of cigars and other tobacco products in tenement l Sec United States Bureau of Labor Statistics, Bulletin No. 267, Anthrax as an Occupational Disease," John B. Andrews, 1920. 1 See Second Report of the New York State Factory Investigating Com- mission, "Manufacturing in Tenements," Vol. I, pp. 90-123; Report on Condition of Woman and Child Wage-Earners in the United States, Vol. II, "Men's Ready-Made Clothing." SAFETY AND HEALTH 367 houses in cities of the first class. The law was declared un- constitutional, the court holding it an abuse of the police power and an infringement of the cigar-maker's liberties in that it sought to force him "from his home and its hallowed associations and beneficent influences, to ply his trade else- where." l Had this pioneer statute been sustained, the entire problem of tenement house labor might have been disposed of almost at its beginning. The setback in the Jacobs case radically changed the method of attack on the sweating system. Prohibition having been declared invalid, for three decades nearly all effort was di- rected toward regulation and the imposing of minor restric- tions through a licensing system. In 1891 Massachusetts passed " An act to prevent the manufacture and sale of cloth- ing made in unhealthy places," and the following year New York inserted in its newly codified labor law a provision for the licensing and regulation of tenement workshops. Similar provisions exist in about a dozen states. 2 These statutes ordinarily require that home work on gar- ments, foodstuffs, and tobacco must be done only in rooms licensed by the factory inspection department. Only mem- bers of the immediate family, which is carefully defined, may be employed, and licenses may be issued only if fire-escape, toilet, and all other health and safety laws have been com- plied with. In case of disease, work must cease until the board of health has declared the illness at an end and has fumigated the apartment. A register must be kept of names and addresses of persons taking out work, and goods given out must be labeled with the name and address of the manu- facturer. Licenses are revokable for failure to comply with the law, or, in some of the newer acts, "if the health of the community or of the persons employed thereunder requires it." 3 The results of attempted regulation under even the best of these laws have, however, never been satisfactory. On July i, 1917, for instance, there were more than 15,000 licensed 1 In re Jacobs, 98 N. Y. 98 (1885). 2 In 1920: Connecticut, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, and Wisconsin. 3 See, for instance, Maryland, Laws 1914, C. 779, Sec. 248. 3 68 PRINCIPLES OF LABOR LEGISLATION tenements in New York City alone, and over 700 in the rest of the state. In addition to these, home work was found going on in more than 9,000 homes other than tenement houses, over which the law gives no control whatever. As the working day of a factory inspector is eight hours long, it has been computed that it would require three inspectors to each tenement to which the law applies, or an army of over 45,000 in all, to set a continuous day and night watch upon these dwellings to see that no violations of the law were going on; and this estimate takes no account of the fact that home work is covertly carried on in unlicensed as well as in licensed houses. "After twenty-one years," declare those who have long been sympathetic observers of this legislation, "the difficulties of inspection have been proved insuperable." l In 1913, after the able investigations of the state factory investigating commission, New York once more turned tow- ard the prohibitory method in dealing with this question, and forbade work in tenement homes on food products, dolls or dolls' clothing, and children's or infants' wearing-ap- parel. 2 The prohibition covered work done either directly for a factory or indirectly through a contractor, and was applied to these articles first because of their close relation to public health, especially the health of children. There is little doubt that in the present state of public knowledge these restrictions will be followed by others. 3 (2) Mines and Tunnels Underground work of any sort obviously subjects the work- man to greater dangers, both as to health and to safety, than do most of the manufacturing industries. Distance beneath the surface, artificial light, poisonous gases, explosive dusts, dampness, intestinal parasites, extreme heat, and in some ' Constitutional Amendments Relating to Labor Legislation and Brief v i, e De f ense > submitted to the Constitutional Convention of New ork State, June 9, 1915, by a committee organized by the American Association for Labor Legislation, p. 51. 2 New York, Laws 1913. C. 260. ' In 1920, for instance, the Women's City Club and the City Club of w York united in furthering a bill to prohibit in tenement living rooms all work let out by factories. SAFETY AND HEALTH 369 kinds of work abnormal air pressure amounting often to sev- eral atmospheres, all contribute to render underground occu- pations extraordinarily hazardous. It is for this reason that the validity of hour legislation for adult men has become thoroughly established in the mining industry, although in many other lines of work such restrictions are still subject to attack on the score of unconstitutional! ty. 1 - a. Mining. In these circumstances it is not surprising that mining furnishes a higher fatal accident rate than any of the other main groups of industry. Metal-mining has a higher death-rate than coal-mining, and employment in an- thracite coal mines is more dangerous than in bituminous mines, since the former are deeper and more subject to ac- cumulations of noxious and explosive gases. Coal-mining appears to be more dangerous in America than in any other country. Standing second with regard to num- bers employed, the United States leads all other important coal-producing countries both in total number and in rate of fatal accidents. During the ten years ending with 1910 the average fatal accident-rate per 1,000 employed in coal- mining was 3.74 for the United States, 2.92 for Japan, 2.11 for Germany, 1.69 for France, 1.36 for Great Britain, 1.04 for Austria, and 1.02 for Belgium. 2 Health dangers and occupational diseases among miners have been given much less legislative attention than has the subject of accidents. Accidents are usually more spectacular, their causes are more certain and more easily located, and, moreover, an employer may be held in damages for accidental injuries to mine workmen, while only a few American states have provided compensation for occupational diseases. 3 Among the more important legal provisions for safeguarding the life and health of miners are the requirements for detailed maps of mines showing all workings and open at all times to mine inspectors, for a sufficient number of escapement 1 See, however, discussion of this point under "Maximum Hours, Men," pp. 266, 267. 2 United States Bureau of Mines, Bulletin No. 69, "Coal-Mine Acci- dents in the United States and Foreign Countries," Frederick W. Horton, p. 87. 3 For a further discussion of this subject see Chapter VIII, " Social Insurance," 370 PRINCIPLES OF LABOR LEGISLATION shafts, for proper ventilation and a supply of pure air, and frequently for a special employee to inspect the mine daily for explosive or poisonous dusts or gases. Precautions against falling rock or coal must also be taken by carefully timbering dangerous places as far as known. Rules are laid down in regard to proper methods of drilling and blasting, and hoist- ing-gears and cages for carrying men in and out of the mine must conform to specific requirements. Safety-lamps, shelter- holes, fencing of machinery, telephone connections, restrictions upon the storing of explosives and upon the quality of il- luminating oils these and many more safeguards are fre- quently required and carefully defined by law. In the newer laws provision is usually made for a rather limited first-aid equipment. The enforcement of these provisions in the various states is usually entrusted to a special body of mine inspectors, who either form a separate bureau of mine inspection or are at- tached to the state department of industrial inspection. Mine inspection protects the property of the employer as well as the lives of the employees, and many states require of in- spectors a certain number of years' experience and also civil- service examinations conducted by an examining board fre- quently composed of representatives of employers and em- ployees. The authority of the inspectors is sometimes far- reaching, extending even to the power of stopping work if the mine regulations have not been obeyed. The best results in the enforcement of mine safety and health legislation have been achieved in states where, as in Illinois, joint conferences of miners and mine-owners have been brought together for the administration as well as the drafting of the laws. A significant step, which may in time lead to national regulation of mining conditions, was the establishment by Con- gress in 1910 of the federal Bureau of Mines with the function, among others, of conducting "scientific and technologic in- vestigations concerning mining," with a view to improving health conditions and increasing safety and efficiency. The bureau has no authority to do anything except conduct in- vestigations, publish reports, and furnish advice, all enforce- ment of mine laws being left in the control of the states, but within its limited field it has already performed valuable ser- SAFETY AND HEALTH 371 vices. Series of bulletins and technical papers distributed free to miriers present the results of the latest scientific inquiries into the causes and prevention of mine explosions and other accidents, and some half-dozen mine rescue stations have been established, one in each of the more important coal fields of the country. Connected with each station is a fully equipped mine rescue car, in charge of a mining engineer and two es- pecially trained miners, which tours the district, giving prac- tical instruction in safety work, and is dispatched at once to the scene of any disaster. Previous to creating this bureau, Congress had enacted a code for the regulation of mining con- ditions in the federal territories, which is still in force in Alaska and in the insular possessions. 1 b. Work in Compressed Air. An industrial hazard brought into prominence by the increasing construction of tunnels, subways, bridges, and skyscrapers is compressed-air illness, or the "bends." An investigator for the Illinois Commission on Occupational Diseases secured interviews with 161 men who had sustained attacks of the malady, and the medical director at the construction of the Pennsylvania-East River tunnels in New York in 1909 reported 3,692 cases, of which twenty were fatal. In 1920 only three states, New York, New Jersey, and Penn- sylvania, had attempted to control the disease by legislation, although in other states similar steps have been taken through the method of administrative orders. 2 The customary pro- visions include physical examinations of all applicants for work and of all employees at stated intervals, a sliding scale of working hours, decreasing as the pressure increases, 3 and a period of gradual "decompression," ranging from one minute for emergence from a pressure of ten pounds above normal to twenty-five minutes for emergence from a pressure of fifty pounds above normal. Work under more than fifty pounds' pressure is forbidden. The employer must maintain dressing- rooms with lockers, hot and cold shower-baths, and provision for drying clothes. Medical attendants are also required, as well as a hospital lock for the recompression and treatment of sufferers from the disease. 1 United States, Laws 1890-1891, C. 564. 2 See p. 381. 3 See "Hours of Labor, Men," p. 260. 372 PRINCIPLES OP LABOR LEGISLATION (j) Transportation Protective legislation regulating working conditions in transportation relates mainly to safety. The development of aerial transportation had in 1920 led to no labor laws ex- cept the Connecticut provision that aeronauts be licensed 1 and a Pennsylvania clause that they be over eighteen years of age, 2 but in carriage by land and water a large body of statutes has gradually grown up. These measures may either be de- signed for the protection of employees, as in the case of auto- matic couplers on railroads, and the provision for emergency exits for seamen, or they may be intended primarily for the protection of the traveling public, as in the case of boiler inspection in both kinds of transportation. A few measures such as the full-crew laws on railroads and in navigation have been urged as a direct protection for both laborers and travelers. The majority of transportation employees are engaged in traffic which is interstate or international in character. The more important legislation affecting this class of workmen has therefore been federal rather than state. Railway employees have been more often brought under state laws than have seamen, but when any question has arisen over the respective jurisdiction of state or federal authority the latter has prac- tically always been given precedence by the courts. a. Navigation. While slavery and serfdom have been abolished for the majority of workmen in most civilized countries, until 1915 the seaman in America was kept in a position of semi-slavery through employment under a con- tract enforceable by imprisonment. This position of invol- untary servitude gave him but little effective voice in regulat- ing the conditions under which he worked. In the early days of sea travel a ship-owner's interest impelled him to secure an intelligent and competent crew which could protect his cargo. But with the substitution of steam for sails, the spread of lighthouses and channel markings, and the growth of marine insurance and limited liability legislation, the quality of seamanship had greatly declined. In the majority of serious sea disasters in recent years the lack of both skill and numbers 1 See "Technical Qualifications," p. 352. 1 In the child labor code, Pennsylvania, Laws 1915, No. 177, Sec. 5. SAFETY AND HEALTH 373 in the working force has been officially reported. There had apparently been a steady increase in the size of the load carried, without a corresponding increase in the number and skill of those employed to handle it. The "seaman" had been dis-. placed by the " deck-hand," the American by the northern European, and the latter by the immigrant of the southern races. In a few states legislation looking toward general marine safety has been enacted, such as provisions for boiler inspec-' tion and signal lights, but most of the legislation affecting seamen has been federal. As early as 1798 Congress recog- nized the need of special protection for this class of work- men, many of whom are single and homeless. In that year the federal government established a marine-hospital fund to maintain hospitals for the care of disabled seamen of ships belonging to the United States. 'During the latter half of the nineteenth century Congress continued its protective policy toward seamen by legislation, regulating, among other matters, the conditions of living and working on shipboard, the size and experience of crews, and the construction and in-, spection of vessels. But despite these regulations the position of seamen was held to be most unsatisfactory, and it was not until the passage of the federal seamen's act of 1915 that the grosser injustices were removed. 1 While the outstanding features of this act related rather to the personal freedom of seamen, 2 additional provisions were made for the health and comfort of employees through the requirement of proper washing-places and sleeping-rooms, hospital space, fumigation, heating, lighting, ventilation, and drainage. It has been repeatedly pointed out that in case of accidents at sea, such as fires or boiler explosions, a ship cannot sum- mon assistance as a manufacturing establishment, for in- stance, is able to do on land, but must rely upon its own crew and the chance aid of near-by vessels. For this reason the only way really to safeguard human life at sea is to provide an equipment and crew adequate to meet any reasonable emergency. The seamen's act of 1915, therefore, provided 1 United States, Laws 1914-1915, C. 153. 2 See "Contract Labor," pp. 44, 45. 374 PRINCIPLES OF LABOR LEGISLATION for a substantial increase in the size of the crews employed, for a certain percentage of able seamen, for "certified life- boat men," and for properly constructed life-boats, the num- ber to be fixed according to the size and character of the ship and its cargo. b. Railroads and Street-cars. In the early days of railroad- ing, reports of deaths and mutilations, particularly in connec- tion with the coupling of cars, were repeatedly made public, and the need of protective legislation became apparent, espe- cially as the length and complexity of lines developed and as speed increased. At the middle of the nineteenth century only about 9,000 miles of railroad existed. In 1869 a through route to California was opened, and by 1880 the total mileage had increased to 86,000. Between 1880 and 1890 more miles of new road were built than during the entire period previous to 1875, and in the early 'eighties a few states enacted protec- tive legislation. It soon became apparent, however, that state legislation alone would result in long delays and in a great lack of uniformity. As the occurrence of serious accidents continued and as interstate commerce developed, the need of federal regulation became more apparent. Many experiments were carried on in search of proper safety devices, and as early as 1868 a successful application of air-brakes was made. But the most serious danger to employees resulted from their being required to go between cars in order to couple or uncouple them. It was not until 1887 that a satisfactory automatic coupler was devised for general use. In order to compel the general adoption of the standard coupler the necessity of federal legislation was recognized. Although the Interstate Commerce Commission, created by the federal act of February 4, 1887, had power to investi- gate and to regulate rates, the act made no mention of safety appliances or the protection of employees. The absence of authority over these matters was remedied by the federal act of March 2, 1893, and several subsequent acts 1 made it obligatory upon all roads engaged in interstate traffic to equip all cars and locomotives with approved automatic couplers, and to provide other safeguards such as power- United States, Laws 1892-1893, C. 196; Laws 1902-1903, C. 976; Laws 1906-1907, C. 225. SAFETY AND HEALTH 375 brakes and grab-irons. 1 In this particular, American labor legislation was far in advance of European. The results of the coupler legislation are particularly striking. In 1890, when only about 10 per cent, of railway cars were equipped with automatic couplers, accidents in the coupling of cars amounted to nearly half of all casualties to trainmen. By 1912, when over 99 per cent, of all cars were so equipped, the proportion of accidents from this cause was reduced to about 8 per cent. The majority of early regulations imposed by the federal government, however, left open to the various roads the de- termination of the kind and character of devices to be in- stalled. The absence of a central standardizing authority resulted in lack of uniformity, and at times in the adoption of inadequate or ineffective devices. In 1910, therefore, an act of Congress, in addition to making new safety provisions, gave to the Interstate Commerce Commission power, after proper hearings, to "designate the number, dimensions, loca- tion, and manner of application of the appliances," and there- after such determinations were to remain as "the standards of equipment," and any failure to comply with any require- ment of the commission was subject to a "like penalty as failure to comply with any requirement of this act." 2 At the same session of Congress the commission was given au- thority to investigate all collisions, derailments, or other accidents, to subpoena witnesses, administer oaths, take testi- mony, and to require the production of all papers, books, and other evidence. It might also make a public report "together with such recommendations as it deems proper." One year later $25,000 was appropriated for the use of the commission in making tests and establishing standards 3 and a maximum of $300,000 a year was appropriated to provide for proper boiler inspection by a staff of fifty-three inspectors working in close cooperation with the commission. 4 1 For the further protection of employees and as a stimulus to the roads to use every possible safety precaution Congress also provided that no employee injured on a train not equipped according to law could be held to have assumed the risk of his employment even though he knew of the violations. This provision has been upheld in the North Carolina case of Greenlee v. Southern R. Co., 122 N. C. 977, 30 S. .115 (1898). 2 United States, Laws 1909-1910, C. 160. 'United States, Laws 1910-1911, C. 285. 4 United States, Laws 1910-1911, C. 103. 37 6 PRINCIPLES OF LABOR LEGISLATION Beginning with the great increase in railroad mileage in the early 'eighties, state legislation grew in volume and developed along two lines, one mainly for the protection of employees, and the other mainly for the protection of the traveling public. Measures for the protection of travelers are of two kinds. The first relates to mechanical devices for the pre- vention of accidents, such as automatic bell-ringers, brakes, headlights, and signal lights, while the second relates to the qualifications and training of employees. Among the measures which have been passed primarily for the protection of employees are found such requirements as those for the installation of grab-irons, ladders, running- boards, storm windows in engines, the maintenance of a proper temperature in mail or baggage cars, the regulation of the height of bridges or other overhead structures, the main- tenance of a proper clearance around tracks, particularly in railroad yards, the blocking of frogs and switches, and, for employees engaged in repairing tracks, the erection of sheds to protect them from inclement weather. For the safety and convenience of employees who are frequently required to travel long distances on freight or stock trains caboose-cars must be provided, which must be constructed according to certain rules of size, strength, safety, and comfort. Employees on street or interurban railways are also fre- quently protected through state legislation or municipal ordinance. Such measures relate usually to inclosed vesti- bules during the winter months, seats for motormen, and proper automatic brakes, and occasionally to equipment for the sanding of rails, to the examination of employees, and to minimum age limits. During the past few years the sharpest debate in matters of railway safety legislation has centered about the full- crew laws, which are held to protect both the public and the employee. More than twenty states have enacted such legislation. These acts usually apply to both passenger and freight service on roads of given lengths, and fix the number of employees principally of brakemen in proportion to the number and kind of cars in the train. Full-crew laws have been initiated by the railway men's organizations and have been vigorously opposed by the railroad owners, who have SAFETY AND HEALTH 377 contended that as a rule larger crews are unnecessary because of the reduction in the amount of work required of employees since the introduction of safety devices, the formation of special switching crews, and the generally improved methods of handling trains. They point also to the increase in operat- ing cost, resulting in reduced dividends and in curtailment of improvements. l On the other hand, the trainmen point to the large number of both fatal and non-fatal accidents, and to the increasing strain upon railway employees due to the increase in the weight of trains, in the number of tons per train, and in the number of cars per man. They hold that by these increases the railroads have made their greatest economies. The train- men maintain, therefore, that full-crew legislation serves prac- tically the same purpose as legislation restricting hours of labor, in that both reduce the physical strain and thereby the frequency of accidents. This is the view which was adopted by the Supreme Court of Pennsylvania when in 1913 2 it upheld the full-crew law of that state, enacted in 19 n, 3 as having a real and sub- stantial relation to the safety of passengers and employees on railroad trains. The company presented evidence as to the cost of the legislation, but the court held that "Uncom- pensated obedience to a regulation enacted for the public wel- fare or safety under the police power of the state is not taking property without due compensation, and any injury sustained in obeying such a regulation is but damnum absque injuria." 4 During the year 1915 bills were introduced in a number of states fixing the maximum length of trains. This legislation is also strongly opposed by the railroads, on the ground that 1 For a full discussion of this subject see bulletin Consecutive No. 73 of the Bureau of Railway Economics, Washington, D. C., "Arguments for and against Train-Crew Legislation," 1915. 2 Pennsylvania R. Co. v. Ewing et al., 241 Pa. 581, 88 Atl. 775 (1913). A similar decision was rendered in Chicago, Rock Island and Pacific R. Co. v. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275 (1911), upholding the 1907 law in that state. 3 Pennsylvania, Laws 1911, No. 811. 4 In 1914 the railroad companies succeeded in repealing by a referendum vote the Missouri full-crew law of 1913; and in Pennsylvania they in- duced the 1915 legislature to pass a repealing act, which, however, was vetoed by the governor. 378 PRINCIPLES OF^ LABOR LEGISLATION they have expended large sums of money for improved road- beds, yard and switching facilities, and for increased tractive power of locomotives, which will be rendered useless if they are not allowed to increase the length and weight of their trains. State provisions for railroad safety have frequently been contested on the ground that regulations which apply to inter- state commerce are a subject for federal legislation. But the courts have uniformly held that where Congress has not legis- lated upon these questions the states were entirely within their rights. An interstate road, therefore, might either make such changes as were necessary, as it passed from one common- wealth to another, to meet the minimum requirements of each commonwealth, or it might comply everywhere with the maximum provision found in any of the states through which it passed. Although much of the protective railroad legislation is mainly for the benefit of employees, it is recognized that the safety of the public depends in large part upon the safety of those who are entrusted with the care and management of trains. It is this aspect of the matter which has largely in- fluenced the courts in rendering favorable decisions on safety and health laws for railway employees. The enforcement of protective regulations in relation to railway labor has in the majority of states been entrusted to railway or public utility commissions created primarily to supervise or regulate rates. In this class of legislation, as in the regulation of conditions in factories, workshops, and mines, it has been found impracticable to embody in the statute law specifications which will be effective under diverse and constantly changing conditions. For this reason many legislatures have delegated to the railroad commissions power to work out details of provisions and to prescribe safety rules and regulations. This method of protection has repeatedly been sustained by the courts. In 1913 the law creating the Railroad Commission of Indiana, and an early ruling of the commission fixing a 1,500 candle-power standard for locomotive headlights, were both attacked as unconstitutional. The case was carried to the supreme court of the state, which upheld the delegation of legislative powers, declaring that "The de- SAFETY AND HEALTH 379 cisions of this court and the courts of other states in this regard are clearly against the appellant's contention." l Sub- sequent appeal to the United States Supreme Court also re- sulted in the statute's being upheld. 2 4. DEVELOPMENT OP STANDARDS A careful study of the early laws to preserve industrial safety and health, as passed by Congress and by the legis- latures of the fifty American states and territories, discloses at once four fundamental defects. (z) Defects of Early Legislation First among these defects is the incompleteness of these laws. It was long the custom of legislatures to specify in the law the industries and danger-points which were to be safeguarded, and to confine the inspectors' authority to the places and conditions mentioned. Under this method many industrial danger-points were overlooked. Perhaps ' ' buzz-saw " or ' ' dan- gerous dusts" or "foundry" was omitted from the law, in- advertently or otherwise. Although often fraught with harm to the worker, these unmentioned points were outside the authority of the inspection officials, and the workers received no protection until the law could be changed. Frequently, too, a qualifying phrase greatly limited the operation of a good law. For example, the law in one state required poison- ous fumes generated "in the course of the manufacturing process" to be removed. While varnishing the interior of vats in a brewery two men died and one was totally blinded for life, due to inhaling the poisonous fumes of wood alcohol used in the varnish. But because varnishing vats is in the nature of repair- work and does not come ' ' in the course of the manufacturing process," the inspectors could not legally remedy the dangerous situation. It was necessary to wait an 1 Vandalia R. Co. v. Railroad Commission of Indiana, 182 Ind. 382, 101 N. E. 85 (1913). For a clear opinion on the delegation of legislative authority see Minneapolis, St. Paul and Sault Ste. Marie R. Co. v. Rail- road Commission of Wisconsin, 136 Wis. 146, 116 N. W. 905 (1908). 2 Vandalia R. Co. v. Public Service Commission of Indiana, 242 U. S. 255, 37 Sup. Ct. 93 (1916). 380 PRINCIPLES OF LABOR LEGISLATION entire year (in most states it would have been two years) before the legislature convened and the law could be amended. These illustrations indicate a common weakness of early safety and health laws in many states. The second fundamental defect is the absence of direct re- sponsibility. Many laws placed no obligation whatever upon an employer to safeguard danger-points nor upon the em- ployee to aid in maintaining safety except "in the discretion of the commissioner of labor," or unless "the commissioner so directs," or "if in the opinion of the commissioner of labor it is necessary." This type of legislation placed no duty upon the employer to provide nor upon the employee to maintain proper protection until required to do so by the inspector. No protective devices had to be provided until the inspector called and ordered them installed. Scarcely a state but has had laws of this character. The third fundamental defect is the absence of well-defined standards. The old theory of factory inspection legislation assumed that the legislatures, often made up largely of lawyers and farmers, would define in the law the exact nature of pro- tection to be provided in factory, workshop, or mine. But be- cause of inadequate information, and possibly also because of fear of adverse court decisions, our lawmakers vaguely re- quired merely that dangerous machinery be " sufficiently guard- ed," usually "where practicable," and left it to the poorly trained and poorly paid inspector to enforce these indefinite laws, usually "in his discretion." This discretionary power, when placed in the hands of uninformed officials, brought this method of lawmaking into disrepute among employers, em- ployees, and the public. The fourth fundamental defect is the lack of responsiveness to changing industrial conditions. When it had become ap- parent that many of the early laws were failing of their pur- pose because of the foregoing blemishes, there followed a comparatively brief period during which efforts were made to frame comprehensive, scientific provisions, free from "jokers" and loopholes, and to secure their passage by the legislatures. Perhaps the most noteworthy example of such legislation was the standard law enacted in several states providing for the protection of workers in the lead trades. SAFETY AND HEALTH 381 In this instance, after careful investigation by the federal government supplemented by private studies and many con- ferences, a very specific bill was drafted to apply to the various processes in the manufacture of lead salts, and the resulting legislation served a very useful educational purpose. In a few states also the laws undoubtedly hastened the efforts of employers to make their work-places sanitary. But it was found that some specific safeguards minutely prescribed in the statutes were very quickly out of date. In order that they might be superseded by improved devices or methods there was once more required the slow and expensive action of legislatures, which in most states might not be in session again for more than an entire year. The impracticability of embodying in statute law specific danger-points and specific remedies became clear. (2) The Method of Administrative Orders Legislators themselves began to recognize the futility of attempting to formulate in the short and busy sessions, con- vening in most states only once in two years, proper protective measures. They saw that the proper persons to accomplish this work efficiently were those who had an opportunity to familiarize themselves with changing industrial conditions. Therefore, in-several states, legislators decided that they would no longer attempt to enact laws specifying in detail what shall be done, but instead would ask that work-places be made safe. To carry out the will of the legislature they provided a commission to work out with employers and employees the best possible methods of protection. After public hearings, the methods agreed upon were issued by the commission in the form of administrative orders or regulations to apply state wide and to have the force of law. Here we find the very foundation of effective safety inspection work. The key-note is cooperation. The experience of the worker, the knowledge of the employer, and the critical constructive ability of the expert are all needed in the formation of effective stand- ards of health and safety and in the enforcement of these standards. This new method of regulating industrial conditions through 382 PRINCIPLES OF LABOR LEGISLATION administrative orders cooperatively formulated and issued by a permanent commission, has resulted in several states in a pro- gressive and accurate adjustment of factory inspection to the changing methods and new risks that accompany modern in- dustry. Concerning this method a former chief factory in- spector has said: "As a state inspector, my experience has demonstrated that the arbitrary imposition of rules of law will not, in itself, produce satisfactory standards for the safety and health of employees in factories, mills, and workshops The observations which I have made emphasize the importance of cooperation and of education of both parties to the labor contract as to what are ideal factory conditions. This co- operation must be brought about if substantial results with reference to safety standards are to be obtained through state inspection." Fortunately scientific accident prevention has recently been brought into the foreground by the adoption of workmen's compensation acts, and it has quickened the movement for reorganization of administrative boards in many states. No longer is it necessary in states like New York, Ohio, and Wisconsin, for example, to wait one or two long years for a session of the legislature in order to submit proposals for the proper protection of the workers. No longer need specific rigid provisions be drafted into bills and thrust upon the bewildered attention of the legislators while temporarily in session at the state capitol. The legislature has laid down the law in a broad way; the industrial commission, as rapidly as circumstances permit, may fill in the administrative detail. Under this new system the industry itself makes the laws for its own shop government. Employers and employees, with the aid of impartial experts, are learning through self-expres- sion the importance and the practicability of the now popular motto, "Safety first." The prevention of industrial accidents and diseases, particularly when accompanied by social in- surance, is becoming a matter of enlightened selfishness; the general and the specific statutory requirements of former years are being supplanted by scientific standards developed through administrative orders based on continuing investiga- tions.^ 1 See Chapter IX, "Administration." CHAPTER VIII SOCIAL INSURANCE For most of the economic hazards of life there has been developed an appropriate method for the distribution of losses and the subsequent elimination of risks. Marine insurance, for the financial protection of those who send their goods down to the sea in ships, was the first to be developed on an exten- sive basis. Insurance against loss by fire is now a regularly accepted precaution in every community. By this common method of insuring against loss, each individual in the or- ganized group is assured that in case of the destruction or damage of his property he will be reimbursed from a fund contributed little by little by the whole group. Insurance, accordingly, has been defined as an arrangement for distribu- tion among many of the losses sustained by a few. By this thin-spreading of individual losses over a large group, the man receiving an income from property destroyed by shipwreck or by fire is in a position to reinvest. Even more necessary than for the property-owner is insurance for the workingman, whose ability to labor is his only asset and who is peculiarly liable to be deprived of l^^fl|^nc. When the laborer, no matter how efficient he may iM H as a result of either individual or collective bargaining t^HHd a job for himself even if at a wage and under hour lirnitanoifc which are temporarily acceptable, his economic position is still .pre- carious. He and his family are still face to face with excep- tional economic risks, including the suffering and want fol- lowing accident, illness, invalidity or premature old age, normal old age, premature death, and unemployment. Peculiarly necessary, therefore, is this common arrangement for group or social action known as insurance, when those who suffer the losses are workingmen solely dependent for support 384 PRINCIPLES OF LABOR LEGISLATION upon their ability to labor. Such insurance may be developed by the initiative of individuals wishing to insure, or it may be developed through legislation. When such insurance pro- vision is made through legislation, it marks the adoption by society of a settled policy of cooperative action to distribute among a group the losses suffered by individuals due to their inability to work and thereby earn a livelihood. It is there- fore natural to term this insurance social insurance. While savings are sometimes urged as an alternative to workmen's social insurance, it is as true for the wage-earner as for the merchant, that the provision by each person of a reserve sufficient to meet the possible maximum loss is ex- travagant, requiring as it does that each person shall be able to meet from his individual savings the hazard which will fall upon only a small number. Far more economical is the institution of insurance whereby the individual sets aside only enough to meet the average loss when distributed throughout the group. The most substantial reason why wage-earners do not voluntarily insure themselves against the risks of accident and illness, invalidity and old age, early death and unemploy- ment, is insufficient income. Reliable information from con- servative private and public reports amply confirms the statement that the average wage-earner with a family is not receiving pay for his labor sufficient "to secure the elements of a normal standard of living." 1 It is unreasonable to ex- pect such wage-earners to provide against a possible future contingency at the sacrifice of present necessaries. A further^B^pn for the failure of the underpaid masses to insure thei Bs is indifference or lack of foresight concern- ing the proSHs of the future. Although thrift in the pres- ence of subnormal living occasioned by low wages may at times become a positive social vice, provision for the future is on the whole necessary and beneficial. Furthermore, it is recognized that for millions of laborers saving will take place only under a distinct incentive. This " enforced saving " against the inevitable rainy day in the life of the workingman is most effectively brought about through the periodical col- 1 See Chapter IV, "The Minimum Wage." SOCIAL INSURANCE 385 lection of dues or premiums for the support of the various forms of social insurance. Moreover, it has been discovered that community of interest in directly bearing the financial cost of insurance furnishes a kind of cooperative pressure on employers l which can be utilized effectively in the elimination of risks in so far as they are preventable. The rapid develop- ment of the " Safety first" movement which followed closely the enactment of workmen's compensation laws is sufficient, evidence of the preventive power of social insurance. There is a growing recognition, also, that industry is a contributing factor to the hazards of life among wage-earners. For example, industry is responsible for work-accidents, and is a contributing factor in illness. To the extent that men are idle because of industrial irregularities, industry and not the worker is responsible for unemployment. Social insur- ance plans generally recognize industry's share in creating hazards, the burden of which traditionally has rested upon the wage-earners, and aim to distribute the cost in accordance with the responsibility. By this means social insurance not only spreads out the cost among wage-earners as a group, but also distributes it between employers and workers. Experi- ence with voluntary insurance has demonstrated that the only method of making insurance universal among wage-earners, and of having employers assume their share of the cost, is to make it compulsory. Thus, although beginning in each case with some form of private organization, there has been developed, to meet the peculiar risks which modern industrial workers must endure, a special kind of insurance, depending for its inclusiveness, its financial security, its economical administration, and its effectiveness in reducing the cause of each particular evil, upon an element of social compulsion. Various countries have social insurance against accident and occupational disease, against sickness, against old age and invalidity, against death and the consequent dependency of widows and orphans, and finally against unemployment. In all of this social action an important element of self-defense is not lacking. It is clearly recognized that insurance is 1 See Chapter IX, "Administration.' 25 3 86 PRINCIPLES OF LABOR LEGISLATION the most effective device for protecting society itself against the pressure of incapacitated individuals who otherwise would be thrown upon the community for maintenance. And while attempting to avoid the demoralizing round of charity, by means of an insurance program, there is consciously promoted a system of individual care aimed at the scientific promotion of the worker's efficiency. i. INDUSTRIAL ACCIDENT INSURANCE The first kind of social insurance to be developed exten- sively through legislation in the United States, probably be- cause of the comparative ease of recognizing both the indus- trial cause and the far-reaching extent of the evil, is insur- ance against occupational accidents and diseases, or as it is more popularly termed in this country, workmen's com- pensation. Compensation to the injured workman is based upon the theory that the consumer of economic goods should bear all the expenses incurred in the production of such goods. Among those expenses must be included the pecuniary losses from deaths and injuries occurring in the regular course of produc- tion. Wages lost, medical attendance, and burial expenses, in case of accidental injury or death are all losses which should be considered as a part of the expense of production. If these losses are to be borne by the workman, he indirectly carries part of the expense of production. In order to avoid this, the expense of work-accidents, it is now generally agreed, should be treated like all other expenses of production; it should be borne by the employer in the first instance, and be shifted by him, in the form of increased prices, upon the consumer of those goods in the production of which the in- juries were sustained. Our present compensation laws have passed through a long period of development, and have many precedents. As min- ing and navigation developed in Europe, the workmen of these two industries formed, in the eighteenth century and some- times even earlier, mutual accident insurance associations for their own protection. The above industries were the pioneers in forming such mutual associations largely because each man SOCIAL INSURANCE 387 was greatly dependent for his safety upon the care of his fel- low workmen. 1 In the handicraft production of the middle ages, not only were the workmen very closely related, but there was also a close connection between the master and his servants. Manufacturing in the gilds was conducted on a small scale, and each master had but few helpers. Accidents were not numerous because machinery was not developed, and produc- tion was carried on at low speed. When injuries did occur, the master, at least theoretically, took care of the disabled. This personal relation of employer and employee to a great extent disappears with the development of large scale industry. As the number of employees to each establishment increased, the owner could no longer give them his personal attention and care. The workman gained more personal freedom, but lost the aid of his employer in case of sickness and accident. To recover damages he now had to seek relief by legal proceed- ings, either under the common law or under statutes estab- lishing employers' liability; he had to bring suit against his master. (i) Rules of Employers' Liability The conditions under which the injured could recover in court were based upon a series of rules which included (a) the duties of the employer; (b) the burden of occupational risks; (c) the fellow servant rule; (d) contributory negligence; and (e) assumption of risks. 2 a. Duties of the Employer. It was considered the duty of the employer to use reasonable care in protecting his em- ployees against injury while engaged in his service. 3 Nu- merous court decisions defined this obligation of the employer in considerable detail. He was required to provide a safe place to work, to furnish safe tools and appliances, to con- duct his business in a safe manner, and to select competent fellow servants. But reasonable care required the guarding of only those dangerous conditions of which the employer had 1 United States Commissioner of Labor, Twenty-fourth Anmial Report^ 1909, "Workmen's Insurance and Compensation Systems in Europe," Vol. I, p. 977. 2 See E. H. Downey, History of Work Accident Indemnity, 1912, p. 17. 3 Priestly v. Fowler, 3 Meeson and Welsby, i, 6 (England, 1837). 3 88 PRINCIPLES OF LABOR LEGISLATION knowledge or of which by the exercise of reasonable care he should have had knowledge. 1 It is held by many experts that no matter how great caution is taken against accidents, many mishaps will occur which result in death or injury to the workman. Establishments in which every machine is guarded and where safety work is carried on ably and con- scientiously, will, nevertheless, it is declared, have numerous accidents. These injuries are said to be due to the inherent hazards of the industry; nothing will prevent them. b. Burden of Occupational Risks. It is to these accidents that the principle of the burden of occupational risks applies. The employee assumes the ordinary risks of the employment in which he engages. In an early American case the court stated that "The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption the wage is adjusted accordingly." 2 Freeing the employer from liability thus left a vast number of injuries and deaths as a direct burden upon the workmen and their dependents, with no chance of obtain- ing damages. c. Fellow Servant Rule. The rules holding the employer responsible for exercising reasonable care in protecting his employees, and exempting him from liability for inherent oc- cupational hazards, were recognized uniformly by the courts. The third, or fellow servant rule, involved more serious dif- ficulty. The usual rule of law is that a master is responsible for the negligence or carelessness of his servants in the course of their duties. Since very many accidents to workmen can be traced to the carelessness or negligence of a co-employee, the application of the rule as between fellow servants was felt to be harsh. 3 Exception to the general rule was first taken 1 Magee v. Chicago & Northwestern R. Co., 82 Iowa 249, 48 N. W. 92 1 Farwell i>. Boston & W. R. Co., 4 Metcalf (Mass.) 49, 57 (1842). 1 Consequently the courts, declare Shearman and Redfield in The Law of Negligence, "boldly invented an exception to the general rule of masters' liability, by which servants were deprived of its protection." (x*. w.) SOCIAL INSURANCE 389 by the English Exchequer Court in 1837 in the case of Priestly v. Fowler. 1 A butcher driver's helper was injured by the breaking down of the wagon. He brought suit against the butcher for damages on the grounds that the wagon was in- sufficient for its purpose, and that it had been overloaded. Damages were denied on the ground that if they were allowed the master's liability would extend very far. He might be held liable to the footman who was injured by a defective wagon due to the negligence of the coachmaker, or to the servant for the negligence of the cook in not properly cleaning copper vessels in the kitchen. Besides, the opinion states, the driver's helper "must have known as well as his master, and probably better," that the wagon was insufficient, or overloaded, and might have refused to use it. A similar decision was rendered four years later in America, without mentioning the Priestly case. In this case 2 damages were denied a locomotive fireman who had been injured owing to the negligence of the engineer under whom he worked. It was held that the railroad company was not a guarantor to one employee against the negligence of other employees; that the fireman should have been aware of the perils of his employment, and that the plaintiff was paid for his labor and for the danger to which he was exposed. In 1842 Chief Justice Shaw of Massachusetts gave the fel- low servant rule a definite formulation and a wide application in deciding the case of Farwell v. Boston and Worcester Rail- road Corporation 3 in favor of the defendant. An engineer brought action for damages because he had lost a leg due to the switchman's neglecting to change a switch. Justice Shaw argued that any servant might reasonably anticipate that his associates will at times be careless and negligent ; that this is one f the risks of employment, to which, in legal pre- sumption, the compensation is adjusted. Want of care can be anticipated as much as a coupling out of repair. The brakeman can guard against one as much as against the other being powerless against both. This chain of reasoning was accepted as sound and con- 1 Priestly . Fowler, 3 Meeson and Welsby, I, 6 (England, 1837). 2 Murray v. South Carolina R. Co., I McMullan 385 (1841). 3 Farwell v. Boston and W. R. Co., 4 Metcalf (Mass.) 49 (1842). PRINCIPLES OF LABOR LEGISLATION elusive, and numerous later decisions were based on it. It relieved the master from all liability for an injury sustained on account of the negligence or carelessness of a fellow ser- vant provided the master had exercised reasonable care in his selection. 1 d. Contributory Negligence. According to the doctrine of contributory negligence a plaintiff for damages for an injury occasioned by the fault of the employer must, in order to win his case, establish his own freedom from negligence. Any negligence on the part of the injured, no matter how slight in comparison with that of the employer, will cause him to lose the suit, if without that negligence the accident would not have occurred. Such negligence exists if the employee con- tinues to work under conditions which are apparently danger- ous and which a reasonably prudent man would avoid, or if his own want of due care contributed as a proximate cause to the accident. 2 e. Assumption of Risk. As a last resort to free himself from liability the employer could set up the defense that the injured workman had "assumed" the risk. The risk referred to in this connection is not the ordinary inherent hazard of the occupation, but an abnormal danger of which the em- ployee was fully aware, but in spite of which he continued to work. The principle of assumption of risk has, however, been modified in several states by statutes in favor of the workman. This is particularly true in case of children and of railroad workers. It can easily be seen that with these last four rules, all aiming to relieve the employer of liability, it is extremely dif- ficult for the injured workman to win a suit for damages. In order to gain a favorable verdict he must be able to show that the injury was the immediate result of the employer's failure to exercise ordinary care, and that it was not contrib- uted to in any degree by his own want of ordinary care. Moreover, he cannot recover if the accident was due to an ordinary hazard of the employment, or to the negligence of 1 Seymour D. Thompson, Commentaries on the Law of Nes.lis.ence, IQOI- 1905, Vol. IV, p. 270, 4048. 2 Butterfield t>. Forester, n East 60 (England, 1809); Haley v. Chicago & Northwestern R. Co., 21 Iowa 15 (1866). SOCIAL INSURANCE 39 1 a fellow workman, or to a defect due to the negligence of the employer that was known to the injured and that created a condition under which a prudent man would not have con- tinued to work. Satisfactory statistics are not available to show definitely the proportion of injured men who received indemnity under these liability doctrines. From the meager investigations which have been made, however, it may be concluded that but few recovered damages, and that the amounts were in many cases shamefully small. Under the liability system insurance companies have engaged in carrying the employer's risk. They have expert legal advice, and are able to con- test wage-earners' claims even more effectively than the average employer. It is true that numerous laws have been enacted in most countries attempting to place more liability Upon the employer; Germany passed a law, wide in scope, to that effect in 1871, and Great Britain followed in 1880. The first American employers' liability law was passed in Alabama in 1885, followed by Massachusetts in 1887. Among the best of these laws was the federal statute establishing the liability of railroad companies for injuries to their employees. 1 Notwithstanding all attempted legal regulation, the position of the injured workman was not much improved. To recover he had to go to the courts and had to meet the strong legal opposition of insurance companies or of his employer. Not only are the injured man's chances to win his case very small and the machinery too slow to bring relief when it is most needed, but the system is extremely wasteful. The fol- lowing figtires taken from the records of ten insurance com- panies for a three-year period will substantiate this state- ment : 2 Collected from employers $23,523,585 Absorbed by companies in profits and expenses. 14,963,790 Received by plaintiffs' attorneys (approximate- ly) 1,900,000 Received by injured workmen or their depend- ents (approximately) 6,660,000 United States, Acts 1907-1908, C. 149. 2 New York Commission on Employers' Liability and Other Matters, First Report, 1910, pp. 29-31. 392 PRINCIPLES OF LABOR LEGISLATION Of every $100 paid by the employer in premiums, but $28 reached the workman, and that amount only after a long legal action in many instances. In certain leading industrial states it was found that it required on the average from two to six years to reach final judgment in a fatal accident case under employers' liability. 1 Without question but a small proportion of cases are taken to court, because the injured knows an attempted recovery is but a gamble, with all odds against him. As a rule the in- surance companies act as if their duty under employers' liability is not to compensate the injured, but to defeat their claims. (2) Beginnings of Industrial Accident Insurance The credit for first realizing that in order to furnish certain and adequate relief to the injured workman it was necessary to provide insurance for all laborers, and for all accidents, must be given to Germany. The original bill to this effect was introduced in the Reichstag in 1881, but failed to be adopted. The following year a second bill was introduced providing for sickness and accident insurance. The sickness clauses, including provisions for accident compensation dur- ing the first thirteen weeks of disability, were passed in 1883, but the accident insurance was again defeated. Finally in 1884 a bill providing compulsory insurance against accidents was passed which became effective in October, 1885. a. German System. The German law has been frequently amended and extended in scope, and to-day practically every industry of that country is included. The federal council may exempt non-hazardous establishments upon application, but as late as 1909 no such exemptions had been made. 2 Under the German system the compensation of the injured workman for the first thirteen weeks of disability comes from the sick funds. During the first four weeks he receives 50 per cent., and from the fifth to the thirteenth week, inclu- sive, 66% per cent, of his wages, and the latter proportion is E. H. Downey, History of Work Accident Indemnity in Iowa, p. 79. 'United States Commissioner of Labor, Twenty-fourth Annual Report, Vol. I, p. 993. SOCIAL INSURANCE 393 continued from the accident funds until temporary dis- ability ceases. The sick funds are maintained by contri- butions two-thirds of which are paid by the workmen and one-third by the employers. From the fifth to the thirteenth week the additional 16% per cent, of wages is paid by the employer in whose establishment the accident occurs. Thus accident compensation comes from three sources : (1) From the first to the fourth week of disability, inclusive, from the sick funds; (2) From the fifth to the thirteenth week, inclusive, from the sick fund, and the additional 16% per cent, from the employer; (3) After the thirteenth week from the accident insurance associations composed of employers. During the decade 1886 to 1895 accidents causing a dis- ability of less than thirteen weeks formed 84 per cent, of the total, and the cost of these injuries, paid from the sick funds, is, according to Dr. Bodeker's estimate, 16% per cent, of the total cost of accident insurance. Since the insured work- men pay two-thirds of the expense of the sick funds, they therefore provide about n per cent, of the cost of accident insurance, and the employers 89 per cent. 1 In addition to the monetary benefit, free medical attend- ance, medicines, and appliances are provided. During the first thirteen weeks these costs are paid by the sick fund, and after that by the insurance associations. To bring about a speedy recovery, and to avoid large pensions which would result if the injured were permanently disabled, the insur- ance associations have established numerous hospitals, con- valescent homes, and similar institutions. In case of permanent total disability the injured workman receives 66% per cent, of wages for life. For permanent partial disablement he receives a pension in proportion to the degree of disablement. In computing the amount, the nature of his occupation and training are taken into considera- tion ; for example, the loss of a finger would affect a linotype operator much more seriously than a foundry laborer, and accordingly he would receive a larger pension. 1 United States Commissioner of Labor, Twenty-fourth Annual Report, Vol. I, p. 999. 394 PRINCIPLES OF LABOR LEGISLATION If the accident results in death a funeral benefit is paid in - all cases, whether the deceased has left dependents entitled to survivors' benefits or not. A liberal pension is provided for surviving dependents. The widow receives 20 per cent. - of the average annual earnings of her husband, for life. If she remarries she is given three times the annual amount, or 60 per cent., in a lump sum, but then her benefits cease. If a woman supporting a dependent husband is killed, he receives 20 per cent, of her wages as long as he is unable to support himself. Each child receives 20 per cent, of the wages of the killed parent until the age of fifteen, but the total benefits may not exceed 60 per cent, of the average annual earnings. If there are more than two dependent children in addition to the widow, the benefits are divided equally so as to total 60 per cent. The most important branch of the administrative ma- chinery of the German compulsory insurance law is the mutual - trade associations. Employers in related trades organize their own associations, fix their own rates, and enforce their own safety requirements, and to the special facilities which this method affords is mainly due the conspicuous success of the German system in promoting accident prevention. Each Berufsgenossenschaft, or trade association, has its own constitu- tion, but is closely regulated by the state and the imperial - insurance office. Subordinate to the imperial insurance office is a system of local and superior insurance offices, each com- posed of public officials, with associates elected by and from employers and employees, respectively. Judicial and admin- istrative matters passed upon by the local office may, subject to certain restrictions, be appealed to the superior office, and from that to the imperial office, whose decision is usually final. According to the report of the imperial statistical bureau issued in 1914, over 28,000,000 workmen were insured against accidents in 1912, and $42,500,000 was paid in indemnity. The system is cheaply administered and cases are settled quickly, giving relief when it is most needed. b. Methods in Other Countries. The German insurance sys- tem has been described in detail because it was the first to be introduced, is one of the most efficient, and affords data SOCIAL INSURANCE 395 based on experience from which, in various degrees, other countries gleaned hints to be utilized in drafting their own acts. Great Britain passed a compensation law in 1897 which was frequently amended and amplified in scope until the present law was enacted in I906. 1 All employments, and all injuries arising out of and in the course of employment, are covered. In case of death three years' wages are paid in a lump sum to the dependents. Disability benefits are limited to 50 per cent, of wages, 2 but continue for life if the disability is per- manent. The employer bears the entire cost of compensation, and may either carry his own risk under proper safeguards or insure in a private or mutual company. The principle of industrial accident insurance, or workmen's compensation as it is usually called, is now so generally ac- cepted that over forty foreign countries, including practically all of any industrial importance, have laws of this character covering together some 50,000,000 wage-earners. 3 Benefits range from 50 per cent, to So 4 per cent, of wages, and in most of the important countries medical and surgical aid is ren- dered. To secure the payment of benefits, employers are usually required to insure their risk, often in institutions pre- scribed and controlled by the state. c. Inclusion of Occupational Diseases. Though workmen's 1 For complete summary of this and other European laws see United States Bureau of Labor Statistics, Bulletins No. 203, 1917, pp. 297-350; 24J, 1918, pp. 96-102. 2 Benefits for total incapacity were increased 25 per cent, for the period of the war and for six months thereafter, and beginning January i, 1920, a further "war addition" amendment became effective raising these bene- fits to 75 per cent, above their original amounts. 3 Among the more important foreign countries with workmen's com- pensation systems in 1920, were Argentina, Austria, Belgium, Brazil, Chile, Colombia, Cuba, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Netherlands, New Zealand, Norway, Peru, Portugal, Russia, South Australia, Spain, Sweden, Switzerland, Union of South Africa, six states in Australia, seven in Mexico, and eight provinces of Canada. 4 This latter percentage occurs only in the Swiss law of 1911, Sec. 74, and is payable only during the period of illness immediately following an accident, after which the compensation for permanent total disability is reduced to 70 per cent, of wages. Under both the Swiss and the German laws, however, indemnity may be increased to 100 per cent, of wages in exceptional cases requiring special care. 39 6 PRINCIPLES OP' LABOR LEGISLATION compensation laws originally concerned themselves only with mechanical injuries, such as cuts, broken bones, or loss of members, it soon became obvious that elementary justice required the extension of similar relief to the victims of specific industrial diseases contracted in the course of employment. The first country to take this forward step was Great Britain, which in the act of 1906 included for compensation a schedule of six of the commonest occupational maladies. While South Australia and several Canadian provinces have followed this example, the mother-country has three times expanded its original schedule until in 1920 no fewer than twenty-eight dis- eases were there compensable. These include poisoning by lead, mercury, phosphorus, or arsenic, compressed-air illness, anthrax, a number of miners' ailments, glass- workers' cataract, and telegraphers' and writers' cramp. 1 In other countries, also, the beginnings of similar consideration for victims of occupational maladies are to be noted. An amendment adopted in 1919 to the French accident insurance law in- cludes industrial lead poisoning and mercury poisoning for compensation, and other diseases may be added by subsequent legislation. 2 Because of the peculiarly infectious nature of the disease and its close connection with the occupations in which it occurs, both France and Germany now class anthrax, for compensation purposes, as an accident. In France, also, by the financial law of 1911, employers of miners suffering from ankylostomiasis, or "miners' hookworm," are required to bear the expense of treatment and to pay compensation. Foundations for a broad system of occupational disease in- demnity have, moreover, been laid in Germany 3 and Switzer- land. 4 In the former country the federal council has been given permission, and in the latter it has been ordered, to draw up a list of trade diseases for which compensation shall be paid at the same rate as for trade accidents. Up to the beginning of 1920, however, neither country had drawn up its list. l For complete list see United States Bureau of Labor Statistics, Monthly Labor Review, April, 1919, pp. 206-207. Two diseases are repeated in the schedules in order to cover additional industries. 1 United States Bureau of Labor Statistics, Monthly Labor Review, January, 1920, pp. 259-261. 'German workmen's insurance code, 1911, Article 547. 'Swiss federal law relating to sickness and accident insurance, 1911, Article 68 1 SOCIAL INSURANCE 397 (j) Compensation Legislation in the United States As in other forms of social insurance, to be considered later, the United States acted much later than European countries to provide for the injured workman. The first legislation providing for stated benefits without suit or proof of negli- gence was enacted in Maryland in 1902, in the form of a co- operative insurance law. 1 The law was narrow in scope, covering only a small specific list of industries, and was de- clared unconstitutional in I904. 2 In 1908 Congress enacted a law granting to certain employees of the United States the right to compensation for injuries sustained in the course of employment. In 1910 an act was passed in Montana pro- viding for the maintenance of a state cooperative insurance fund for miners and laborers in and about mines. This also was declared unconstitutional. 3 The first law of general application was passed by New York in 1910. It was made elective for most occupations, but compulsory for an enumerated list of hazardous employments. This statute was declared unconstitutional in 1911 in the case of Ives n. South Buffalo Railway Company, 4 but an amend- ment to the constitution made possible the enactment of a compulsory law in 1914. Other states followed New York's lead, and during the nine years 1911-1919 compensation laws were enacted in forty-two states, 5 in addition to Alaska, Hawaii, and Porto Rico. Moreover, the 1908 law covering federal employees was repealed in favor of the act of 1916, which covers all civilian employees of the United States. In the early days one of the main obstacles to the enactment of effective compensation laws was the question of constitu- tionality. It was maintained that to require an employer to pay damages for an accident for which he was not to blame 1 United States Bureau of Labor Statistics, Bulletin No. 126, p. 30. 2 Franklin v. United Railways and Electric Co. of Baltimore (1904)- Summarized in United States Bureau of Labor, Bulletin No. 57, 1905, pp. 689, 690. 3 Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554 (1911). 4 Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431 (1911). 6 All except Arkansas, Florida, Georgia, Mississippi, North Carolina, and South Carolina. 39 8 PRINCIPLES OF LABOR LEGISLATION was taking property without due process of law, that both employer and employee were deprived of the right^ of trial by jury, and that the employer was charged with liability without fault. In 1917, however, the constitutionality of the chief types of compensation laws was affirmed by the United States Supreme Court in three far-reaching decisions involving the New York, Iowa, and Washington laws. 1 The principal con- stitutional question under the New York compulsory law was whether the statute, by requiring the employer to make fixed payments for his employees' industrial injuries, deprived him of any rights of liberty and property guaranteed him by the, fourteenth amendment to the federal constitution. The Supreme Court ruled unanimously that the enactment of laws compensating for industrial accidents tended to promote the public welfare and was therefore within the police power of the state, saying: "We recognize that the legislation under review does measurably limit the freedom of employer and employee to agree respecting the terms of employment, and that it cannot be supported except on the ground that it is a reasonable exercise of the police power of the state. In our opinion it is fairly supportable upon that ground. And for this reason: The subject-matter in respect of which freedom of contract is restricted is the matter of compensation for human life or limb lost or disability incurred in the course of hazardous employment, and the public has a direct interest in this as affecting the common welfare. '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.' 2 " The Iowa elective law was sustained by a reference to the New York case. The Washington law presented a different issue. In that state employers in specified hazardous occupations are re- quired to pay workmen's compensation premiums to a state insurance fund out of which injured workmen are compen- * New York Central R. Co. v. White, 243 U. S. i88 37 Sup. Ct. 247 (1917); .Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255 (1917;; Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260 . 2 Holden v. Hardy, 169 U. S. 366, 397, 18 Sup. Ct. 383 (1898). SOCIAL INSURANCE 399 sated. In determining whether such enforced contributions were a "fair and reasonable exertion of governmental power" the court thought it "proper to consider: (i) Whether the main object of the legislation is, or reasonably may be deemed to be, of general and public moment, rather than of private and particular interest, so as to furnish a just occasion for such interference with personal liberty and the right of ac- quiring property as necessarily must result from carrying it into effect. (2) Whether the charges imposed upon employers are reasonable in amount, or, on the other hand, so burdensome as to be manifestly oppressive. And (3) whether the burden is fairly distributed, having regard to the causes that give rise to the need for the legislation." In regard to the first point the court deemed the considera- tions advanced in the New York decision "sufficient to sup- port the state of Washington in concluding that the matter of compensation for accidental injuries with resulting loss of life or earning capacity of men employed in hazardous occu- pations is of sufficient public moment to justify making the entire matter of compensation a public concern, to be admin- istered through state agencies." Upon the second point the court said, "no particular con- tention is made that the compensation allowed is unduly large; and it is evident that unless it be so the corresponding burden upon the industry cannot be regarded as excessive if the state is at liberty to impose the entire burden upon' the industry." On the third question, of fair distribution, the court found that "the application of a proper percentage to the pay roll of the industry cannot be deemed an arbitrary adjustment, in view of the legislative declaration that it is "deemed the most accurate method of equitable^ distribution of burden in proportion to relative hazard. ... As further rebutting the suggestion that the imposition is exorbitant or arbitrary, we should accept the declaration of intent that the fund shall ultimately become neither more nor less than self-supporting, and that the rates are subject to future adjustment by the legislature and the classifications to rearrangement according to experience, as plain evidence of an intelligent effort to limit the burden to the requirements of each industry." Although the industry involved in the case, logging, is 400 PRINCIPLES OF LABOR LEGISLATION clearly hazardous, the court took occasion to demolish the objection that the act includes non-hazardous occupations, saying "the question whether any of the industries enumerated in section four is non-hazardous will be proved by experience, and the provisions of the act themselves give sufficient assur- ance that if in any industry there be no accident there will be no assessment, unless for expenses of administration." But most indicative of the present attitude of the United States Supreme Court toward workmen's compensation legis- lation is the following statement: "The act cannot be deemed oppressive to any class of occupation, provided the scale of compensation is reasonable, unless the loss of human life and limb is found in experience to be so great that if charged to the industry it leaves no sufficient margin for reasonable profits. But certainly, if any industry involves so great a human wastage as to leave no fair profit beyond it, the state is at liberty, in the interest of the safety and welfare of its people, to prohibit such an industry altogether." Owing, however, to the adverse decision on the early New York compulsory law in the Ives case, most American com- pensation acts have been made elective. That is, the em- ployer is given his choice of accepting the act or of operating under the liability law; but as an encouragement to the em- ployer to elect compensation, the old liability defenses of fel- low servant's fault, contributory negligence, and assumption of risk, discussed earlier in this chapter, are abrogated or greatly modified. This is frequently called by its opponents "club" legislation, but the courts have sustained it as a valid exercise of legislative power for a public end. The relief which a compensation act gives to the injured workman depends upon (a) the scope of the law, (6) the scale of compensation, (c) the provisions for rehabilitation, (d) the method of administration, and (e) the security for payment of awards. A liberal law, that is, one which provides a high rate of indemnity, will be of little service unless it applies to many cases of accidents, and conversely a law covering many or all cases will not accomplish what is intended unless the benefits provided are reasonably high. Again, the practical results obtained, no matter how liberal the law, will be seri- ously impaired unless means are provided for effective admin- SOCIAL INSURANCE 401 istration and for securing the actual payment to the injured worker or to his dependents of the amount awarded. ,Jo) Scope of Laws. A compensation system should apply to all employments and cover all injuries. In the early days of the movement, however, partly because of administrative difficulties and partly because of the incompleteness of public education on the subject, the exclusion of certain classes of workers and of certain sorts of injuries was found temporarily advisable. (a) Employments Included. Nine main groups of workers are commonly excluded from American state compensation laws. In the probable order of their importance these are: (i) Employees in supposedly non-hazardous occupations; (2) agricultural laborers; (3) domestic servants; (4) employees in interstate commerce; (5) workmen in establishments em- ploying fewer than a given number of persons; (6) public employees; (7) casual laborers; (8) those not engaged in the regular course of the employer's business; and (9) those in employments not conducted for gain. As a result of these exclusions the proportion of employees protected in the various states ranged in 1920 from 99.8 per cent, in New Jersey to only 20.5 per cent, in Porto Rico. 1 Altogether it was officially estimated at the end of 1917, when compensa- tion laws existed in forty states and territories, that there were in these states and territories alone over 8,500,000 Amer- ican wage-earners, or nearly 40 per cent, of the total number within the area, who could "not possibly be covered under any existing compensation act." 2 Of the various exclusions mentioned, that of workers in "non-hazardous" occupations is particularly indefensible. A laborer may be killed no matter how non-hazardous the : occupation seems. As has often been stated, it is that indus- try in which a person is injured which is hazardous. The exclusion of casual workers has resulted in much confusion. The meaning of the term is not clear, and the various courts 1 United States Bureau of Labor Statistics, Monthly Labor Review, January, 1920, p. 237. 2 United States Bureau of Labor Statistics, Bulletin No. 240, "Com- parison of Workmen's Compensation Laws of the United States up to December 31, 1917," Carl Hookstadt, p. 29. 402 PRINCIPLES OF LABOR LEGISLATION and commissions differ in construing it. Longshoremen, for example, who work only when a boat is to be loaded or un- loaded, have been held not to be casual employees, as the irregularity of their employment is inherent in shipping by sea. On the other hand, waiters and teamsters, hired for particular jobs lasting only a day or thereabouts, have been held to be casuals. One state 1 has interpreted casual em- ployment to mean all lasting less than a week. Exemption of establishments with a small number of employees is based on the theory that in such workplaces the accident risk is less. When, however, the exemption is extended to all establish- ments with fewer than sixteen employees, 2 very few are left to benefit by the change from employers' liability to work- men's compensation. Employees in interstate commerce, numbering fully 1,300,000, do not come under state compen- sation laws because Congress took jurisdiction when it enacted its employers' liability law covering this field. By a five to four decision the United States Supreme Court held that the work of longshoremen was ''maritime in nature," and that therefore they came under federal admiralty jurisdiction and were not covered by state workmen's compensation laws. 3 Within a few months Congress adopted an amendment to the judicial code which extended the benefits of state compensa- tion acts to this large and important group of workmen. 4 Early in 1920, by another five to four decision, the Supreme Court declared the amendment to the judicial code to be itself un- constitutional . 5 (6) Injuries Included. All injuries sustained in the course of employment should be compensated, except those occasioned by the wilful intention of the employee to bring about the injury or death of himself or his fellow workmen. These are clearly not a hazard of the industry, and should not be com- 1 pensated. Some states also exclude accidents caused in part by the intoxication of the injured employee. Such exclusion is likely, however, to cause litigation over the question of whether or not the employee was "intoxicated"; and since 1 California. 2 Alabama, Laws 1919, No. 245. 8 Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 525 (1917). 1 Public 82, 6sth Congress, ist Session. 6 Knickerbocker Ice Co. v. Stewart (May 17, 1920). SOCIAL INSURANCE 403 compensation legislation aims at preventing litigation and securing prompt aid, limitations of this sort are to be depre- cated. Moreover, the safety of fellow workmen requires that the employer be discouraged from hiring men who are prone to intoxication, and an excellent method of accomplish- ing this result is to make subject to compensation all acci- dents occurring to such employees. In order to induce the workman to make use of the safety appliances supplied by his employer, the compensation may be reduced if he wilfully fails to use such guards and appliances. On the other hand, the compensation should be increased in the same proportion if the employer fails to provide the proper devices, and the laws of some states include penalties of this nature. In Wisconsin, for example, the injured receives an increase of 15 per cent, in compensation if the employer did not provide guards as required by law, but, on the other hand, his compensation is reduced 15 per cent, if he fails to use the guards when they are provided. (c) Occupational Diseases. The inclusion of occupational diseases in compensation laws has been much discussed in America.. It is recognized that numerous diseases are con- tributed to by the work which a man is doing. Working at a dusty occupation causes tuberculosis. Employments re- quiring sudden changes in temperature are instrumental in bringing about pneumonia and other organic ailments. To cover all these diseases would, however, make a compensa- tion law very complex and difficult to administer, and such disabilities are probably better taken care of under health insurance. 1 Nevertheless, there are some diseases which arei I so plainly and directly caused by the nature of the employment] (that they should unquestionably be included. Among these are lead, mercury, and phosphorus poisoning, compressed-air illness, anthrax, and a number of fatigue diseases such as miners' nystagmus and telegraphers' cramp. Massachusetts has been paying compensation for such injuries regularly under its act, and by 1920 the laws of California, Connecticut, New York, and Wisconsin had been amended to permit similar payments. The plan of including occupational diseases as 1 See "Health Insurance," p. 415. 4 o 4 PRINCIPLES OF LABOR LEGISLATION " personal injuries" was likewise adopted by Congress in the law covering federal civilian employees. ffe Scale of Compensation. The object of indemnity is two- fo| f^t and more important, to restore the workman's earn- ing power as completely and quickly as possible, so that society will not be burdened with disabled human beings, and second, to provide for the support of the family while the surgical and medical treatment is being given. ~T6~eflect the~former it is imperative that he receive efficient medical and surgical care. (a) Medical Attendance. The importance of medical at- tendance is often underestimated. Proper, immediate care tends not only to reduce the period of disability, but also to diminish the number of serious, perhaps permanent complica- tions. Lifelong impairment of earning capacity frequently re- sults from improper care of fractures; infections or "blood- poisoning" could be almost eliminated by efficient immediate attention. Of 721 infections reported to the Wisconsin In- dustrial Commission during a two-year period, about 600 were the result of small scratches and breaks of the skin. 1 These cases represented a total of 12,500 working days lost, and, under the Wisconsin law, a compensation of about $40,000. Had proper care been provided, this large loss of time and money could have been avoided. Full medical aid at the employer's cost is of benefit to the workman in that it relieves his suffering, reduces the period of disability, and permits his return to full earning capacity in shorter time; at the same time, in virtue of this fact, it is beneficial to the employer inasmuch as the amount of compensation is reduced. If the wage-earner is required to pay for his own medical treatment, he will not receive as good care. The average laborer has little means to pay for good service, even when earning full wages. When disabled and receiving only a part of his wages, he is even less able to pro- vide himself with proper care. The amount of medical aid, in proportion to the total in- demnity, is large. During 1919 awards totaling $18,500,000 were made to injured workmen in New York. Of this amount it is estimated that approximately $3,750,000, or about 20 1 Industrial Commission of Wisconsin, Shop Bulletin No. 5. SOCIAL INSURANCE 405 per cent., was for medical aid. 1 Thus it is evident that medi- cal care is a very important factor in a compensation law and should not be underestimated. It is of such importance to the welfare of the injured and their dependents that the law should require the giving of full free medical attendance, medicines and appliances, and should impose a limit neither in time nor in amount. Where such a policy has been followed, besides vastly benefiting the injured it has achieved marvelous re- sults in preventing permanent impairment. America is gradually waking up to the economy of liberality in this respect, but while most states provide for medical care, the majority of them still impose either a time limit, an amount limit, or both. The time limits range from two weeks to ninety days, while the amount varies from $50 to $600. An increasing number of states, however, are giving their ad- ministrative boards discretion to increase the period or amount. It is evident that in those states having low limits a large part of the medical care must be borne by the injured. The amounts may be sufficient to take care of the less serious in- juries, but in case of accidents resulting in fractures, disloca- tions, and serious sprains a large part of the burden falls on the workman himself. (b) Waiting Period. It is customary, in compensation laws, to provide no monetary benefits for the first few days of dis- ability. The intervening time is known as the "waiting period" and its object is to prevent malingering; that is, to prevent a slightly injured man from pretending inability to work, with the expectation of drawing part of his wages. On the other hand, if the period is too long it will prove a hard- ship to the injured. The proper length of the period is hard to determine and varies with individual cases, but it seems that three days is sufficient. 2 This view is upheld by actual accident experience. Studies of accidents made by Dr. I. M. Rubinow and by the Wisconsin Industrial Commission show that about three-quarters of all accidents requiring medical attendance terminate within two weeks, and that two-thirds 1 Figures obtained from New York State Industrial Commission. 2 The American Association for Labor Legislation recommends a waiting period of not less than three nor more than seven days. See its Standards for Workmen's Compensation Laws, sixth annual revised edition, 1920, p. 4, 4 o6 PRINCIPLES OF LABOR LEGISLATION terminate within one week. Of these two-thirds, one-half cause no disability other than on the day when the accident occurs, and one-quarter cause disability lasting from one to three days, while only one-quarter result in disability extending over more than three days. For example, a total of 36,000 accidents requir- ing medical attendance would be distributed about as follows : Length of Disability Number of Accidents Per Cent. Two weeks and more 9,000 One week or more, but less than two weeks 3>oo Three days or more, but less than one week. . . 6,000 More than one, but less than three days 6,000 One day (day of accident) 12,000 Total 36,000 loo Hence, if the waiting period is two weeks, only about a quarter, and if it is seven days, only one-third, of the injured receive compensation. By reducing the period to three days, one- half of those injured would be entitled to benefits. In a small number of states there is no waiting period and compensation begins on the day of accident. Over half of the states set a period of seven days or less, and most of the others provide for from ten to fourteen days. In some, how- ever, compensation is paid from the day of injury in case dis- ability continues for more than a specified period, as two, four, or eight weeks. Since the large majority of accidents cause disability which terminates in a short time, it is impor- tant that the period during which no compensation is paid be made short. A short waiting period is also an inducement for the employer or insurance company to render the best treatment to the injured. The sooner the man is able to return to work the less the compensation will be, hence small accidents will be taken care of in a much better way. (c) Compensation for Total Disability. Injuries for which compensation is paid may be divided on the basis of their severity into three large groups, namely (i) death; (2) partial disability or impairment of earning capacity such as the am- putation or loss of function of a member; and (3) total dis- ability of either a permanent or a temporary nature. The vast majority of accidents result in total temporary disability. SOCIAL INSURANCE 407 The best American laws, of which the acts of North Dakota and Ohio, and the federal statute covering federal employees, are examples, award to the disabled workman 66% per cent, of wages (within certain limits) during the entire period of dis- ability. In permanent cases, of course, this means benefits for life. The limits referred to are in North Dakota a maxi- mum payment of $20 a week and a minimum of $6 a week, except that if full wages be less than $6 full wages are paid. Many of the laws, however, contain provisions far less liberal. In some states the percentage of wages paid is 65, 60, or 55 per cent., and in about one-third of American commonwealths which have compensation laws it was in 1920 still as low as 50 per cent. The weekly maximum, also, is often lower than in North Dakota, being sometimes $15, or in a few cases $10. Besides granting a low percentage of wages, frequently held down by a weekly maximum limit, most states still further restrict the total amount to be recovered, either directly or what amounts to the same thing by stating a maximum period beyond which compensation is no longer payable. Time limitations for total permanent disability vary from 208 to 550 weeks, and money limitations from $4,000 to $6>ooo. The reason for these unprogressive restrictions is not hard to find. It is that our compensation laws are based upon the idea of merely keeping the injured and his family from star- vation, rather than upon the principle of replacing wage loss. The common 50 per cent, scale is obviously insufficient to keep a family from hardship. Despite spectacular instances to the contrary, most workmen hardly receive when employed enough to pay their current living expenses, and when their income is cut in two these expenses cannot be met. The low weekly maxima fixed in many states intensify the depriva- tion. A family whose head receives ordinarily $40 or $50 a week has a fairly high standard of living; and if in case of accident the maximum recoverable is limited to $10 or $15 weekly, that standard cannot be maintained. This is espe- cially true if disability is of long continuance, yet some states which fix a $12 maximum for the first 400 weeks of disability reduce that sum thereafter in some instances to as low as $5 a week. These excessive limitations upon the amount of compensa- 4 o8 PRINCIPLES OF LABOR LEGISLATION tion work considerable hardship to the cases which they affect, and should not be included in the law If the accident results in permanent total disability, the injured should receive two-thirds of his wages for life. Nothing short of this will bring the proper relief. With a two-thirds normal income the family will be deprived of some things, but still the amount is sufficient to maintain about the same standard of living, and even in the lower-paid classes to keep the family from de- pendence on charity. Under our system of laws children are required to go to school until a certain age, which means considerable expense. If in case of accident causing a total loss of earning capacity no proper compensation is provided, or if the compensation period is limited, it frequently means disintegration of the family. (d) Compensation for Partial Disability. Compensation for permanent partial disability is based in most states upon a fixed schedule of a certain number of weeks' benefit for each specific dismemberment, such as fifteen weeks for the loss of a little finger, 125 weeks for an eye, or 215 weeks for a leg. While this system of a fixed charge for each dismemberment, regardless of its effect upon earning power, is easily adminis- tered, it is open to serious criticism on the -grounds of arbitrari- ness and injustice. A system like that in use in California, in which partial disability is defined as a proportion of the loss of earning power, is more difficult to administer, but results in more equitable settlements. In response to the criticism that the number of weeks' benefit allowed by the fixed injury schedule is too small there has been a tendency to increase the specific periods, but the best thought is now against this method and in favor of indemnifying on the basis of the loss of earning power. For this purpose and to facilitate admin- istration California has worked out a schedule showing the percentage of impairment in earning capacity which each specific injury may be expected to cause to a worker of any given age in any given occupation in the state. If the injured suffering a permanent impairment of earning capacity is a minor, his compensation should be increased until he reaches the age of twenty-one, as his wages would probably have increased had he not been injured. Several of our states already take cognizance of this fact, and the number is growing. SOCIAL INSURANCE 409 (e) Compensation for Death. If the injury results in death a funeral benefit should be paid in all cases, whether or not the deceased had dependents entitled to compensation. About $100 has usually been regarded as sufficient to cover all essen- tial funeral charges. Some states have laws providing funeral benefits only if there are no dependents entitled to compensa- tion, but most grant funeral benefits in all cases. Most states have thus far not been very liberal in prescribing the amount of compensation to be paid to dependents. Very few of them grant pensions to widows for life or until remar- riage. North Dakota, one of the most liberal states in 1920, prescribed 35 per cent, of wages for the widow until death or remarriage and 10 per cent, additional for each child, the total not to exceed 66^ per cent. A few states limit the death benefit to a specified monthly amount, such as $35 or $50, while others set a maximum for the total, varying from $3,000 to $6,000. A life benefit to the widow and additional amounts for each child up to the age of eighteen is the only rational system to adopt. Statistics show that the average age of injured work- men is about thirty-two years. A young family which loses its supporter at such an age cannot exist very long on $3,000 or less. So small an amount will mean that the family must lower its standard of living, and that the children will not receive the proper care and education. Here again compen- sation is regarded more in the light of a means of preventing starvation than as a reimbursement for the loss of earning power. It may be expected that in the future more and more states will grant to the widow a pension for life or during the period of widowhood. If there are no depend- ents, the death benefit should be paid to a special fund used for the purpose of rehabilitating industrial cripples. This last provision is found in a few laws, but if there are no de- pendents most states provide for funeral benefit only. Full death benefits in all cases would tend to wipe out the de- sirability to employers of engaging single men with no de- pendents, or foreigners if the law excludes non-resident alien dependents. To what extent this discrimination is practised is difficult to discover. The question as to whether alien non-resident dependents 4 io PRINCIPLES OF LABOR LEGISLATION should be entitled to death benefit has been considerably dis- cussed, and a few states still expressly exclude them. In a number of other states they are expressly included, and else- where, as no mention is made of them, they are apparently included by implication. There seems to be little justifica- tion for excluding non-resident dependent; if our industry has been responsible for the loss of a family supporter, due remuneration should be made regardless of nationality or residence. Q Rehabilitation. Of recent years compensation for in- juries has come to mean more than partial reimbursement for monetary loss. Considerations perhaps economic in their origin, but humane in their outcome have led to the view that no law truly compensates for injury which fails to re- habilitate. Rehabilitation includes all that can be done by! surgery, general reeducation, technical retraining, and assist- ance in finding reemployment, to place the injured worker on] his feet again as a self-supporting citizen. Eleven states had by 1920 made provision for rehabilitation of their industrial cripples. Plans usually call for cooperation between the state indus- trial accident board, the state educational system, and the state employment service. A bill to grant federal aid on a basis of dollar for dollar to states undertaking to rehabilitate industrial cripples was passed by Congress in 1920. G\ Method of Administration. There are two general ways of Iraministering compensation laws. One is to appoint a cen- tral board with general powers of enforcing the law, and the other is to create no machinery for the administration of the act, but to provide that all questions arising shall be settled by the courts. Of the states having laws in 1920, less than a quarter, most of which were of little industrial importance, had no central administrative body and left the administration to^the courts. All other states have adopted the central ad- ministrative plan. Investigations made by the National Civic Federation and the American Federation of Labor, 1 and by the American As- 1 Report upon Operation of State Laws, Senate Document No. 410. Congress, 2d Session. SOCIAL INSURANCE 411 sociation for Labor Legislation, 1 as well as by the United States Bureau of Labor Statistics, indicate that the adminis- trative board plan is much superior to the court procedure scheme. The first two studies agreed in estimating that in New Jersey not over 60 per cent, of the amounts payable under the statute were being paid, and the report of the Association for Labor Legislation made it clear that the court procedure plan was mainly responsible for this defeat of the legislative intent. The chief flaws in the court system were pointed out to be (i) the delay of court procedure, (2) the cost of court procedure, and (3) the unfitness of the courts for the settle- ment of compensation claims. The New Jersey statute was subsequently amended to provide for the board system of administration. Prompt, honest, and full compensation, and medical aid as required, are the vital factors in bringing relief as desired by the law, and to achieve these purposes a central board with broad powers is essential. States with central boards having full power to make rules and regulations require receipts to be filed showing actual payment of compensation, and since they provide for arbitration hearings in cases of dispute there is little danger of fraud and deception of workmen, arid pay- ments are promptly made. The board should consist of three or five members appointed by the governor and should have power to employ necessary assistants. To insure their ade- quate attention to the responsible duties of their position, its members should be required to devote their entire time to its work. ^ Security of Payment. In order to protect the employer, as well as the workmen, liability under the compensation laws is commonly covered by some form of insurance. Should several of his men meet with a serious accident at one time, the small shop-owner or contractor would not be financially able to pay the compensation. For this reason most states compel employers to insure their risk unless they can give satisfactory evidence that they are able to bear losses due to accident even if very serious. This, of course, means that 1 "Three Years under the New Jersey Workmen's Compensation Law,". American Labor Legislation Review, March, 1915, pp. 31-102. 4 i2 PRINCIPLES OF LABOR LEGISLATION practically all small employers will carry insurance, while many large companies will carry their risk themselves. The carrying by a concern of its own risk is sometimes called "self -insurance," and in addition thereto three other methods have been developed: (i) insurance in a state fund; (2) insurance in a stock company; and (3) insurance in a mutual or interinsurance company. State insurance funds are based on the principle that since the state by the passage of a workmen's compensation act has created a new obligation on the employer, it should pro- vide him with the means of fulfilling it economically. Such funds have been established in nearly half of the states, in- cluding California, New York, North Dakota, Ohio, Oregon, and Washington. Sometimes insurance in such a fund is compulsory, 1 while some other states permit insurance in authorized private companies. Short as their experience has been, the success of the efficiently managed state fund is undoubted. The New York state fund found its expenses in its first six months' experience to be only 17 per cent, of premiums, and even this low proportion was cut to 8.5 per cent, during 1917. Notwithstanding its rates are lower than those of the casualty companies, the fund has several times declared dividends, and it is estimated by an official investigating commissioner that those New York employers who have selected state insurance have saved $4,000,000 in four and one-half years. 2 The proportion of premiums ab- sorbed by administrative expenses is even less in the case of exclusive 'state funds than in the case of competitive funds. By 1917 the exclusive state funds in Oregon, West Virginia, and Wyoming had reduced their expense ratios to 5.4, 4.6, and 2.6 per cent, respectively. The Ohio fund in 1918 had achieved an expense ratio as low as 3.5 per cent, and claimed to have saved employers over $6,000,000 within the year. The funds of Ohio, New York, and Pennsylvania have been subjected to critical examination by official commissions. The consulting actuary who was called in an advisory capacity By 1920, in Nevada, North Dakota, Ohio, Oregon, Washington, Wyoming. 2 Report of Investigation by Jeremiah F. Connor, 1919, p. 26. SOCIAL INSURANCE 413 by all three commissions says, as a result of his examination into the accounts and administrative procedure of the funds: "State funds for workmen's compensation insurance are shown by my investigations to be extraordinarily successful. They are financially sound. They are operated on the strictest actuarial principles. They reduce management expenses to a minimum. They have made steady progress even under competitive conditions. They permit increasingly liberal benefits for injured workers and their families. They result in enormous savings to industry." x Stock companies carry on business for the profit of their stockholders. As a consequence of their large business solicit- ing organization, comprising thousands of agents, their manag- ing expenses are excessively high. In Wisconsin in 1914 the operating expenses of these companies were 38 per cent, of earned premiums, or 79 per cent, of compensation benefits. The average expense ratio of casualty companies in 1919 was about 37.5 per cent. Mutual insurance companies seek the protection of their own members, who are the policy holders. They do not need the large, expensive organization which a stock company must have, and therefore their managing expenses are lower. Mutual insurance is insurance at actual cost, any excess of premium remaining the property of the policyholder and being refunded in the form of dividends. In the state last cited the operating expenses of these companies were only 18 per cent, of earned premiums. As a result of these low operating expenses mutuals can sell insurance at about 25 per cent, lower rates than stock companies. A strong feature of the mutual insurance method, provided it be made general and brought under close supervision, is the added inducement to employers to do their own factory inspection. Such volun- tary inspection, if stimulated by the financial inducement of reduced insurance rates for safer conditions, has generally been found even more effective than state inspection. The premiums charged for workmen's compensation insur- ance obviously depend greatly upon the benefits provided 1 Miles M. Dawson, "State Accident Insurance in America a Demon- strated Success," American Labor Legislation Review, March, 1920, pp. 8-14. 4 i4 PRINCIPLES OF LABOR LEGISLATION by the compensation act, and thus we have different rates in the various states. Another factor which largely determines the insurance rate is the hazard of the industry. Thus we have one rate for logging, one for machine shops, one for clerical pursuits, and so on. But even in establishments of the same industrial group widely different hazards will be found. One company may perhaps take great interest in safety work, while another does not. The former would be a better risk than the latter and is entitled to a lower rate. This allowance is accomplished under a merit rating system. Instead of one flat rate for an entire industry, this system seeks to adjust the rate of each employer to the hazard of his particular establishment. A schedule of credits and charges is provided, so that the employer receives credit for conditions tending to reduce or prevent accidents, and, conversely, he is charged for conditions conducive to accidents. The feature of accident prevention just alluded to is too often underestimated when discussing compensation laws. After all, to prevent the injury is of greater significance than to provide compensation for it; accident prevention is the greatest feature of a comprehensive accident indemnity plan. The accident prevention or safety movement has spread rapidly in the last few years, and the chief factor in this de- velopment is the growing correlation between accident pre- vention and compensation. State agencies are usually effec- tive in accident prevention work to the degree that they secure the cooperation of employers and of workmen. Their main function consists in educating these two in methods of safety. State agencies can order the application of mechani- cal safeguards. Their rules afford standards, But their inspect- ors can do but little in comparison with what the employer and employee can do, under the stimulus of an adequate compensation system. Neither insurance companies nor state funds have power to compel the safeguarding of machinery, but they can fre- quently attain the same end by increasing or reducing the insurance rates under the merit rating system previously dis- cussed. Many companies now have a force of inspectors who investigate the risk before the final rate is computed. During SOCIAL INSURANCE 415 1914 the amount expended on factory inspection and accident prevention by insurance companies in Wisconsin equaled 2.6 per cent, of the total earned premium. What has been ac- complished through the cooperation of these agencies cannot be determined because accident statistics in this country have never been adequately compiled in a comparable manner until recent years. The indications, however, are that the number of fatalities and serious injuries is gradually being reduced. C. W. Price, general manager of the National Safety Council, states that during the five years when he was connected with the Wisconsin Industrial Commission accidental deaths were reduced 61 per cent. "One-half of the credit for this accom- plishment," he says, "must be given to the stimulus which the compensation law gave to the whole safety movement." l In order to secure more satisfactory industrial accident and occupational disease statistics for purposes of prevention as well as for rate-making, a number of government bureaus and interested organizations have jointly engaged in working out uniform industry classifications and uniform methods of re- porting. 2 If the classifications agreed upon are finally adopted in all states, the occupational accident and disease statistics will be comparable, and a vast amount of valuable information will then be available. 2. HEALTH INSURANCE The development of machinery, the expansion of industry, and the growth of the wage-earning class have not only brought into existence the problem of industrial accident, but have also added importance to the question of the wage-earner's ill health. Since a large amount of the worker's time and energy are expended in the workshop, it is natural that in- dustry and the conditions connected with it are among the important factors seriously affecting his health. Foresight, consequently, has led to the introduction of health insurance, which is gradually being extended to cover all occupations, even those in which the risk to health is less obvious. 1 American Labor Legislation Review, March, 1920, p. 26. 2 See "Reporting," pp. 325-332. 416 PRINCIPLES OF LABOR LEGISLATION (i) Early Steps in Health Insurance The importance of adequate provision in case of illness or invalidity was recognized by the workers long before the era of social insurance. As early as the middle ages the insuffi- ciency of individual action was realized, and a more satis- factory arrangement, that of insurance, was initiated by the mediaeval gilds. Under these early plans insurance was purely voluntary and the workers had to bear the full cost. This optional unassisted form of health insurance still exists in many civilized countries. In this country it is provided to a limited extent by trade unions, fraternal societies, estab- lishment funds, 1 and insurance companies. Except for the device of "group insurance," by which a few large concerns have insured their employees without charge to them in a commercial company, it is the only form of health insurance so far in operation here. But under optional insurance most workers are either unwilling or unable to make regular out- lays for the premium, and thus are left without the much- needed insurance protection. Other weaknesses frequently charged against the system are inefficiency of management, inadequacy, lack of state supervision, financial instability, and, in the case of profit-making insurance companies, exces- sive cost. A remedy for these defects was offered in the device of government subsidies and control. This measure marked the beginning of the second stage in the history of health insur- ance and directly prepared the way for the compulsory prin- ciple. The aim of government subsidies is to relieve the worker from a part of the burden and thus to stimulate in- surance; the aim of control is to secure efficient management. Subsidies are usually given to the so-called recognized societies, that is, health insurance organizations which answer certain requirements and submit to government regulations. The system of subsidized insurance was first introduced in Sweden in 1891, and existed in 1920 in six countries: Sweden, Denmark, Belgium, France, Iceland, and Switzerland. The 1 Funds organized "among the workers in one plant or establishment, usually under the control of the employer. SOCIAL INSURANCE 417 financial assistance granted in these countries and the ''gov- ernment supervision, potent though they are, cannot be ex- pected to be a very vigorous stimulus to insurance among the 2lasses most in need of it. Obviously compulsory insurance, transferring a considerable part of the burden to industry and including in the system those workers who most require this protection, is a more effective way of meeting the need. (2) Compulsory Health Insurance Long before 1883, the first date in the official history of social insurance, there existed in several states of Europe insurance associations in, which the elements of compulsory state supervised insurance were found. It was left, however, for Germany first to gather, in the year mentioned, these dis- persed components into one coordinated unit. By 1920 legis- lation had been enacted in Austria, Hungary, Luxemburg, Nor- way, Servia, Great Britain, Russia, Roumania, Holland, Portu- gal, and Czechoslovakia, and in Poland through a decree sub- ject to ratification by the legislature. In several other countries, including Italy, Belgium, Sweden, and America, the principle of compulsory health insurance was under discussion. Health insurance legislation has generally recognized the existing mutual sick benefit funds of various kinds, such as fraternal societies, trade unions, and establishment funds, which were allowed to continue business, provided they com- plied with the regulations imposed upon them by the new law. In some countries the law also brought into existence new insurance associations, the local sick funds, for the insurance of persons not claiming membership in any other society. The scope of health insurance legislation varies in the dif- ferent countries. The early legislation was rather restricted, but later amendments have in many cases increased the num- bers covered. Thus, for example, the German legislation which covered, in 1885, 4,671,000 persons, or 10 per cent, of the total population, was in 1911 amended to include 14,- 000,000, or 22 per cent, of the population, and its scope was further broadened after the revolution of 1918. In Norway all workers are included whose earnings are below a specified amount. The income limits were raised in 1915. 27 4 i8 PRINCIPLES OF LABOR LEGISLATION The noteworthy act of Great Britain, passed in 1911, in- cludes within its scope all manual laborers between sixteen and seventy. Persons not employed at manual labor, such as clerks and agents, are compelled to insure if their earnings are less than $1,250 a year. Credit should be given to the legislators and administrators who found it possible to include from the outset both casual workers and homeworkers, even though this necessitated special arrangements for collecting contributions. Within the insured groups, persons may be exempted if they can prove that they have a regular income from other sources equal to $130 a year, or that they are not dependent for a livelihood upon the earnings of their insured occupation. In addition, certain classes of occupations are excluded, such as employment under the crown, because the terms of employment already offer provision in case of ill- ness. The exceptions have proven numerically unimportant, so that during the first year of operation 13,742,000 individ- uals were insured, or nearly 30 per cent, of the total popula- tion. 1 Recent European legislation tends to be even more inclusive. For example, in Czechoslovakia the law embraces all persons employed under a contract of hire or apprenticeship, regard- less of the remuneration received. In Sweden the recom- mendations urge insurance for all with incomes below a specified limit, without regard to whether they are employed or not. Under these provisions it is estimated that three- fifths of the population will be insured The cost of insurance is usually distributed between the worker and the employer, and in some countries the govern- ment also contributes a share. By this device the employer is compelled to bear some portion of the cost of sickness among his employees, and the worker receives larger benefits than he could purchase unaided. A frequent distribution of the costs in continental legislation places two-thirds of the cost upon the insured worker and one-third upon his employer. In Norway the worker contributes six-tenths, the employer one- tenth, the commune one-tenth, and the state the remaining 1 For an excellent study of the actual operation of the British act and of its administrative problems, see The New Statesman; "Special Supple- ment on the Working of the Insurance Act," March 14 1914 SOCIAL INSURANCE 419 two-tenths. In continental legislation the premium is fre- quently calculated as a percentage of wages. The employees are divided into wage groups, and the premiums and benefits vary with an increase in the worker's income. Great Britain, however, has not followed the continental practice, but has adopted a uniform rate of contributions, regardless of wage differences. The insured male worker pays weekly 8 cents, the female worker 6 cents; in either case the employer adds 6 cents and the state 4 cents. To mitigate any hardship on the low-paid worker, special provisions are made for those earning less than at the rate of 62^ cents a day, whereby the worker's cpntribution is diminished, and that of the em- ployer and state increased. In return for their contributions, workers usually receive both a money benefit and medical care. The cash benefits paid in time of sickness are not equal to the full wage, but are 50 per cent, in Germany, and 60 per cent, in Norway and Czechoslovakia. England has been consistent with her flat rate contributions and has adopted a system of uniform benefits of $2.50 a week for men, and $1.87 a week for women. 1 In general, benefit is not allowed for the first three days of illness, and is paid for only a limited number of weeks in a year usually for twenty-six weeks, as in England. Benefit is usually made conditional upon a doctor's certificate stating that the applicant is incapable of work. When the attending physician certifies that the patient has recovered, sick benefit ceases. The German and British acts differ in the character of the disabilities " which they include. Germany is typical of the countries which have included "invalidity" chronic illness or impairment of earning capacity in the old age insurance act, so that only temporary illnesses are covered by health insurance. Great Britain, on the other hand, has included "invalidity" in the provision for health insurance. The in- validity contemplated by the British legislators, however, is 1 Early in 1920 the British government introduced a bill to increase the sick benefits of men to $3.75 a week and those of women to $3, to raise the disablement benefit of both men and women to $1.87 and the maternity benefit to $10. To help meet this increase of benefits, the bill proposed raising the contributions of both men and women by 6 cents, of which the workers would pay 2 cents and the employers 4 cents. 420 PRINCIPLES OF LABOR LEGISLATION limited to incapacity for work because of disease or disable- ment, as distinguished from reduction in earning power. The British grouping of invalidity with sickness benefit is probably due to the existence of a state system of old age pensions. As the recipients do not contribute to the pension, it was desirable to make provision for invalidity in the health insurance sys- tem, which is contributory. The British invalidity benefit consists of a weekly payment of $1.25 as long as incapacity for work continues, though it ceases when the beneficiary reaches the age of seventy and becomes entitled to an old age pension. Medical attendance is furnished by many insurance systems, including those of Germany, Great Britain, and Norway. If an insurance system is to accomplish its ultimate object of improving the health of the workers, it is of great importance that they receive treatment whereby they may be restored to health. Furthermore, it is financially important to the in- surance funds that sick members shall recover as quickly as possible and so reduce the amounts expended upon sick benefit. The medical care provided usually includes not only physi- cians' services, but also hospital treatment when needed and the necessary medicines and appliances, such as spectacles, trusses, and crutches. In Great Britain, where medical care was from the beginning less liberal and where specialist ser- vices and hospital care were not provided, the inadequacy at once became manifest and by 1920 a strong movement for more liberal benefits was under way. In providing medical care for insured persons, two funda- mental safeguards to the economic interest 'of the medical profession have developed which are observed in the best practice, namely, free choice of doctor by the patient, and collective agreements between the doctors and the adminis- trative authorities. Free choice of doctor prevents insurance practice from being monopolized by a few physicians and also permits the insured to apply for treatment to practitioners in whom they place confidence. Collective agreements between the doctors and the authorities have the same value for the medical profession that collective bargaining has for organ- ized workers. In Great Britain, for example, free choice of SOCIAL INSURANCE 421 doctor is recognized by legislation, while the more detailed arrangements with the doctors are made between the medical men and the local insurance committees. In practice the details of the agreement are settled by negotiations between authorized representatives of the physicians and of the insur- ance authority for the entire country. Various methods of remunerating the physician have been adopted. While doctors generally urge payment by the visit, the system of "capitation," or a lump-sum payment for each person for the year, has been adopted in Great Britain and is pre- ferred by the physicians. In some other countries a com- bination of the two principles is effected by setting aside for the payment of medical services a definite sum for each insured person for the year and distributing this amount among the doctors upon the basis of the actual services rendered by each. In the organization of the carriers of insurance each coun- try has adapted itself to existing conditions. Germany found already in existence mutual aid funds and an effective system of compulsory insurance among miners. The former it al- lowed to serve as a substitute for compulsory insurance, providing- that employers might be exempted from contrib- uting for workers so insured; it also permitted establish- ment funds, under certain conditions, to carry the insurance. The system was, however, based in the main on self-governing local mutuals, organized by the law, which it has been the policy to encourage, so that they are now overwhelmingly predominant. Great Britain built its insurance system around the volun- tary friendly societies, utilizing their organization and per- mitting them to establish separate sections for national in- surance. Accordingly many societies have both a "private" and a "state" section. In contrast to the German method, the insured are not grouped according to trade or locality, but are given unrestricted choice of society. As a result of this freedom, the members of some of the large societies are distributed throughout the kingdom and through various in- dustries. Segregation by locality, and in some large cities by trade, which is not possible under the British system, has many practical and technical advantages, such as more pre- 422 PRINCIPLES OF LABOR LEGISLATION cise distribution of the risk and greater ease of adminis- tration. The methods of establishing security of payments in the two countries are quite different. In Germany the dues are calculated so as to cover the current expenditure on benefits and to accumulate a small reserve fund. It is, however, a recognized fact that sickness increases with age and that any voluntary fund organized on this basis would be compelled to increase its dues as the members advanced in years in order to cover the increasing costs unless the fund is able to attract a sufficient number of young lives. These younger members, paying the same dues as the older members, do not claim the same amount of sick benefit, hence from their contributions a surplus would accrue which could be devoted to making up the deficit caused by the older members. This system is practicable in Germany, since each local or trade society is practically assured of a due proportion of young lives which will pay for the older members. In Great Britain the contributions are calculated so that the surplus accumulated during the early life of each worker may be applied for his own benefit in later years. That is. con- tributions are not calculated on the simple basis of covering expenditures, but upon the basis of covering the estimated liability for the average person throughout life. This involves the accumulation of an "actuarial reserve" for each insured person. This method of financing has not been satisfactory in Great Britain, where it has been combined with a flat rate of premium and free choice of society. (j) Maternity Insurance Insurance provision for the needs of mothers at the time of childbirth is found in many countries. By 1920 such pro- vision was made through compulsory health insurance in twelve countries, through compulsory maternity insurance in one, through state aided voluntary sickness insurance in five, and through state grants in three. 1 1 For summaries of some of these laws and their operation, see United States Children's Bureau, Publication No. 57, "Maternity Benefit Sys- tems in Certain Foreign Countries," Henry J. Harris, 1919. SOCIAL INSURANCE 423 In France, Sweden, Denmark, Belgium, and Switzerland, government grants are made to sickness societies which vol- untarily provide maternity benefits. In France, special socie- ties have been organized for the purpose. In Sweden and Switzerland the government subsidizes approved sickness in- surance carriers and gives an especially liberal grant toward meeting the expenditure for maternity care, thus trying to encourage provision for this need. In Switzerland the federal legislation for voluntary insurance may be made compulsory by the individual communes and cantons. In Belgium and Denmark government subsidies are given sick funds which provide maternity care among their benefits. The twelve countries which in 1920 provided maternity benefits as part of compulsory health insurance legislation include Great Britain, Germany, Luxemburg, Holland, Rou- mania, Servia, Austria, Hungary, Czechoslovakia, Poland (by decree), Russia, and Norway. The benefits thus provided are available for insured women. In some countries, as in Great Britain, Holland, and Roumania, a money benefit only is provided, but more frequently both cash and medical care are furnished. 1 The cash maternity benefit is usually equal to the regular cash sick benefit, varying from 50 per cent, to the full amount of the basic wage. The period during which the cash benefit is paid varies from four weeks up to the entire period of incapacity for work. 2 Most frequently, however, benefit is paid during the six weeks following confinement, 3 with varying periods before confinement. The legislation of a few countries 4 provides an additional allowance a nursing benefit during a limited period, provided the mother nurses her child. Health insurance legislation in some countries 5 also makes provision for the uninsured wife of an insured man, usually for medical care at confinement. In addition to the medical qare of uninsured women, Norwegian legislation also provides 1 Austria, Hungary, Czechoslovakia, Servia, Poland, Luxemburg, and Norway. 2 Holland. 3 Germany, Austria, Roumania, Czechoslovakia, Poland, Norway, Russia, and Servia. 4 Austria, Roumania, Czechoslovakia, Poland, and Germany. 6 Great Britain, Hungary, Norway, Servia, and Germany. 4 2 4 PRINCIPLES OF LABOR LEGISLATION them with a modest cash benefit. Great Britain has departed from the continental developments and provides a cash benefit of $15 for an insured married woman (regardless of whether or not her husband is insured), $7.50 for the uninsured wife of an insured man, and $7.50 for an insured unmarried mother. An insured woman unable to work during pregnancy is en- titled to her usual cash sickness benefit. The war with its emphasis upon the importance of adequate care for mothers and young children has stimulated even more extended provisions. In Germany, during the conflict, ma- ternity provisions voluntarily undertaken by the funds in addition to the required six weeks' maternity benefit were curtailed, and an extensive system of maternity grants financed partly by the state but administered by the insurance funds was substituted. In September, 1919, Germany placed the extended provision for maternity care upon a permanent legal basis, decreeing that the war maternity benefits should cease with the resumption of peace. This legislation pro- vides for a lump sum of $11.90 to meet the expenses of con- finement; for $5.95 to meet expenses for the treatment of pregnancy complications, if needed; for a maternity benefit, equal to the sick benefit, payable for ten weeks of which at least six shall follow confinement; and for a nursing benefit, equal to one-half the sickness allowance, payable for twelve weeks after confinement if the mother nurses her child. These benefits are allowed both to insured women, and to uninsured wives and daughters of insured men, living in the same house- hold with them. Employers of domestic servants or farm laborers who are not insured are required to provide the same benefits for women employees and the wives and daugh- ters of their men employees. In addition, women of small means, who are not insured, receive maternity benefits from the treasury. In Great Britain the emphasis was laid upon more extended provision for consultation centers where mothers might go for advice and treatment. The government, through the local government board in 1916, offered to bear half the expense of such centers and other specified free medical assistance to mothers afforded by local organizations, public or private. Italy, in 1910, established a system of compulsory maternity SOCIAL INSURANCE 425 insurance applicable to women industrial workers of from fifteen to fifty years of age. Women employees and their employers contribute equally, while the state contributes one-fourth of the confinement benefit of $7.72. Direct state aid was in 1920 in existence in Australia, Den- mark, and France. In Australia legislation of 1912 provided for a payment from government funds of $24.30 to every woman upon the birth of a living child. Danish legislation of 1913 provided that any public relief given lying-in women during the four weeks following confinement, when their industrial employment is prohibited, shall not be considered poor relief. A French act of 1913 provided a grant from public funds to women employed by others for wages. This grant is given upon condition that the mother give up her usual gainful employment, that she take all practicable rest, and that she follow health instructions given her. An addi- tional allowance is made if the mother nurses her child. In 1918 this act was extended to include all women with insuffi- cient means. Although in this country several states, beginning with Massachusetts in 1912, prohibit the industrial employment of women for a period of several weeks immediately before and after childbirth, 1 no American state had before 1920 recognized the justice and necessity of furnishing maternity benefits during such periods of enforced idleness. The Inter- national Labor Conference of 1919, held in Washington, adopted a draft convention providing that during the six weeks' rest which a wage-earning woman may take preceding confinement and the similar rest which she is to be required to take following confinement, she shall be paid "benefits suf- ficient for the full and healthy maintenance of herself and her child provided either out of public funds or by means of in- surance, the exact amount of which shall be determined by the competent authority in each country, and as an additional benefit shall be entitled to free attendance by a doctor or certified midwife." If insurance is to accomplish its object of conserving the health and life of a nation, it is desirable that maternity benefits be extended as widely as possible. 1 See "Childbirth Protection," p. 348. 426 PRINCIPLES OF LABOR LEGISLATION (4) Need in the United States By 1920 universal workmen's health insurance was eagerly discussed in America, a bill having been passed by the New York Senate in April, 1919. Nine states, 1 through official in- vestigating commissions, had reported, thus making available to the public a wealth of data concerning the need for this type of social insurance. Official investigations have disclosed the fact that in the course of a year approximately 20 per cent, of the workers are sick, each case lasting on the average about thirty-five days. Other investigations have shown that at any one time 2.3 per cent, of the workers fifteen years of age and over are so sick as to be unable to work, and that sickness when distributed over a group means an average of about 8.4 days of sickness a year for each person. Although the hazard has been measured with a fair degree of accuracy, existing forms of insurance have so far been unable to meet the situa- tion. Official investigations have shown that only about one- third of the workers carry health insurance, and that what they do carry is usually for small amounts and often unac- companied by any medical benefit. Low-paid workers, among whom there is most sickness, carry the least insurance. Sav- ings from wages, which usually have not kept pace with the great increases in the cost of living, are too frequently inade- quate to meet the strain of a period of sickness. It is not surprising, therefore, that sickness is a factor in more cases of dependency than any other one cause, being involved in at least one-third of the cases which seek relief from voluntary charity. Although the burden is borne by the workers and those philanthropically inclined, there is accumulating evidence that industry is also a factor in causing sickness and that it should justly bear a portion of the expense. Investigation has also shown that the medical needs of sick wage-earners are inade- quately met, partly on account of inability to pay the cus- tomary fees. As a result, many go without proper care, or obtain medical charity where it is available. The recent 1 California, Massachusetts, New Jersey, Connecticut, Wisconsin, Ohio, Illinois, New York, and Pennsylvania. SOCIAL INSURANCE 427 advances in medicine resulting in increased specialization have increased the expensiveness of medical service and the need for its organization. Among those familiar with the social side of medicine there is a keen realization that a reorganiza- tion of medical practice and new methods of financing it are urgently needed. After a careful survey, the California Social Insurance Com- mission, which was the first to report, concluded that, "Health insurance to be effective must be made compulsory upon the individual worker." l The Pennsylvania Health Insurance Commission stated two years later, "Your commission believes that the best way to close this sickness highroad to poverty and dependency is to make available immediate and adequate medical care for sickness cases and to prevent the financial burden of sickness from falling entirely on the person least able to bear it the sick worker. In some way the burden should be distributed among all wage workers, or shared by indus- try and by the community as a whole." 2 The New York State Federation of Labor, in recommending compulsory health insurance, pointed put that only through this method could a portion of the cost be passed on to industry. On the medical side, health insurance distributes the cost of medical care between industry and the workers and enables the worker to pay his share of the cost in advance during periods of good health. It will also facilitate the organization of group prac- tice which is required by the recent advances in medicine. The bills which have been introduced in the various state legislatures follow in the main the standards for health in- surance formulated by the American Association for Labor Legislation in 19 i/j.. 3 They usually provide for a cash sickness benefit during twenty-six weeks, medical care, maternity bene- fits, and a funeral benefit. The cost is divided equally be- tween worker and employer, while the state bears the cost of central supervision. Thp insurance is to be carried by mutual democratically managed associations of workers and employ- ers, called "funds," which the state will supervise. In addition to the relief value of such measures they contain 1 Report of the Social Insurance Commission of California, 1917, p. 121. 2 Report of the Health Insurance Commission of Pennsylvania, 1919, p. 9. 3 American Labor Legislation Revieu>, December, 1914, pp. 595-596. 428 PRINCIPLES OF LABOR LEGISLATION important possibilities for the prevention or illness. After a century of rapid industrial growth and increasing urban popu- lation we are just beginning to value as a social factor the sanitation which drains cities, provides pure water and pure milk, and quarantines infectious diseases. We have too long failed to realize that the ill health of the individual, even though he may not be suffering from a contagious disease, is a matter of public concern. Medical care of adults is no less important for a state which values the lives of its citizens than is the medical examination of school children which we have already adopted in the larger cities. More general medical consultation will reveal unsuspected tendencies which, if allowed to develop, will have as pernicious effects as the adenoids we are careful to remove from ^chool children. Here, as in England, there are many wage-earners who are unable to afford a doctor's fee. Nor is the dispensary service given in the large cities sufficient to meet the need. A socialized medical service, whereby all who require the ser- vices of a physician may have access to the necessary treat- ment, has been found very effective in some countries. Great Britain's health insurance act has revealed a mass of human suffering, especially among women, which hitherto had re- ceived no medical attention. Because of the increased use of doctors, a far larger number of persons have been discovered who need operations and hospital care persons whose ills previously would have gone without treatment until the suf- fering had become acute and the chances of recovery had been diminished. The need revealed has been so great that there is strong sentiment in favor of extending medical care under the insurance act to the dependents of the insured. Socialized medical service has resulted in prophylactic treat- ment for the individual and in the conservation of national vitality. Great Britain's health insurance act has been an incentive for undertaking a national campaign against tuberculosis. By means of a sanatorium benefit for insured workers suffering from this disease, more adequate treatment is being provided. Furthermore, the necessity of spending money on prevent- able disease is in itself a stimulus to prevention. Various Eng- SOCIAL INSURANCE 429 lish bodies have been aroused by this factor to a keen interest in the relation between tuberculosis and housing. The finan- cial pressure on "approved societies" is a direct inducement to demand thorough inspection of dwellings and workplaces, especially since the delinquent authority can be made to pay the cost of the sickness produced by the poor sanitary condi- tions which it has allowed to exist. In its report on public health, after the war, the British Ministry of Reconstruction stated of the workings of the insurance act: "The attention thus drawn to these [sickness] conditions not only stimulated provision for the direct alleviation of existing suffering, but also encouraged the rediscovery, as it were, following the course of evolution of medical science, of a humaner principle of prevention, as the means by which the sufferings of the individual could best be relieved or averted. In another general respect the insurance act entirely altered the previous position. It created a new body of organized public opinion, with a financial interest in the improvement of the national health." l It is also possible, as the American plans provide, to levy a higher premium upon the industry or particular establishment in which the sickness rate is higher than normal. This is a means tending to persuade the employer of the economy of factory sanitation which will improve the health of the worker and thereby reduce his insurance premium. It is the same inducement of low insurance premiums for workmen's com- pensation which is partially responsible for the "Safety first" movement and the installation of safety appliances. With- out a compulsory health insurance system, the economy of health preservation cannot be made an effective lever for reform. 3. OLD AGE AND INVALIDITY INSURANCE The rapid development of industry has, among its other results, placed emphasis on the individual's physical vigor and wage-earning capacity. It has deprived old age of the esteem bestowed upon it under more primitive patriarchal conditions, 1 Great Britain, Ministry of Reconstruction, Reconstruction Problems, 23, "Public Health, I A Survey," 1919, pp. 6-7. 43 o PRINCIPLES OF LABOR LEGISLATION and after a life of productive toil it relegates to the back- ground the aged or incapacitated man as a useless, uneconomic factor. Failing health, inability to find employment, lack of means, often absence of friends willing or able to help him such is the prospect which confronts, in the great majority of cases, the aged worker. (i) Unassisted Old Age Insurance In response to the gravity of this situation three main measures of relief have been developed: charity, saving, and insurance. Charity has been known since ancient times, and no doubt has relieved a deal of destitution. But the modern opinion is that charity, both private and public, is insufficient in amount and unsatisfactory in quality; that it exercises a degrading effect upon the recipient and is repugnant to the self-respecting person. The serious difficulties in the way of saving are also well known. The low standard of wages sel- dom, if ever, allows any surplus; most often the immediate demands outweigh the arguments in favor of saving. Be- sides, the very remoteness of old age and the uncertainty of attaining it discourage many people from making preparation for the future at the expense of the present. In this problem, as in that of provision for illness, the collective process of insurance is considered much more satisfactory than the in- dividualistic method of savings. Professor Seager has said that "for every wage-earner to attempt to save enough to provide for his old age is needlessly costly. The intelligent course for him is to combine with other wage-earners to ac- cumulate a common fund out of which old age annuities may be paid to those who live long enough to need them." 1 The development of old age and invalidity insurance is similar to that of health insurance. The first stage in the movement was marked by optional unassisted insurance, which is still furnished by some fraternal societies, trade unions, establishment funds, and insurance companies. How- ever, the number of fraternal societies and trade unions, either here or abroad, which undertake the complicated busi- 1 Henry R. Seager, Social Insurance, 1910, pp. 118, 119. SOCIAL INSURANCE 431 ness of old age and invalidity insurance is small. In many states of this country fraternal societies are prohibited from dealing in it. Only forty-two out of 182 general or national fraternal benefit societies in the United States promise old age benefits, and these usually do not begin until the age of seventy has been reached. 1 As to American trade unions, out of about 120 existing national organizations four are known to pay a superannuation benefit. These are the International Typographical Union, the Granite Cutters' International As- sociation, the Amalgamated Society of Carpenters and Joiners, and the Amalgamated Society of Engineers, the last two being branches of English unions. In a few other unions the introduction of this form of insurance is being considered, and in some old age benefits are paid by individual locals. Nine- teen unions, 2 the majority of which consist of transportation workers, pay a permanent disability benefit. Business con- cerns furnishing old age insurance for their employees are also rare, especially in this country, as are those granting straight old age pensions. Insurance companies do a considerable old age annuity business in Europe, chiefly among the middle class; in the United States, on the contrary, commercial old age insurance for wage-earners is little known. (2) Assisted State Plans Obviously, voluntary unassisted old age insurance reaches only a small part of the wage-earners. As a consequence, as in the other branches of social insurance, it came to be con- sidered the duty of the state to assist its aged citizens, and the principle of state insurance, sometimes aided by subventions, was devised. This form of voluntary old age insurance is known in France, Belgium, and England, and in America in the states of Massa- chusetts and Wisconsin, and in Canada. France and Belgium grant subventions in the form of a substantial rate of interest, and to certain classes of insured direct subsidies are given. 1 Lee W. Squier, Old Age Dependency in the United States, 1912, p. 67. 2 United States Commissioner of Labor, Twenty-third Annual Report, "Workmen's Insurance and Benefit Funds in the United States," 1908, P- 31- 432 PRINCIPLES OF LABOR LEGISLATION The state also furnishes the administrative machinery and running expenses. The Massachusetts plan is a system of voluntary old age insurance through the savings banks under state supervision, while the Wisconsin system provides for the issuance of annuities by the state life fund under the supervision of the insurance commissioner. But even state assistance and supervision failed to secure for old age and invalidity insurance any large measure of popular acceptance. Experts commonly agree that even gen- erous subsidies do not seem to attract more than a small part of the wage-earners; that in a large number of cases the payments are either made irregularly or are after a while sus- pended, and that the benefits paid are very small. In view of the insufficiency of state control and subsidy, two other very significant elements of social insurance were added, namely, compulsion and the requirement of the em- ployer's contribution. (j) Compulsory Systems Compulsory old age and invalidity insurance has been slower' in developing than health insurance, but recently it has made rapid advances. By 1920 it was established in the eleven countries of Germany, Luxemburg, France, Roumania, Sweden, Holland, Austria, Spain, Italy, Portugal, and Czecho- slovakia, and in the United States for all federal government employees in the classified civil service. In this branch of social insurance, as in the two previously discussed, Ger- many took the lead, enacting its first law in 1889. All German wage-earners of the designated ages and occu- pational groups, regardless of size of income, are com- pelled to insure. Salaried workers in specified occupations are included, with the exception of those earning more than $476 a year, who may, in common with other classes, take out voluntary insurance. Contributions are of five grades, ranging from 4 cents to 12 cents a week accord- ing to the worker's income, and are paid in equal parts by employer and employee. The pensions also are divided ive groups, corresponding to the five grades of con- tributions. The state's contribution consists in the pay- SOCIAL INSURANCE 433 ment of a fixed sum annually to each person in receipt of a pension. A necessary condition for receiving a pension is the payment of contributions for not less than 1,200 weeks. To meet the need of persons who are already of advanced age, transitory provisions are introduced, reducing the required 1,200 weeks' payments by forty for each year of age over thirty-five when the law went into effect. The age qualifica- tion for receiving an old age pension, first set at seventy years, is now reduced to sixty-five. Provisions for old age are subsidiary, in the German law, to those for invalidity insurance. An insured person of any age, who on account of diminished strength is unable to earn one-third of the wages usually paid to normal workers in his occupation, is entitled to an invalidity pension. In 1908, 894,000 persons were in receipt of invalidity pensions as against 102,000 who were drawing old age pensions, or nearly nine times as many. 1 The invalidity benefits are larger than the old age pensions. The law also provides a benefit to an invalided wife or husband upon the death of the insured wage- earner and a benefit to the fatherless orphan of an insured person. - For the purposes of this insurance the empire is divided into large districts for each of which is created an insurance institute, under the direct supervision of the imperial insur- ance office. Each institute is managed by a board of direct- ors, in part appointed by a public authority, in part chosen equally from employers and employees by the committee, itself an elective body composed of equal numbers of em- ployers and employees, with supervisory duties. While far more bureaucratic than the sickness funds, the administration of the institutes is still largely supervised by the persons affected as contributors and beneficiaries. Two unique points in the German old age invalidity insur- ance system are sickness pensions and sanatorium treatment. Sickness benefits, equivalent in amount to invalidity benefits, are paid to persons, not permanently incapacitated, who have exhausted their claims to sick pay and are still unable to work. However, it is entirely apart from cash payments, Rubinow, Social Insurance, p. 359. 434 PRINCIPLES OF LABOR LEGISLATION and in the realm of prevention, that the most significant fea- ture of the whole German social insurance plan is to be found. Under the local pension boards is maintained a country-wide network of sanatoria, rest homes, and health resorts. Persons who have drawn all their sick benefits but who are still unable to work are entitled to maintenance in these institutions, and the timely and efficient care there furnished to the patients has proven a powerful factor in the prevention of invalidity. In addition to their legislation covering wage-earners, which has already been described, Austria, Germany, and Czecho- slovakia have enacted laws providing compulsory old age in- surance for salaried employees in certain income groups. The benefits include invalidity and old age pensions, a pension to the widow, and a benefit to minor children under specified ages. Austrian and Czechoslovakian legislation places two- thirds of the cost upon the employer and one-third upon the worker for the lower income groups, and divides the cost equally between employer and employee in the higher paid classes. In Germany the cost is divided equally between worker and employer. Swedish legislation is applicable to every person sixteen years of age and over, regardless of income or employment. The cost is shared by the worker and the state. A principle similar to the Swedish has been followed in the compulsory old age insurance adopted by the Swiss canton of Glarus. The American law establishing compulsory contributory old age and invalidity insurance for the federal government's employees in the classified civil service 1 was enacted in 1920 after years of agitation. The age of retirement is fixed at sixty-two for railway mail employees, sixty-five for mechanics, letter carriers, and post office clerks, and seventy for all others. Any employee able and willing to carry on his duties efficiently may, in the discretion of the head of his depart- ment, and on approval by the Civil Service Commission, be continued in his position beyond the retirement age for two periods of two years each, but no longer. On retirement an employee becomes eligible to a yearly pension ranging from $180 to $720, according to previous salary and length of ser- 1 Numbering, when the act was passed, about 300,000. SOCIAL INSURANCE 435 vice. No one who has not been employed by the government at least fifteen years is eligible to benefits under the law. In addition to the old age pension provisions, the act establishes the same benefits for those who, after fifteen years' service but before the retiring age, become totally disabled because of disease or injury "not due to vicious habits, intemperance, or wilful misconduct." Recipients of disability benefits, unless their incapacity is known to be permanent, are to be exam- ined annually by a United States medical officer or a desig- nated physician to determine whether they are still eligible to the benefit. The employees' contribution toward the bene- fits is made through a deduction of 2^ per cent, from all salaries. Employees' contributions, it is estimated, will cover about one-third of the expense of the law. The remaining two-thirds, the government's contribution, will be paid from general taxation. Persons who leave the government service or die before reaching the age or length of service necessary for retirement are entitled to receive all moneys paid in by them, with interest compounded at 4 per cent, annually. Administration of the act is mainly lodged with the commis- sioner of pensions under the Secretary of the Interior. (4) Straight Pensions Another much discussed method of meeting the problem of old age poverty is that of "straight," or non-contributory, pensions. Such pensions, their opponents charge, tend to keep wages at a low level, destroy the habit of thrift, and have an injurious effect on family solidarity. As for the last argument, it is difficult to see how the parents' depend- ence can add to the filial affection of the struggling wage- earner. The habit of thrift, also, can hardly be destroyed by the remote and uncertain possibility of attaining old age with a pension which is hardly sufficient to keep body and soul together. With regard to the possible effect on wages, the persons in receipt of old age pensions are a very unim- portant factor in the labor market, and as to the workingmen who have not yet reached pensionable years it is doubtful whether the prospect of a very meager assistance in their old age would alone be sufficient to make them accept lower 43 6 PRINCIPLES OF LABOR LEGISLATION wages. Some champions of social insurance also object to straight pensions on the apparently more valid ground that the straight grant resembles charity and is, therefore, less desirable than a system by which the worker is asked to con- tribute. Straight old age pensions are granted sometimes to all persons meeting certain personal requirements, and sometimes for the performance of a definite period of service. Seven countries Denmark, New Zealand, Belgium (temporarily), France, Australia, Great Britain, and Uruguay and Alaska and Arizona 1 in the United States, had by 1920 enacted legis- lation providing such aid to all persons possessing certain moral, economic, or civil qualifications. Under most of these laws a definite period both of residence and of citizenship is prerequisite. New Zealand demands twenty-five years', Aus- tralia twenty, Great Britain twelve, Alaska ten, and Arizona five years' residence, while in Belgium one year is sufficient. In Australia the applicant must have been a citizen three years, in Arizona five years, and in Great Britain twenty years. All but the French and the two American acts embody a number of moral qualifications. Family desertion, neglect of children under fourteen years, drunkenness, and a prison sentence are some of the grounds which disqualify an appli- cant either permanently or temporarily from receiving an old age pension. The requirements as to the economic status of the pensioner also vary widely. In Australia an income of $253 a year debars one from receiving an old age pension; much less liberal are the provisions in the other countries. In France an income of $92.64 is the highest allowed. Similar regulations exist with regard to the amount of property owned. The grants are far from generous. In Great Britain the maximum pension, first set at $1.25 a week, had been raised by 1920 to $2.50 a week, and in Alaska the maximum is set at $12.50 a month. In other countries no definite level of pensions is established by law, and the local authorities are permitted to exercise their judgment in the individual cases. 1 This act was shortly after passage held unconstitutional by the supe- rior court, and in January, 1920, was on appeal before the supreme court of the state. SOCIAL INSURANCE 437 Straight pensions for service are granted both by govern- ments and by private employers. In America such pensions are provided by state and municipal governments for certain classes of employees, such as policemen, firemen, and teachers. The federal government has also established pensions in the army and navy, with particular generosity toward Civil War veterans. In several European countries, furthermore, work- ers in the government owned industries are granted pensions, as for example, in the tobacco works of Italy and France. Finally, pensions are granted to their employees by some private concerns. Establishment pension funds exist in prac- tically every cotintry of industrial prominence, but in the United States their number is relatively small. The trans- portation industry can boast of the largest number, there being at least eighteen steam railroads with such pension sys- tems, as well as several electric street railways and a few steamship lines. The number of manufacturing establish- ments granting pensions was, until recent years, smaller. The social value of these provisions is almost negligible, first, because of their small number, and second because of their defects, some of which are arbitrariness on the part of the employer, lack of certainty as to the receipt of the pension, and their injurious effect on the independence and mobility of labor. (5) The Problem in the United States Clearly the total results accomplished by all these organiza- tions are of little or no consequence. "Strange as it may seem," declares a leading American authority, "the United States is the only great industrial nation in the civilized world that has not already attempted a practical and permanent solution of this problem of old age and dependency." l This neglect of the problem of old age poverty cannot, however, be explained by the absence of conditions calling for attention. On the basis of an investigation of old age poverty made in Massachusetts by a special commission on old age pensions of that state, it is estimated that "approximately 1,250,000 of the people of the United States above sixty-five years of 1 Squier, Old Age Dependency in the United States, p. 325. 43 8 PRINCIPLES OP LABOR LEGISLATION age are dependent upon public and private charity, to the amount of about $250,000,000 annually. Thus far one person in eighteen of our wage-earners reaches the age of sixty-five in penury; and the indications are that the proportion of in- digent old is increasing." l The awakening interest in old age provision had resulted by 1920 in the appointment of official investigating commissions in some half a dozen states. The Pennsylvania commission reported that 43 per cent, of the population aged fifty and over had no means of support other than their own earnings, and that only 38 per cent, of the general aged population possessed personal property. Declining earning power coupled with the absence of resources is almost certain to compel many to ask for charity. Both the Ohio and Pennsylvania investi- gations showed that old age was a native problem and not one imported by immigrants. Existing pension systems are an insignificant factor in meeting the situation ; in Ohio the com- mission estimated that, exclusive of federal and state pension- ers, only 3,000 persons were pensioned out of an estimated population of 304,000 persons sixty-five years of age and over. In Ohio relief afforded by private homes for the aged and by almshouses provided for a larger number. But this charity, both investigations showed, was insufficient, while the Ohio commission found it necessary to criticize severely the character of the care and treatment afforded by public almshouses. The Pennsylvania commission pointed out that the existing means can never be expected to meet the situation, and urged further study of the more comprehensive methods developed else- where. The Ohio commission recommended non-contributory old age pensions. 2 The failure of the United States to provide an organized policy for the protection of its citizens at the close of their life of productive work appears the more striking when we see that thirteen European countries, together with Australia and New Zealand, have enacted national measures, in the form either of insurance or of straight pensions, for the solu- tion of this problem. 1 Squier, Old Age Dependency in the United States, p. 324. * Report of tJie Pennsylvania Commission on Old Age Pensions, 1919; Ohio Health and Old Age Insurance Commission, Health, Health Insur- ance, Old Age Pensions, 1919. SOCIAL INSURANCE 439 4. WIDOWS' AND ORPHANS' INSURANCE Insurance for the protection of widows and orphans, or, as it is ordinarily called, life insurance, is furnished by prac- tically all fraternal societies, many trade unions, some estab- lishment funds, and by private life insurance companies. In some countries, such as Great Britain, France, Italy, Russia, and Canada, the government has undertaken the business of life insurance; in the United States we have state life in- surance in Wisconsin, and in Massachusetts there is a system of life insurance administered by savings banks under state supervision. (i) Voluntary Life Insurance Life insurance, sometimes for enormous amounts and paid for by annual or quarterly contributiens or premiums, is now a well-established method of providing for the future among the moderately well to do and the wealthy. But in order to bring the poorly paid wage-earner under the system, a special form of life insurance had to be devised, known as "industrial" or "prudential" insurance as opposed to the "ordinary" type. Under industrial insurance the policy amounts are much smaller, usually providing only for the burial of the insured, and to facilitate payment premiums are collected weekly or monthly, by a vast army of agents. This method of collection, however, results in the increase of ad- ministrative expenses and, consequently, in higher rates. Another cause of higher rates in industrial insurance is the higher death rate among wage-earners. Thus even in pur- chasing decent burial the wage-earner is obliged to pay a higher rate of insurance than does his more prosperous neighbor. State insurance, as well as insurance furnished by fraternal societies, trade unions, establishment funds, and mutual assessment societies, is less expensive but still outside of the reach of many working people. Moreover, because the in- surance is voluntary, the very families most in need of pro- tection are often left without it. These defects, as in the other branches of social insurance, have led to the introduction of the compulsory principle. 440 PRINCIPLES OF LABOR LEGISLATION (2) Compulsory Insurance Compulsory widows' and orphans' insurance, the newest branch of social insurance, had been adopted by 1920 through comprehensive legislation in France, Germany, Holland, and Italy. In addition, Austria, Germany, and Czechoslovakia had enacted corresponding provisions for salaried employees earning less than specified amounts. In France the compulsory old age insurance law of 1910 provides for benefits to widows and orphans of the insured. The total benefits vary from $29 to $58, according to the number of dependents, and are paid in monthly instalments of $9.65 until the entire amount has been paid. In the following year, 1911, the German law was passed. As in France, benefits are furnished to certain survivors of those carrying old age and invalidity insurance. The amount of the pension depends on the amount of invalidity pension to which the insured was entitled. The widow, but only if she is herself an invalid, receives 30 per cent, of the invalidity pension to which her husband was entitled. Only children under fifteen are eligible for pensions, the amount being 30 per cent, of the parent's pension for the first child and 1 5 per cent, for each of the others. In addition, the state annually pays the widow $11.90 for herself and $5.95 for each child. The cost is met by an increase of the premiums for old age and invalidity insurance. This increase varies for the five different wage-groups established for that type of insurance, and runs from i cent to nearly 3^ cents a week, equal shares of this amount being contributed by the employer and the employee. Under an earlier form of the law it was estimated that the average annual pension of a widow with three chil- dren is $37,* a sum which cannot be considered as substantial. An increase in the amount of benefits paid in this and in other branches of social insurance is urged as the next step in the development of the system. In a third country, Holland, the old age and invalidity in- surance law of 1913 allows benefits to the orphans of men or women who carried old age and invalidity insurance. These benefits depend on the amount of the parent's pension; they 1 Rubinow, Social Insurance, p. 434. SOCIAL INSURANCE 441 are paid to the orphans until of the age of thirteen and only when the father was already receiving a disability pension or if forty weekly contributions were credited to him. The same limitations hold true in the case of death of an insured widow. Italy also makes provision for monthly pensions to widows and orphans as part of the system of old age and invalidity insurance, dating from 1919. Austrian compulsory old age and invalidity insurance legis- lation of 1906, as amended in 1914, provides for salaried em- ployees in addition to old age and invalidity pensions, pensions to widows, to orphans of the insured, and to impecunious mothers supported by the insured. German and Chechoslo- vakian insurance for salaried employees also provides pensions to widows and orphans of the insured. (j) Mothers' Pensions A more popular method of dealing with the problem of widowhood and orphanhood is by means of mothers' or wid- ows' pensions, paid to certain classes of mothers with depen- dent children. These pensions, however, are straight grants by the government. Such systems exist in several European countries, in New Zealand, and in a number of American states. The movement in this country is particularly interesting. Here the pressing problem of widows' and orphans' poverty and helplessness has, instead of giving rise to social insurance measures, resulted in a sudden wave of legislation providing straight pensions, usually upon condition that the mother is found capable of providing a proper home for her child. Indeed, a leading argument in behalf of this legislation is that it is better to pay the mother for taking care of her child than to expend the same amount in financing institutions, in even the best of which the death rate is abnormally high. In the nine years 1911-1919 thirty-nine American states, and Alaska and Hawaii, enacted such laws. The surprising rapidity with which this provision has gained recognition in American legislatures is a significant indication both of the great need of public action and of the growing conception of the state as having a duty toward its citizens, two of the under- lying ideas of social insurance. 442 PRINCIPLES OF LABOR LEGISLATION 5. UNEMPLOYMENT INSURANCE Finally, the destitution due to unemployment, until recently considered a matter of purely individual concern, or at best as an occasion for charitable activity, is now beginning to be recognized as an evil which must be met by the coordinated forethought of society as a whole. The demoralization of individuals and communities by prolonged and widespread deprivation of income due to involuntary idleness, it is now rather generally agreed, should no longer be allowed to con- tinue unchecked. Among the results of the first official In- ternational Labor Conference in 1919 was the recommendation that each of the forty-one member countries establish "an effective system of unemployment insurance, either through a government system or through a system of government sub- ventions to associations whose rules provide for the payment of benefits to their unemployed members." (i) Voluntary Out-of-Work Benefits In warding off the financial hardships of unemployment, individual action and charity have been found just as inade- quate as they were in protecting against the financial hard- ships due to accident, ill health, or old age. Here again the collective method of insurance has demonstrated its su- periority. Unemployment insurance originated among labor organizations, and at first the cost of this insurance was borne by the workers themselves without any outside assistance. This form of unemployment insurance has achieved a con- siderable success in the important European countries. In the United States, on the contrary, only a few unions are known to pay out-of-work benefits. Of the in national organizations affiliated with the American Federation of Labor in 1920 the Cigar Makers' Union alone was known to have a national system of unemployment insurance. Two other im- portant unions which pay out-of-work benefits, the Amalga- mated Society of Carpenters and the Amalgamated Society of Engineers, are both branches of British organizations. In a number of national unions only certain locals are paying such benefits; several unions pay a traveling benefit; others limit SOCIAL INSURANCE 443 themselves to excusing their unemployed members from the payment of dues. In addition to trade unions, fraternal societies in some countries pay a regular out-of-work benefit. In some places, also, there are instances of still another way of meeting a part of the unemployment insurance problem, namely, through funds established by some employers for their own employees. (2) The Ghent System Unassisted trade union unemployment insurance, however, with the cost borne by the workers alone, is a heavy burden on them and only a comparatively small part of the workers are able or willing to insure. In order to encourage insurance, a plan was devised by which government, most often munici- pal, subsidies are granted to trade unions furnishing unem- ployment insurance. This is the principle of the famous Ghent system, which was first introduced in the city of Ghent in Belgium in 1901. The Ghent idea was rapidly adopted, with some modifications, not only in a number of cities in Belgium; but also in Great Britain, Germany, France, Switzer- land, Italy, Holland, Denmark, Norway, and Finland. The subsidies vary in the different countries from 33^/3 per cent, to 100 per cent, of the benefits paid by the unions. In Great Britain the trade unions which were outside of the compulsory unemployment insurance law of 1911 received a state subsidy of not over one-sixth of the total amoun^of the out-of-work benefits paid. To meet the exceptional/unemployment in the early days of the war, Great Britain' temporarily extended and increased the subsidy to unions paying unemployment benefits. The system of government subsidized unemployment insur- ance has undoubtedly stimulated provision against unemploy- ment. 1 On the other hand, it is generally recognized that the advantages of optional subsidized insurance are not far- reaching enough to offset its limitations, the most important of which is its failure to attract a sufficiently large number of workers. The lesson taught by the other branches of social 1 See I. G. Gibbon, Unemployment Insurance, pp. 104, 105. 444 PRINCIPLES OF LABOR LEGISLATION insurance points to compulsory insurance as the solution of the problem. (j) Compulsory Unemployment Insurance Compulsory unemployment insurance was first introduced in the city of St. Gall, Switzerland, in 1894. After a two years' trial the system, owing to defective administration, was ad- judged a failure and was discontinued. The only countries where compulsory unemployment insurance was in force in 1920 were Great Britain, where it went into operation on July 15, 1912, and Italy, where it went into effect on January i, 1920. At the beginning of 1920 the British unemployment insur- ance law was undergoing revision which would raise its benefits and extend them to practically the entire wage-earning popu- lation. In its original form the act applied to seven groups of trades, but the administrative authorities were permitted to extend the range of the system. The selected trades were (i) building, (2) construction of works, (3) ship-building, (4) mechanical engineering, (5) iron-founding, (6) construc- tion of vehicles, and (7) saw-milling, and they were chosen because in them the extent of unemployment was greatest and most accurately known. About 2,500,000 workmen were included, out of 15,000,000 in the country, or 16 2/3 per cent. An amending act passed in 1916, in anticipation of the cessa- tion of war, extended the insurance temporarily to include about 1,000,000 workers engaged in munitions manufacture. The employer and employee contributed equal amounts of 5 cents each week; to this the government added 31/3 cents, which was one-third of the combined contribution of employer and employee. This premium entitled the worker in case of unemployment to the sum of $1.75 a week for not more than fifteen weeks in any one year. No benefit was paid for the first week of unemployment, and the worker had to be insured five weeks for every week of benefit he claimed. The limita- tion to fifteen weeks a year did not in practice work any serious hardship. In a study of 130,000 cases of unemploy- ment it was found that only 5 per cent, of the recorded unem- ployment among union men and only 1.2 per cent, among SOCIAL INSURANCE 445 non-union men was left without benefit because of this restriction. 1 To safeguard the workers' interests an unemployed man is not compelled to take work in a place where a trade dispute is on, or at wages below those he usually received or less than those current in the community. Anothet clause with a similar purpose provides that any insured workman over sixty years of age, who has been insured for ten years and who has paid 500 contributions, is entitled to a refund of his total payments, less his' total benefits, with compound in- terest at 2]/2 per cent. As a protection to the employer, a worker is refused benefit if he strikes, quits without due cause, or is discharged for bad conduct or inability to do the work. Furthermore, an incen- tive to regularize production, to avoid large turn-overs of labor, and thus to prevent unemployment, is held out to the employer in the clause entitling him to a refund of one-third of his own contributions for each worker retained in his em- ploy not less than forty-five weeks in a year. This amounts at present to not less than 75 cents a year for each employee so retained, and the principle is, of course, capable of ex- tension. The administrative machinery of the act is simple. The employee must secure an unemployment insurance book, which on taking employment is deposited with the employer. The latter must paste in the book on pay day the stamps representing his own and the employee's contribution, de- ducting the worker's portion from his wages. The weekly payments are transmitted through the post office, which sells the stamps, to the unemployment insurance fund, which, in spite of the smallness of the individual contributions, totals about $12, 500,000 a year for the 2 , 500,000 insured workers. If the insured worker loses his place, he receives from his em- ployer his insurance book, which he must then deposit in the nearest labor exchange or insurance office, one of which is within five miles of every considerable group of workers in the kingdom. He is thus automatically registered as looking 1 Great Britain, Board of Trade, Report oj Proceedings under Part II of the National Insurance Act, 1911, p, 13, 44 6 PRINCIPLES OF LABOR LEGISLATION for work, and so an abuse of the system by the "work-shy" man is avoided. In the year ending January 17, 1914, the sum of $2,488,625 was paid out by this system in unemploy- ment benefits. The signing of the armistice in November, 1918, and the prospect of widespread unemployment not only among de- mobilized soldiers and sailors and munition workers, but also in the trades supplying raw materials, led the British govern- ment to provide temporarily a system of so-called non-con- tributory unemployment insurance or "out-of-work dona- tions." Demobilized soldiers and sailors an4 unemployed civilian workers were declared eligible for a limited amount of benefit at the rate of $7.07 a week for men and $6.01 a week for women. Benefit was paid only to those who fulfilled the conditions of involuntary unemployment as established by the 1911 unemployment insurance act, and the same machinery of courts of referees and umpires was utilized to decide dis- puted claims for benefit. In November, 1919, the donations were discontinued and the following month the government introduced into Parliament its bill for a more comprehensive system of contributory unemployment insurance with higher benefits than those of the original act. Italy, in 1919, promulgated a decree for compulsory unem- ployment insurance which embraces those between sixteen and sixty-five years of age who are employed by others for money, and non-manual workers earning less than $67.55 a month in private firms. Persons rendering domestic service and those permanently employed by public authorities are excluded. The contribution of workers and employers and the amount of weekly benefit are graded with reference to the earnings of the insured. Benefit is payable only to those who have made at least twenty-four fortnightly contributions in two years. The duration of benefit is dependent upon the number of paid up contributions, those who have made thirty- six or more payments being entitled to benefit during 120 days. As in Great Britain, applicants for benefit must regis- ter at the employment exchange, and refusal to accept suit- able employment cancels the right to benefit. Special pro- visions were made for men demobilized when the decree came into force and for the families of men still with the colors. SOCIAL INSURANCE 447 In America, as well as in Europe, the importance of com- pulsory unemployment insurance is slowly gaining recogni- tion. The oft-recurring periods of general industrial de- pression and the prevalence of unemployment in the numer- ous seasonal trades are emphasizing the need for organized social action. In the winter of 1914-1915, particularly, the alarming extent of unemployment called forth general and deep interest, and among the methods most often urged for dealing with this evil was state supervised insurance. Dur- ing the same winter unemployment insurance bills were drafted for introduction in several states. These bills provided for compulsory, contributory insurance, jointly administered by employers and employees under public supervision, and with subsidies to organizations voluntarily entering the system. Ten weeks' benefit was tentatively proposed, with the proviso that the amount should be as large as possible. Refunds to employers who ran their plants steadily, and to workmen who were rarely out of employment, and corresponding penal- ties for casual labor, were included for the purpose of stimu- lating regularization of industry. To obviate unnecessary claims, close dependence upon an efficient system of public employment exchanges was insisted upon. Insurance provides a dignified method of financial assist- ance to unemployed wage-earners, the majority of whom would be forced either to seek charity, with all its objection- able consequences, or to suffer privation. The out-of-work benefit, although amounting to but a fraction of the regular wage, is still sufficient to ward off for a time complete destitu- tion; it thus contributes materially toward the preservation of the workers' character and physique during times of un- employment, and prevents their falling into the ranks of the unemployable where they would constitute a much more difficult problem. Of significance, also, is the pressure of compulsory insurance to prevent unemployment. Workmen's compensation laws have stimulated the development of the "Safety first" move- ment. The activity of the German sickness insurance funds affords demonstration of the preventive possibilities latent in compulsory health insurance. Somewhat similar results can be secured from compulsory insurance against unemployment. 44 8 PRINCIPLES OP LABOR LEGISLATION An indispensable part of such insurance is a system of labor exchanges, the activity of which is a powerful means of re- ducing the amount of involuntary idleness. The financial claims of unemployment insurance on industry call the em- ployers' attention to the regularization of business, for such regularization would reduce the amount of unemployment and also the cost of insurance. Refunds to employers for steadily employed workers, as provided by the English act, would also be an inducement to preventive measures. The indications are that this branch of social insurance can be made to accom- plish with respect to involuntary idleness a very considerable prevention of the evil itself, which from every point of view is far more important than the payment of benefits. As elo- quently stated by Leon Bourgeois, president of the Inter- national Association on Unemployment: "To relieve is to wait until the evil has befallen, to attempt to repair it. To relieve is to wait till misery has come, to give alms to the miserable. But alms remains at best a meritorious deed, not a social act." 1 Elimination of the condition which makes relief necessary is the social act contemplated by any adequate system of social insurance. But in this matter, as in all matters of labor legislation, the results attained depend in the last analysis upon efficient administration. 1 Address delivered at the Ghent International Exposition, 1913, Ameri- can Labor Legislation Review, March, 1914, p. 18$. i CHAPTER IX ADMINISTRATION Notwithstanding all that has been said regarding the prog- ress of legislation for the protection of the workers, it is scarcely worth consideration if the laws are not enforced. More important than the hasty enactment of additional laws is the adoption of methods of administration that will enforce them. It is easy for politicians, or reformers, or trade union officials, to boast of the laws which they have secured for labor, and it is just as easy to overlook the details, or appro- priations, or competent officials, that are needed to make them enforceable. It is easy to say that little or nothing can be done by changing the "machinery of government" and that the real thing to do is to get "better officials" to enforce the laws, and better judges to interpret them. But it is only through the "machinery of government" that such officials are found and selected, and that judges can have the facts needed for interpretation. Administration is more than mech- anism. It is a method of legislation. It is the means of investigating, drafting, and adopting enforceable laws. It is the means of getting and keeping competent officials. It is the method of determining what authority or powers the officials shall have, how they shall execute the laws, what procedure they shall follow in court, what facts they shall investigate for the use of the court in its duty of interpretation. Administration is legislation in action. In a constitutional government, executive officers are not supposed to go out with a club and, on their own initiative, force people into obeying what they happen to think is the law. Before they act, they are supposed to investigate. The legislature, too, is assumed to be a body possessed of all the facts, and its acts are unconstitutional when they disregard 29 45 o PRINCIPLES OF LABOR LEGISLATION essential facts that could be ascertained by investigation. The court, through many centuries of experience, has developed the law of evidence and the procedure of investigation for the trial of individuals who are charged with the violation of law. Finally, when the higher court passes upon the constitutional- ity of the law itself, it does so with reference to whether the facts are such as call for the law and whether the law deals with the facts in accordance with the higher law of the con- stitution. Thus each department of government is an investigating body. Only by investigation can each be restrained from the arbitrary and capricious acts that make despotism abhorrent. This is the significance of "reasonableness," which runs through every requirement of the constitution. Reasonable- ness is ascertained by investigating all the facts and giving to them "such weight as may be just and right in each case." l Thus we have executive, judicial, and legislative investigations designed to guide each department of government in dealing with all the facts in its own field. But modern industrial conditions have become so complex, and the laws deal with such a variety of facts, that a fourth department of government is emerging whose purpose is pri- marily investigation. This is administration. If administra- tion is legislation in action, it is because administration is in- vestigation. It unites in one department the investigating activities of all departments. First as to the executive de- partment and its field of investigation. i. THE EXECUTIVE The history of the so-called "factory acts" shows the be- ginnings of the special kind of investigation needed for the enforcement of labor law. The term "factory act" or "fac- tory legislation" covers all legislation, whether applied to factories or to other establishments, respecting such matters as health and safety of workers, hours of labor, child labor, payment of wages, company stores, and so on. Factory acts are distinguishable from those laws which determine the ' Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418 (1897); Freund, Police Power, 1904, p. 58. ADMINISTRATION 451 fundamental rights and duties of master and servant, em- ployer and employee, in the labor contract, such as mechanics' lien, wage exemption, employers' liability, and the law of conspiracy. The distinction is not always clear because the line between the two is drawn differently at different times and in different countries. In general, we may say that by factory legislation isjneani^thaLsidejD^^ requires officials for continuous inspectioji._and- enforcement, whereas other labor laws are enforced only when a private individual brings a case in court. The distinction tends to disappear in proportion as special administrative machinery is adopted for the enforcement of other laws. For this reason the term "labor legislation" is taking the place of "factory acts." The early factory laws provided no special officers for their enforcement. It was assumed that complaints would be made by the injured employees, and it was merely provided that the ordinary officers attached to the court, such as sheriffs, policemen, prosecuting attorneys, should attend to the prosecutions on complaint. Such is even now the theory and practice in some states, especially in the South. It required several years to discover the futility of this kind of administration. Employees would not make complaints for fear of being discharged. The officials had other duties more urgent. They were local officials, usually afraid of the voters.^-' The next step, beginning in the decade of the 'sixties, was the creation of a class of special state police, known as factory inspectors, whose duty it was to investigate the con- ditions in the factories, to get their own evidence of violations and then to conduct the prosecutions without calling upon employees to testify. The first state to appoint this class of special police was Massachusetts, in 1867. Since that time the method has been adopted in more than half of the states and the largest force of inspectors in any state is that in New York, where 225 are authorized. The investigations made by executive officials, whether they are the ordinary officials or special police, have a limited and special purpose. The object is to secure evidence for 452 PRINCIPLES OP LABOR LEGISLATION prosecutions against violators of the law. Having secured their evidence, they must take it to the prosecuting attorney or district attorney, who then reinvestigates the facts in order to determine if there is a case made out that will probably result in a conviction when tried in court. Finally, when the case is brought to trial, the court again investigates all the facts, calling witnesses on both sides and providing for their cross-examination. It follows precise rules of evidence, re- jecting what is immaterial to the point to be decided. This evidence may be heard and passed upon by a jury. The en- tire procedure of the executive, the prosecutor, and the court in reaching a decision and enforcing the law turns upon an investigation of the facts of violation. For various reasons, the enforcement of labor law in American states through investigations by factory inspectors has come to be recognized as ineffective. The inspectors are not trained for their work; they are frequently changed; they are poorly paid, and they have but little opportunity for promotion and a professional career. Their number is often inadequate for the amount of work required. Much of their time is often given to gathering and publishing large volumes of belated statistics that have but little value as an aid either to their own administration or to the legislature in improving the laws. Considerable attention has been given recently to these deficiencies and they are justly considered to be the most important problem of labor legislation. Useless statistics are giving way to timely bulletins on safety, health, and other specific conditions of labor. The New York State Factory Investigating Commission was created, after a deadly factory fire, to inquire why it was that the laws were not en- forced. 1 The United States Bureau of Labor investigated the enforcement of woman and child labor laws. 2 The American Association for Labor Legislation devotes a large part of its attention to the improvement of administration. 3 Out of these investigations and a widespread distrust of the existing 1 See New York State Factory Investigating Commission, Preliminary Report, 1912, pp. 13, 14. 2 Report on Condition of Woman and Child Wage-Earners in the United States (Senate Doc. 645, 6ist Congress, 2d Session), 1910-1913. 3 See its official organ, the American Labor Legislation Review, pub- lished quarterly, beginning 1909. ADMINISTRATION 453 methods of factory inspection have come the beginnings of serious attempts to improve the character of administration. The more promising of these attempts are described in the following pages. They involve not only the executive branch of government, but also the legislative and judicial branches. 2. THE LEGISLATURE In an executive investigation no question is raised as to the reasons for the enactment of the law itself. The question is merely whether the law was violated or not. Investigations take a much wider scope when the matter is being prepared for the legislature upon which it shall proceed to enact a law. The first investigations on a subject of legislation are usually made by private parties or by persons whose object it is to secure legislation. In the field of labor the American working- men's organizations, as early as 1832, published reports upon the conditions of labor showing the need of new laws for their correction. These crude investigations have been followed and multiplied by a great variety of associations and organiza- tions. In the decades of the 'forties and 'fifties industrial congresses were held in different cities and investigations of shop and factory conditions were made. The International Workingmen's Association, founded by Karl Marx and the British trade unionists in 1864, and spreading to the United States, contained as one of its objects the collection of informa- tion and carrying on of investigations? of labor conditions in different countries of the world. The National Labor Union in 1868, the industrial congresses of 1873 and 1874, the Knights of Labor and the American Federation of Labor have all in turn conducted investigations on all the aspects of labor problems that in their opinion needed legislation. In the decade of the 'eighties private organizations like the Consumers' League began investigations, especially of child labor and sweating systems. The National Child Labor Com- mittee, founded in 1904, has had a systematic plan and a wide field of investigation. In 1900 the first international associa- tion for the investigation of labor conditions in all countries was organized at the Paris Exposition, under the name of the International Association for Labor Legislation. Up to 1920 454 PRINCIPLES OF LABOR LEGISLATION it had organized sections in fifteen countries. 1 In some cases affiliations were made with previously existing private or- ganizations. The object for which the International Asso- ciation was founded was to bring about uniform legislation through treaties entered upon by independent governments. The procedure adopted was to hold international biennial con- gresses in Switzerland, at which the conditions of labor and the laws of different countries were reported upon and plans for uniform laws were drafted. Through the courtesy of the government of Switzerland the diplomatic representatives of the different nations would then be invited to meet and formu- late "conventions" carrying out, as far as possible, the plans recommended by the preceding congress of the Association. When these "conventions" were agreed upon the several countries were expected to enact the desired legislation and enforce it in their own jurisdiction. When any country adopted the recommendations of a convention it became equivalent to a treaty between that and other countries which had acted in the same way. The first international "con- ventions" of this kind were those of 1906, forbidding the night work of women 2 and the use of poisonous phosphorus in the manufacture of matches. 3 The former was quickly adopted by fourteen nations and the latter by eleven. The American section of the International Association was organized in 1906 with the object of investigating conditions underlying labor laws and disseminating information leading to the enactment and efficient enforcement of protective legis- lation. It has conducted investigations, held national con- ferences, published reports, drafted bills, and secured the enactment into law of progressive standards. The characteristic of the activities of the International Association and its fifteen national sections is scientific in- vestigations conducted with the definite object of securing needed legislation. Like other private associations its work is largely propagandist and does not carry official weight. Austria, Belgium, Denmark, England, Finland, France, Germany, Holland, Hungary, Italy, Norway, Spain, Sweden, Switzerland, and the United States. 2 See "Night Work," p. 273. 3 See " Prohibition of Substai ubstances or Instruments," p. 354. ADMINISTRATION 455 However, the International Association, with permanent head- quarters in a government building at Basle, Switzerland, has been in receipt of subventions from twenty-two different national governments. In this respect it marks the beginning of an affiliation between private investigations and those conducted by government. 1 As frequently occurs with pio- neer social organizations, certain of the activities of the Inter- national Association have now been taken over officially, in this case by the International Labor Office instituted under the League of Nations. 2 Governmental study of labor conditions in America also dates back to the early part of last century. As early as 1838 the state legislature of Pennsylvania conducted an investi- gation of woman and child labor in the factories of that state. 3 Massachusetts followed in 1845. Many states and the national government have at different times carried on in- vestigations of this kind for special purposes by temporary committees of the legislature or by commissions appointed for the purpose. During the years IQIQ to ion; there were nearly thirty state commissions and one federal commission for the study of industrial accidents and the drafting of laws on workmen's compensation. Another notable example is the Factory Investigating Commission of New York, whose care- ful studies led to the adoption in 1914 of a large number of labor laws by the legislature of that state. In the broader field of federal investigations, a committee of the Senate of the United States in 1885 held extended hearings on the sub- ject of capital and labor. The Industrial Commission, com- posed of members of Congress and appointees of the President, made a report of nineteen volumes on the same and other subjects in 1901. Other temporary federal commissions have been the one on Immigration in 1911, and the Commission on Industrial Relations of 1913. The origin of these temporary legislative investigations was a demand on the part of private organizations either for definite legislation or for official inquiry which would have 1 See Bibliography, p. 525. 2 See p. 455. 3 Pennsylvania Senate, Journal, Vol. II, 1837-1838. 456 PRINCIPLES OF LABOR LEGISLATION greater weight through the power of compelling witnesses to testify and the conclusiveness which could not be secured by private societies. Their intent was both to inform the public and to aid the legislature. The first state in the world to establish a permanent bureau for the investigation of labor conditions was Massachusetts in 1869. Under the name of bureau of labor statistics, or bureau of labor, such permanent machinery of investigation has been established in about forty states, by the federal government with its Department of Labor, first established in 1884, and by all national governments where the problem of labor and capital has become prominent. These bureaus were at first established primarily on the petition of labor or- ganizations. 1 Their scope has been broadened in some cases, but their largest activity has been the collection of statistics of wages, hours, and conditions of labor. At times they are called upon by the legislature to make investigations which otherwise would have been conducted by legislative commit- tees or temporary commissions, such as the investigation of woman and child labor by the federal Bureau of Labor in 1908. A certain ineffectiveness of these bureaus has sprung from their desire, as permanent bureaus, to maintain a non-com- mittal attitude in presenting facts, and they generally refrain from making recommendations for legislative action. An ob- stacle, also, in the way of these bureaus for purposes of legis- lative investigation arises from the fact that they are, in near- ly all cases, combined with the special police or factory in- spection department, whose business is investigation for the purpose of prosecution. A person investigated for crime does not readily furnish the same investigator with information for statistics. The fullest development to date of official bureaus for ascertaining facts as a basis for legislative enactment is found in the international labor organization set up by the treaty which concluded the world war. Part XIII of the treaty declares that permanent peace such as is sought by the League of Nations "can be established only if it is based on l Powderly, Thirty Years of Labor, 1889, p. 303. ADMINISTRATION 457 social justice," and that the failure of any nation to adopt humane labor standards "is an obstacle in the way of other nations which desire to improve the conditions in their own countries." To arrive at desirable international minimum protective standards a permanent International Labor Office is created, with quarters at the seat of the League of Nations. The office is to be in charge of a governing body of twenty- four persons, twelve representing the governments, six the employers, and six the workers of the affiliated countries, selected for three-year terms. Eight of the twelve govern- ment members are to represent the eight nations of chief industrial importance. The governing body appoints a di- rector of the office, who chooses the staff, "a certain number" of whom must be women. The duties of the organization include collecting and distributing labor data, conducting investigations, publishing a periodical on employment prob- lems, and preparing the order of business for the International Labor Conferences. The International Labor Conferences which the office thus assists in conducting are to be held at least yearly at the seat of: the League of Nations or at some other place previously selected. They are composed of four delegates from each country attached to the league, divided among the govern- ment, the workers, and the employers, in the same proportion as the members of the governing body, namely, two, one, and one, respectively. The labor and employer delegates are to be named by the governments ' ' in agreement with the indus- trial organizations, if such organizations exist, which are most representative of employers and workpeople" in the respective countries. Delegates may be accompanied by advisers, and when questions affecting women are before the conference at least one of the advisers "should be" a woman. At the first annual conference, held in Washington, D. C., during October and November, 1919, some thirty countries were represented. Recommendations and draft conventions were adopted on such matters as the eight-hour day and forty-eight-hour week, public employment offices, reduction of child labor, prohibition of women's work immediately before and after childbirth, prohibition of night work for women and young persons, pro- tection against anthrax, lead poisoning, and white phosphorus 45 8 PRINCIPLES OF LABOR LEGISLATION poisoning, and establishment of government factory inspec- tion and health services. 1 3. THE JUDICIARY In the United States the judicial branch of government may be called upon to make investigations of labor condi- tions in order to render decisions on the constitutionality of laws enacted by the legislature. These investigations are quite different in character from those, previously described, in a trial for the violation of statutes. In a trial the question to be decided is that of a particular violation of a law. In questions of constitutionality the question is the conformity of the law with the constitution. Here the court must in- vestigate the question as to whether there is really an evil condition that needs to be remedied; whether this condition is a menace to the public or whether the statute is merely a benefit to private individuals without a public purpose; whether under the actual conditions the legislature confiscates property, discriminates between individuals, and thus denies the equal protection of the laws. 2 In making such an investigation the court might appoint a referee or master in chancery to take evidence and investigate the facts. This procedure is often followed in the regulation 1 For text of the labor clauses in the peace treaty and of the recom- mendations and draft conventions adopted by the first conference, see American Labor Legislation Review, September and December, 1919. _ * "The principle involved in these decisions is that where the legisla- tive action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its powers, in interfering with liberty of contract; but where there is reasonable relation to an object within the governmental au- thority the exercise of legislative discretion is not subject to judicial review." (Chicago, B. & Q. R. Co. t>. McGuire, 219 U. S. 549, 31 Sup. Ct. 259 (1911).) "In every case that comes before this court, therefore, where legisla- tion of this character is concerned, and where the protection of the federal constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family." (Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539 (1905).) See also "Public Benefit," p. 24, and "Equal Protection of the Laws," p. 28. ADMINISTRATION 459 of public utilities. The referee, usually a lawyer appointed by the court, calls before him accountants, engineers, experts, as needed, and makes a report to the court of the facts. Such a practice, however, has not been followed in cases where the constitutionality of labor laws is called in question. This is probably owing to the fact that legislation of this character covers a large variety of subjects, requires a variety of wit- nesses and extended technical investigations, and that the court is not itself equipped with the staff of investigators com- petent to secure and furnish the information. The result is that social and economic conditions are not investigated by the court and it is compelled to fall back upon the principles of constitutional law, without full knowledge of the conditions to which the statute applies. Examples of decisions without investigation of conditions are as follows: The Colorado Supreme Court in declaring unconstitutional a law which limited the hours of labor in smelters to eight a day said: This act is an unwarrantable interference with, and infringes, the right of both the employer and employee in making contracts relating to a purely private business, in which no possible injury to the public can result. 1 Likewise Judge Gray explained in the following language why the New York court nullified a law prohibiting night work for women: I think that the legislature, in preventing the employment of an adult woman in a factory, and in prohibiting her to work therein before six o'clock in the morning, or after nine o'clock in the evening,has over- stepped the limits set by the constitution of the state to the exercise of the power to interfere with the rights of citizens. ... It is clear, as it seems to me, that this legislation cannot, and should not, be upheld as a proper exercise of the police power. It is, certainly, discrimi- native against female citizens, in denying to them equal rights with men in the same pursuits. 2 In the following cases the court clearly states that sufficient facts have not been presented to prove that legislation of that character is necessary to conserve the public welfare. 1 In re Morgan, 26 Colo. 415, 58 Pac. 1071 (1899). 2 People v. Williams, 189 N. Y. 131, 81 N. E. 778 (1907). 4 6o PRINCIPLES OF LABOR LEGISLATION In the first Ritchie case the Illinois Supreme Court said: There is no reasonable ground at least none which has been made manifest to us in the arguments of counsel for fixing eight hours in one day as the limit which woman can work without injury to her physique, and beyond which, if she works, injury will necessarily fol- low. But the police power of the state can only be permitted to limit or abridge such a fundamental right as to make contracts, when the exercise of such power is necessary to promote the health, com- fort, welfare, or safety of society or the public, and it is questionable whether it can be exercised to prevent injury to the individual en- gaged in a particular calling. 1 In the Lochner case, where a ten-hour law for bakers was tested, the court had before it only a limited amount of gen- eral information on the subject, without any special investiga- tion. The majority ruled that the facts were not conclusive to warrant such legislation for the following reasons : We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safe- guard the public health, or the health of the individuals who are following the trade of a baker. . . . We think that there can be fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. . . . There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. 2 The foregoing cases illustrate the attitude of the courts where investigations of the facts have not been brought to their attention, or where they have been compelled to de- pend upon such knowledge as they themselves might have regarding such facts. In such a case the court might take what it calls "judicial notice" of facts even though they are 1 Ritchie v. People, 155 111. 98, at p. 113, 40 N. E. 454 (1895). s Lochner v. New York, 198 U. S. 45, at p. 58, 25 Sup. Ct. 539 (1905). ADMINISTRATION 461 not presented in evidence, and might rely upon what it con- siders "common knowledge," or that kind of knowledge which a reasonable person ordinarily well informed might be sup- posed to have upon the subject. Common knowledge may go still further and include investigations made by private societies or by individuals or attorneys which appear to the court as presenting the facts pertaining to the case. "Courts will take notice of whatever is generally known within the limits of their jurisdiction." 1 "A common belief, like com- mon knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legis- lature and the courts. While the power to take judicial notice is to be exercised with caution and due care taken to see that the subject comes within the limits of common knowledge, still, when according to the memory and conscience of the judge, instructed by recourse to such sources of information as he deems trustworthy, the matter is clearly within those limits, the power may be exercised by treating the fact as proved without allegation or proof." 2 The first notable example of a decision on the constitution- ality of a law based upon investigations of this kind is that of the Holden v. Hardy case, in 1898. In that case the at- torney in defense of the law made a partial investigation of the health of workmen in mines and smelters which was pre- sented in his brief to the court. Upon this information the court took exactly the opposite view of the Colorado court above cited, and held that the law was constitutional upon the following grounds: While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, when the operative is deprived of fresh air and Quoted from Brown . Piper, 91 U. S. 37 (1875), in People v. Charles 2 Quoted from Viemeister v. White, 179 N. Y. 235, at p. 240, 72 N. E. 97 (1904), in People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E. 641 (1915). See also cases quoted in Mr. Brandeis' brief, published by the National Consumers' League, in Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908). 462 PRINCIPLES OF LABOR LEGISLATION sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of refining or smelting. 1 It is to be noticed that while the Supreme Court held that the questions of law that is, the principles of public benefit and equal protection of the laws were identical in the Loch- ner case and the Holden v. Hardy case, the former was de- clared unconstitutional, while the latter was upheld because of difference in fact. Similarly, Mr. Brandeis in his brief in Muller v. Oregon quotes the law as propounded in the Lochner case but argues that the facts "establish . . . con- clusively, that there is reasonable ground for holding that to permit women in Oregon to work in a 'mechanical estab- lishment, or factory, or laundry' more than ten hours in one day is dangerous to the public health, safety, morals, or wel- fare." The court, which sustained the law, concurred in counsel's contention, as indicated by the following quotation: In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation, as well as expression of opinions from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defend- ant in error is a very copious collection of all these matters, an epitome of which is found in the margin. . . . The legislation and opinions re- ferred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a wide- spread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. . . . When a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge. 2 A supreme court may even squarely reverse itself when it finds that a former decision was made without full knowledge of the facts. We have quoted above the language of the 1 Holden v. Hardy, 169 U. S. 366, at p. 395, 18 Sup. Ct. 383 (1898). 8 Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908). ADMINISTRATION 463 New York court, in 1907, in the case of People v. Williams, in which the court, without the aid of official investigation, held that a law prohibiting night work for women was un- constitutional. Eight years later the same court overthrew its former decision, when the legislature had again enacted a similar law, this time, however, following the recommenda- tions of the state factory investigating commission. The court justified itself as follows: 1 It is urged that whatever might be our original views concerning this statute, our decision in People v. Williams ... is an adjudication which ought to bind us to the conclusion that it is unconstitutional. While it may be that this argument is not without an apparent and superficial foundation and ought to be fairly met, I think that a full consideration of the Williams case and of the present one will show that they may be really and substantially differentiated, and that we should not be and are not committed by what was said and de- cided in the former to the view that the legislature had no power to adopt the present statute. . . . While theoretically we may have been able to take judicial notice of some of the facts and of some of the legislation now called to our attention as sustaining the belief and opinion that night work in factories is widely and substantially in- jurious to the health of women, actually very few of these facts were called to our attention, and the argument to uphold the law on that ground was brief and inconsequential. Especially and necessarily was there lacking evidence of the extent to which, during the intervening years, the opinion and belief have spread and strengthened that such night work is injurious to women; of the laws, as indicating such belief, since adopted by several of our own states and by large European countries, and the report made to the legislature by its own agency, the factory investigating commis- sion, based on investigation of actual conditions and study of scien- tific and medical opinion that night work by women in factories is generally injurious and ought to be prohibited. 2 Not only have the courts changed their opinion as to actual conditions because of investigations, but as the in- 1 People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E. 639 (1915)- 2 See also McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206 (1909), in which the court upholds a screen law on the basis of investigations made by a commission; and State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 97 N. E. 602 (1912), where the court accepts the findings of a special investigating committee as conclusive "to sustain the exercise of the police power" in workmen's compensation legislation. 4 6 4 PRINCIPLES OF LABOR LEGISLATION vestigations educated the public and created sentiment in favor of such legislation, courts have even indirectly reversed themselves on principles of law. The two Ritchie cases in Illinois offer an instance. In the first case (1895) one of the determining objections that the court raised was that "it is questionable whether it (the police power) can be exercised to prevent injury to the individual engaged in a particular calling." l In other words, the court ruled that legislation protecting the health of the public or society was a proper exercise of the police power, but that it was improper when aimed to protect individuals against themselves. 2 The court, in the second Ritchie case (1910), found it convenient to avoid reference to this principle and scrupulously omits that portion in quoting from the case. According to the second opinion the difference turned, not on principle, but on fact. The court said: The second proposition upon which the cases differ is this: the act of 1893 provides for an eight-hour day in which women shall be permitted to work in mechanical establishments, or factories or laundries. Can it be said if the limitation upon the number of hours which women were permitted to work in the designated callings in the act of 1893 had been fixed at ten hours instead of eight hours the court would have held the act unconstitutional as an unreasonable exercise of the police power of the state or that the act would have been held obnox- ious to the constitution as special or class legislation? We do not think it can be so said, as there is throughout the opinion a veiled suggestion which indicates that it was the opinion of the court that the limitation of the right to work longer than eight hours was an unreasonable limitation upon the right of contract. 3 The principle that the police power cannot be exercised to protect individuals against themselves would overthrow a ten- hour law as well as an eight-hour law. But the fact that a ten-hour law is less restrictive than an eight-hour law causes 1 Ritchie v. People, 155 111. 98, 40 N. E. 454 (1895). 2 For a critical discussion of this principle see Freund, Police Power, p. 141; for an acceptable presentation see In re Morgan, 26 Colo. 415, 58 Pac. 1071 (1899); and In re Jacobs, 98 N. Y. 98 (1885). In Holden v. Hardy the United States Supreme Court repudiates this principle, hold- ing that it is constitutional under the police power to enact legislation either to protect the public or to protect individuals against themselves or acts of others. See "Public Benefit," p. 24. 3 Ritchie v. Wayman, 244 111. 509, 91 N. E. 695, at p. 700 (1910). ADMINISTRATION 465 the Illinois court to abandon the principle and to inquire into the facts. By a similar reliance on facts the Supreme Court of the United States holds that an eight-hour law is constitutional and reasonable. 1 The foregoing illustrations have been cited, among many that might be given, on account of the peculiarly high position occupied by American courts through their power to veto legislation on the ground of unconstitutionality. Abundant criticism of the courts for exercising this power, and insistent demands for constitutional amendments abrogating the power, have been repeatedly made for more than a hundred years. Without pretending to enter upon a full discussion of these criticisms and demands, one thing is apparent: they disregard the great importance which the court ascribes to reliable and complete investigations of actual conditions. The foregoing illustrations, as well as others found in this book, indicate that criticism should be directed rather against legislatures and administrative authorities who enact and administer laws without reliable knowledge of the conditions with which they are dealing. The principles of the constitution and the inter- pretations by the Supreme Court are, on the whole, broad enough to admit labor legislation in so far as based on au- thenticated facts, and much broader than is necessary to admit legislation that is actually enforceable by the existing defective machinery of administration. For the present, at any rate, it is not so much attacks on the courts that may be expected to bring progressive labor legislation as reliable investigation of actual conditions by competent administra- tive authorities whose work will command the respegt, not only of courts, but of legislatures, of employers and employees, of the people at large. It is this gap in the American system of labor law that is sought to be filled by the so-called industrial commission. 4. THE INDUSTRIAL COMMISSION In all of the investigations above mentioned, even those carried on by the best qualified experts, there is lacking the 1 Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342 (1915). See "Maxi- mum Hours, Women," p. 246. 466 PRINCIPLES OF LABOR LEGISLATION important feature of prima facie evidence, or of evidence that is conclusive as to the facts in a trial in court. Those in- vestigations were not conducted under the rules of evidence which the court relies upon, and it therefore treats them merely as common knowledge. Even the factory investigat- ing commission of New York, although created by the legis- lature, did not make an investigation that, in the eyes of the law, had binding force upon the court. It indicates, how- ever, the kind of investigations which are the next step in the administration of labor laws. This is the transformation of the bureaus of labor statistics into permanent "factory in- vestigating" commissions, with the object, not only of fur- nishing information to the legislature and to the people, but also of furnishing conclusions or findings of fact which shall be prima facie evidence of the truth, or even conclusive and binding upon the court. This object is sought to be obtained through the powers granted to an industrial commission. 1 (/) Administrative Investigations One reason for the breakdown of administration is the fail- ure to provide for that executive discretion which is as in- evitable and necessary as legislative discretion. The Ameri- can theory of separation of branches of government assigns to the legislature the investigation of conditions upon which its policy or principle is adopted and enacted into statute law. With the growing complexity of conditions the legisla- ture has been compelled to go into the investigation of minute details, legislation on which, if applied to every establishment, would be unenforceable. Consequently the factory inspectors or special police are compelled to decide upon their own executive investigations whether or not they will enforce these details. The situation is similar to the history of railroad regulation. In the early "Granger laws" of forty years ago it was at- 1 To what extent this object can be accomplished constitutionally is not here discussed. The court is itself both an investigating body and independent of the legislature. It can evidently refuse to be bound by a creature of the legislature. At the same time the ingenuity of bill- drafters has worked out methods of procedure which go far toward accomplishing the object. These are considered below. ADMINISTRATION 467 tempted to enact a detailed actual schedule of each rate for every shipment on every road, and then it was left to the individual shipper to bring suit in the courts to enforce the schedule. The later legislatures of the past twenty years have omitted these technical details and have contented themselves with laying down general rules such as that all rates and services shall be reasonable as between the roads and the shippers. They have then created railroad, or pub- lic utility commissions, whose powers, in the light of the con- stitution, are neither legislative, executive, nor judicial, but investigational. The problem which the legislature sets to these commissions for investigation is that of reasonable rates and services in each particular case where the question arises. The principles which enter into reasonableness are being continually laid down by the courts in long lines of decisions. Consequently the commission needs no power of discretion. It must follow the law that is, the principles. It only investigates and ascertains the facts which those principles call for. The legis- lature meanwhile has enacted that, when these facts are ascer- tained and published, then the law shall go into effect. The fact is the rate or service which has been ascertained by the investigations of the commission to be reasonable. It is an- nounced and published as a finding of fact, a "rule," or " regulation," or "order," not a statute, but haying the force of a statute. This is the finding or conclusion of the commis- sion's investigations. It is prima facie valid in court and can- not be overthrown except by overwhelming evidence to the contrary. Labor legislation has now reached an even more volu- minous and technical stage than that which applies to rail- road regulation. The legislature cannot possibly consider all the facts and details. Yet the legislature alone should de- termine the policies and the standards, and should go only into such details as have general application. The "indus- trial commission" corresponds to the public utility or railroad commission. The latter passes upon the opposing interests of corporations and consumers or shippers, epitomized in the price bargain. The former passes upon the interests of em- ployer and employee, epitomized in the wage bargain. Such O o O <5 , ^ 1 ^1 5 uro ro 1 (O O ^ / 1 S 5 2 ~O v_ i ^ -E S ! - 8 - 02 i X3 -^ v a. (j -j g E .v> (0 c o < ill! M* I jci ' dD uj^ g U- ,j (/) *~ O "/i < S -^ -o - > . 5 TO 5 O ' [5^ mmm |S|? o ^^ X^ I ^ - 10 5 3 III 5 f L 'i E *oj ^i | 12 r.~ (0 (U ^ a j||. T> Q^o" _c ^ ^^12 UJ^ Ml C (Q 3 9 g 1=1*1. i ^ jj ^ a. LL o ^ 5J J (0 c _ bl-is -^ V 'C ZI 5 *""} K3 a ' 3 ^ w_ >0 C ^ a . -4- it; 4- J ( |f o ^ o a c E > ^1 -*-* llcj (O - c Q a 9 i L u c >^ 2 Q / S| T ^4 1^2 ^ o <^> c t *r (ij i"P c lA- L: ||f c c o ISl 3 specters. c i D ^ cQ !o < Q. ft _c -*-> C -.o 21 ^3 - 1 V, 3-* 470 PRINCIPLES OF LABOR LEGISLATION a commission investigates the facts and works out the details which the legislature cannot pass upon. Various states have begun experiments in this direction. The problem is much more diversified than that of establish- ing reasonable rates and services. "Reasonableness" in railroad regulation has a comparatively definite meaning. But reasonableness in labor legislation is as complicated as human life and modern industry. A reasonable standard in one field has no meaning in another. There are health, safety, and welfare, for example, which require a variety of standards. There is the minimum wage for women and minors which requires several standards. There are hours of labor, days and periods of rest, age and sex of workers, with varying standards. There are private employment offices, workmen's compensation for accidents, and many other matters. To meet these varying needs, and to set these different standards, the states have established special commissions. Some dozen states in 1920 had minimum wage commissions, to determine by investigation the living wage that is necessary for women and minors. Thirty-two states had workmen's compensation commissions, to determine, under the rules laid down by the legislature, just how much is the loss of wages due to an industrial accident for which the employer shall make compensation. Usually this new class of commission has been created in addition to the existing department of labor and statistics. The existing departments continue to follow their old line of executive procedure, and consequently the states have an unnecessary number of bureaus and departments, all dealing with labor law by different methods, and often overlapping and conflicting. Thus the state of Illinois, as shown in the chart on page 469 had in 1915, before reorganization took place, nine independent agencies dealing with labor. In the federal government at Washington, besides the Department of Labor and its bureaus of Labor Statistics, Immigration, the Women's Bureau, and the Children's Bureau, there are the Public Health Service of the Treasury Department, the Bureau of Mines of the Interior Department, the Bureau of Standards of the Commerce Department, the Interstate Commerce Com- ADMINISTRATION 47 1 mission, and the Board of Mediation and Conciliation, all of them dealing directly with problems of labor. This multiplication of boards and commissions began to attract serious attention when workmen's compensation for accidents was added to the list of laws. Here it is immedi- ately seen that accident prevention is as important as accident compensation and that the two should go together. Hence, in several states l the compensation commission was given authority to make rules for safety, and there resulted two departments with the same purpose, the factory inspection department enforcing the legislative statutes and the com- pensation department enforcing its own rules. According to the legislative method, there had grown up a complicated code of safety regulations, covering, in some states, the entire field of modern industry. These laws were a kind of patch- work, amended at various sessions of the legislature, adopted after legislative hearings where the lobbyists appeared for or against, and enacted by legislatures whose members had no acquaintance with the industries to be regulated. Such laws were practically unenforceable. It was necessary to separate legislation from administra- tion. This has been accomplished by the creation of the in- dustrial commission which combines compensation with ac- cident prevention, relieves the legislature of details, and takes the place of the factory inspection department. The legis- lature now repeals its complicated statutes on safety, and con- tents itself with laying down the general state policy on the subject and leaving the details to the commission. The Wis- consin statute of 1911, amended in 1913, for example, merely requires that every employer shall furnish such employment, such a place of employment, and such safety devices, safe- guards, methods, and processes, as shall protect the life, health, safety, comfort, decency, and moral well-being of employees to the extent that the nature of the employment or place of employment will reasonably permit. 2 The law then gives to 1 California, Connecticut, Illinois, Iowa, Indiana, Kentucky, Mary- land, Massachusetts, Montana, Nevada, New York, Utah, Vermont, Washington. 2 Wisconsin in this respect goes further than other states; Laws 1913, Sees. 2394-41, 2394-48. 472 PRINCIPLES OF LABOR LEGISLATION the commission authority to "investigate, ascertain, declare, and prescribe" what safety devices, safeguards, or other means or methods of protection are best adapted to render the employees of every employment and place of employ- ment safe and to protect their life, health, safety, comfort, decency, and moral well-being. 1 The orders of the com- mission go into effect thirty days after publication and are priina facie lawful. By means of this procedure the laws can be adapted to every detail of modern industry. They can be changed at any time when a further investigation shows new dangers or new methods of prevention. The commission is continually in session, but a legislature meets only at stated times. The commission is continually investigating while it is enforcing the laws, but the legislature investigates only when lobbyists, petitioners, or members succeed in getting a hearing. Other states which have adopted a similar form of com- mission with power to make rules and issue orders on safety are Ohio, Pennsylvania, New York, and Colorado. These states have also consolidated all of the separate boards and commissions into a single industrial commission, 2 and for each branch of its work the legislature, as in the branch of accident prevention, also lays down the general policy and standard, leaving to the commission the investigations and findings necessary to make the law effective for each employer or employee. The following illustrations, taken from the laws of Wisconsin, are more or less typical of laws in other states : For compensation in case of accident the legislative stand- ard may require "reasonable" medical and surgical care, 65 per cent, of the average weekly earnings lost during disability, and so on, to be determined and awarded by the commission. For private employment offices the legislative standard may prohibit misleading statements, discriminatory fees, and the like, and then give the commission power to "fix and order such reasonable rules of conduct of the business of any em- 1 Wisconsin, Laws 1913, Sec. 2394-52. 2 Wisconsin, 1911; Ohio, 1913; New York, 1913 and 1915; Pennsyl- vania, 1913; Colorado, 1915. Recommended by legislative committee, Missouri, 1914. Similar bills introduced in New Jersey, Maryland, Illinois. ADMINISTRATION 473 ployment agent as may be necessary adequately to carry out" the sections of the law. For the wages of women and minors the legislature may require employers to pay a "living wage," or such compensa- tion "whether by time, piece-work, or otherwise," as shall be "sufficient to enable the employee receiving it to maintain himself or herself under conditions consistent with his or her welfare." The commission, then, must carry on extensive investigations, must make various classifications, and de- termine for each the amount of the wage that the legisla- ture intended. For the hours of labor for women the legislature may pro- hibit the employment of any female "for such period or periods of time during any day, night, or week, as shall be dangerous or prejudicial to the life, health, safety, or welfare of such female," and then authorize the commission to "in- vestigate, ascertain, determine, and fix such reasonable classi- fication" and such periods of time as shall carry out the purposes of the law. For dangerous employments the legislature may provide that "no employer shall employ, require, permit, or suffer any minor or any female to work in any place of employment, or at any employment, dangerous or prejudicial to the life, health, safety, or welfare of such minor or female," and then authorize the commission to investigate, classify, and deter- mine the specific occupations from which women and minors shall be excluded. For the regulation of apprenticeship the legislature may require an indenture stipulating the hours for work, the hours for attendance at school, the Compensation, etc., and authorize the commission to draft, approve, and enforce the same. For industrial and vocational education, the legislature may require employers to permit children to attend continua- tion schools a certain number of hours each week in the day- time, without deduction of pay, and then authorize the com- mission to issue and revoke permits to work based on in- vestigations showing what is necessary to secure compliance with the law. The foregoing illustrations show the distinction between a legislative policy which sets up a standard, and an adminis- 474 PRINCIPLES OF LABOR LEGISLATION trative investigation which applies the standard to each case or each class of cases. The principles of standardization have two aspects, which may be designated as diversity and gener- ality. There is a wide diversity of standards, simply because there is a wide diversity in the subject-matter of legisla- tion, all the way from safety and health to wages and edu- cation. Diversity requires specialization on the part of investigators, and consequently the staff of a commission requires physicians and hygienists for some of the stand- ards, accountants and actuaries for others, engineers and me- chanics, economists and statisticians, business men and work- ingmen, according to the peculiarities of each subject and the special or general knowledge required. Much more difficult and debatable is the question of gen- erality of the standards. The most general standard is "reasonableness." Reasonableness, in law, means simply that all of the facts must be investigated and due weight must be given to each. If the legislature merely required that wages or hours should be "reasonable," then the commission would have almost as wide discretion as the legislature itself. If, at the other extreme, the legislature prescribes minute de- tails for every act of the commission, then the investigations are reduced to those executive investigations already de- scribed as the means of securing evidence of violations for prosecution. Between these two extremes of generality and particularization there is room for wide differences of opinion and policy. In some subjects the legislative standards must necessarily be much more general than in others. A "living wage" can scarcely be ascertained as precisely as the age of a child. The number of hours of continuous work that are injurious to the health of women cannot be as accurately de- termined as the dangerous character of a set screw or a buzz- saw. Only this is to be noticed: If the legislature goes too far in specifying details of each standard it forces widely dif- ferent factories, shops, ages, conditions, into the same mold, and assumes to have an intricate knowledge of conditions and a foresight of changing conditions which its brief and crowded sessions do not permit. Consequently, the law is unenforce- able. On the other hand, the commission is continuously in session. It is not hurried. It can adopt a general rule or can ADMINISTRATION 475 go into the details as far as it has information. It has its staff of investigators and inspectors who are continually fur- nishing new information, and it can change its rules as needed. It has its representatives of employers and employees who testify to the actual conditions that need remedying and the actual workings of the rules already adopted. It can make classifications and issue different rules for different conditions, and can change its rules when the conditions change or when it discovers new and more effective remedies. The principal value and importance of administrative in- vestigations is their conclusiveness. No matter how indef- inite or general is the legislative standard, it must be reduced to a definite rule upon which prosecutions and penalties can be based. A decision must be reached and enforced. We have seen that the investigations of private associations, of experts, of attorneys on either side of a case, or even of legis- lative committees and temporary commissions, are not con- clusive. If the court accepts these investigations it does so as facts of "common knowledge" of which the judge takes "judicial notice" without proof. And, in so doing, every reasonable doubt is resolved against them and in favor of the alleged violator. To be conclusive, an investigation must be clinched by proof, and the procedure by which this is accom- plished is prescribed by the courts in their decisions on due process of law. An administrative investigation must usually follow this procedure: First, the inspectors and investi- gators assemble their facts. The commission then draws its tentative conclusions and gives notice officially of a pub- lic hearing for all persons whose interests will be affected by the rule. Opportunity to be heard is essential to due proc- ess of law. After the public hearing the commission drafts its rules in final form, and, when they are officially published, they go into effect on such date as the legislature has previously designated. But, even with this procedure, the rules and orders of the commission are not legally conclusive and bind- ing on the court. If an employer violates them and then attacks them in court, he does so on the ground that they are unreasonable in some respect, such as class legislation or discrimination, instead of reasonable classification. If_iiy are unreasonable..- then they are unconstitutional. The 476 PRINCIPLES OF LABOR LEGISLATION court may decide to reinvestigate the facts on its own ac- count. It is an independent branch of government and can- not be deprived of its powers by the legislature. But the legislature may prescribe the court's procedure and may give to the rules of the commission, when based on full investiga- tion, a preferential position as proof. It makes them prima facie lawful, valid, and reasonable, so that the burden of proof is on the employer to prove affirmatively that they are un- reasonable. It may require the court to send the case back to the commission for reinvestigation if the employer attempts to bring to the court any evidence that he had withheld from the commission. The commission may then, if it so decides, change its orders to cover the omitted facts. In these and various other ways suggested by the ingenuity of bill-drafters, the investigations, findings, and orders of administrative com- missions are given, not actually binding and conclusive weight on the courts, but such a high degree of conclusiveness that for ordinary, practical purposes they are final. 1 In this respect, administrative investigations are a necessary aid to the court and serve to place in evidence the industrial facts which otherwise would not receive due weight. The court is intrusted with the final authority to apply the prin- ciples of justice and the constitution to the acts of legislatures and administrative commissions. It decides whether or not the act accomplishes a public purpose and affords equal pro- tection of the laws. These are questions of fact in each par- ticular case. A question of fact resolves itself into a question of classification. Does the particular act apply to some people and not to others who are similar? Or does it enforce the same arbitrary rule on a variety of persons who are not really similar? If so, it is discriminatory and unequal in that it is based on a false classification. Does the act benefit a class of people who do not need the aid of the police power and whose private benefit is not a public benefit? Does the act impose burdens on some that are so far in excess of the benefits to 1 For different methods of securing different degrees of conclusiveness, consult the minimum wage laws of various states, the industrial com- mission laws already referred to and the laws creating state public utility commissions, the Interstate Commerce Commission and the Federal Trade Commission. See also "Penalties and Prosecutions," p. 489. ADMINISTRATION 477 others that they are unreasonable? l These are some of the questions of classification asked by the courts, and, evidently, they require accurate investigation and well-established facts in order to avoid the charge of false classification. Speaking of the need of administrative investigations that shall approach the standard of conclusiveness in establishing the facts for classification. Professor Ernst Freund has recently said: 2 The equal protection clause of the fourteenth amendment will, of course, be thought of at once as a possible weapon of defense against unwarranted class legislation. However, a study of the operation of this clause in the past must produce considerable skepticism as to its availability in the future. There are some states in which it plays a considerable part in the judicial overthrow of statutes, and Illinois is conspicuous in this respect. In that state, however, the application of the rule of non-discrimination has been so capricious that the impossibility of foretelling what kind of classification for purposes of welfare legislation will stand the test of judicial scrutiny has become a notorious grievance. The Supreme Court of the United States, on the other hand, having applied the rule in one case (that of the antitrust act of Illinois, Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. 431) with surprising strictness, has since practically taken the position that a legislative classification will be sustained if there is any reasonable possibility of its justification, and in the last ten years no measure has been declared invalid by reason of undue partiality or discrimination. No jurisdiction has developed any constructive theory of classification which might serve for guidance or protection. The reason for this failure is tolerably clear. The legitimacy or illegitimacy of classification can be established only on the basis of social or economic data of great complexity. It presents a question of fact for the examination of which the courts are not equipped. It is always a condition as well as a theory which underlies public welfare legislation; and while the courts can deal adequately with the theory, the condition must elude them unless it is notorious, and at present the causes of social or economic grievances are rarely notorious. 1 In upholding the law prohibiting night work for women, the New York court said: "The only chance for debate would be whether the prohibition is so wide and so universal that it can be said it is so out of proportion to the benefits sought that it is burdensome and unreasonable to a degree which transcends the discretion of the legislature." People v. Charles Schweinler Press, 214 N. Y. 395, 108 N. E. 639 (1915). 2 "Problems of the Police Power," Case and Comment, Vol. XX, 1913, P- 303- 478 PRINCIPLES OF LABOR LEGISLATION Conceivably this defect of judicial action might be overcome by new powers or facilities for independent inquiry placed at the disposal of the courts; but it is not likely that these will be resorted to if experience shows that the same function can be better performed by other organs. And the remedy appears to be coming from another direction. In an increasing number of cases important legislation is being prepared by commissions of inquiry composed of experts and having adequate resources for investigation at their command. The conclusions of such a commission will carry weight which un- fortunately has long ceased to attach to the mere fact of the enact- ment of a statute. The courts may of course still reject an act thus recommended; but the case of the workmen's compensation law of New York shows not merely with what unfeigned respect the work of such a commission will be commented on by a court, but also that public opinion will not be inclined to treat a decision adverse to its conclusions as final. A proper development of scientific methods of legislation will reduce the conflict between legislation and adjudica- tion to a minimum. A similar result may be expected from the growing legislative prac- tice of delegating in appropriate cases powers of quasi-legislative or quasi- judicial determination to administrative commissions. It is now generally conceded that no other form of railroad control is adequate or satisfactory, and the superseding of the Massachusetts advisory railroad commission for many years the model of its type by the mandatory commission act of the present year, marks the final victory of this phase of railroad legislation. Again, the estab- lishment of an industrial board in New York, likewise in the present year, and in pursuance of the recommendations of a notable com- mission, marks the adhesion of the leading state of the union to a similar method of labor legislation, first introduced in Wisconsin. And it is noteworthy that of the minimum wage laws enacted during the year only one does not pursue the commission plan. In proper hands and under proper safeguards the system of leaving to an administrative commission the development of principles laid down by the legislature in broad terms carries with it guaranties of reasonableness and impartiality which a political body can never afford. The system is based upon the theory that when once an agreement lias been reached regarding the principle of a measure, the development of that principle into detailed rules is a process determined by the logic of ascertained facts. It thus represents a separation of that which is matter of choice, or expediency, viz., the adoption of a policy, from that which is matter of argument and judgment; namely, the application of the policy to particular cir- cumstances. Viewed in this light the delegation constitutes not a ADMINISTRATION 479 violation, but a more perfect development of the principle of the separation of powers, and this should be borne in mind when the system is attacked as an unconstitutional delegation of the legisla- tive power. 1 In any event some such method of dealing with complex social and economic problems seems an almost indispensable corrective of the possible abuse of a police power extending to every interest that can be reached or affected by governmental action. (2) Representation oj Interests From what precedes it will be seen that the highest place in the American scheme of constitutional government is that occupied by investigation. But the investigations required are not merely those of experts, as seems often to be assumed when the term "scientific " legislation is used. The investiga- tions of experts, such as physicians, engineers, economists, statisticians, and lawyers, are likely to end in conclusions that may be ideally perfect from a technical point of view, but not reasonable from the constitutional point of view. They do not include all of the facts. The latter can be ascer- tained only through adding the experience and testimony of employers and employees those who are daily in contact with the facts, and whose common knowledge corrects the narrow knowledge of specialists. The public hearings re- quired by due process of law are the legal and constituted devices contrived to make sure that all sides will be heard. But these public hearings are formal, disputatious, indis- criminate, and indecisive. They do not offer the common man an equal opportunity with the lawyer or expert to get his common experience written into the conclusions. The commission is not bound in any direct way by what was offered at the public hearing. The latter becomes a formality and a mere technical compliance with the constitutional re- quirement of "due process." The officials withdraw and formulate their own rules as they please. This is the essence of bureaucracy. It is often charged 1 The laws which were invalidated by the decisions cited in "One Day of Rest in Seven," p. 281, and "Lighting, Heating, and Ventilation," p. 363, were not of this class. They made no provision for investigation and ascertaining of facts, but merely stated that certain action might be takrn by the commissioner of labor "in his discretion" or if "it appears" to him that certain results could be obtained. 4 8o PRINCIPLES OF LABOR LEGISLATION that the efficient methods of administration employed in lead- ing European countries are not adapted to American de- mocracy because they are "bureaucratic." But American officials, as a rule, are more truly bureaucratic than those of Europe. It is not rotation in office that cures bureaucracy. The most democratic of Americans become bureaucrats as soon as installed in office. Bureaucracy is just the ordinary human instinct for exclusive possession of power. Its es- sence consists in imposing its will upon others without really consulting them. Whether the office-holder is an expert, a democrat, or a politician, makes little difference. It seems easier to reach a decision in one's mind and then to force others to obey than to submit to the criticism or to profit by the advice of those who are not officials. The situation is different in a legislature where each mem- ber is compelled to listen to his opponents as well as his partisans, and to modify his individual opinion in order to get a majority opinion. A similar arrangement is called for in the administration of labor law. Here the conflict of in- terest is often more intense than it is in a legislature, rising at times to the pitch of incipient civil war. It is not sur- prising, therefore, that, in many states and countries, the officials who administer labor law are required to submit their investigations and proposals, before action, to the represen- tatives of employers and employees. These representatives owe allegiance, not to the government officials, but to the interests which select them. Wherever these interests are organized into employers' associations and trade unions, there the representatives may be elected or designated and recalled in some way by the organizations. In some cases these representatives have an actual veto on the proposals of the officials ; in others they are more or less advisory, but entitled to participate in the official deliberations. In France, Belgium, Italy, Germany, and Austria a large part of the labor law is administered in this way. There may be a national superior council of labor, as in Belgium, France, Switzerland, Italy, Norway, and other countries, nominated in such a way as to represent employers, unions, and the general public. Then there are inferior councils in districts or cities. These councils take part in drafting legislation, ADMINISTRATION 481 formulating decrees and administrative rules, conducting in- vestigations, and supervising the collection of statistics on all subjects connected with labor. The administration of public employment offices is more and more conducted by joint com- mittees of employers and employees, going so far in Denmark as to include the joint selection of subordinate officials. The Industrial Council of Great Britain is a large representative body of employers and trade unionists selected to assist the ministry of labor in matters of mediation and conciliation. The industrial courts of France, Germany, and other countries, composed of employers and employees, take the place of or- dinary minor courts of law in disputes, whether individual or collective, growing out of wage bargains. In Germany and Austria the administration of social insurance is entrusted in various ways to organizations of employers and employees. A complete list of these arrangements, adopted during the past twenty years, would show that every branch of labor legislation is Coming t^ b Q ^Hmi'nigfprp.r! on tViP pn'npjpfa of of In American states the substitution of administrative rules for legislative details makes it possible to adopt similar repre- sentation of interests. If the legislature lays down the gen- eral rule that every place of employment shall be made "safe" it naturally follows that those who can best pass upon the safety devices and processes, as to whether they are prac- tical, in addition to being scientific, are the employers and em- ployees who must install and use them. In the four or five states which have adopted the principle of administrative investigations these joint committees actually draw up the rules for safety and health, assisted by the staff of the commis- sion and the various classes of experts who may be called in. In Wisconsin, for example, there is a general committee named by the Merchants' and Manufacturers' Association and the state Federation of Labor. Under this general committee are subcommittees on boiler rules, elevator rules, shop lighting, ventilation, wood working, and other specialties. These com- mittees visit the factories, try out all devices by extensive tests, and, when they have finally agreed upon a recommenda- tion, it is adopted by the commission and issued as an order without change. 31 482 PRINCIPLES OF LABOR LEGISLATION Thus there are two kinds of publicity, the public hearing usually required by the formalities of due process of law, and the representative publicity participated in by the chosen agents of the interests. The latter is the more effective, because it is carried on with experiments and tests, over a period of time, by those whose personal interests and knowledge are keen. It is a process of cooperative investigation. And when an in- vestigation of this kind is completed it fulfils all the constitu- tional requirements of "reasonableness." It includes all of the facts, because it is conducted by those whose interests are opposite on some points and common in others. It gives "due weight" to the interests of employer and employee, and thus conforms to the "equal protection of the laws." Furthermore, a rule thus agreed upon has the backing of the representative employers of the state, and their approval carries such weight in court that other employers, who would ordinarily violate the laws-enacted by a legislature, do not violate the administra- tive rules approved in joint conference. What is true of safety is also true in a greater or less degree of all branches of labor legislation where administrative rules can be substituted for legislative statutes. As we have seen, this is possible in minimum wage laws, hours of labor, excluded employments, public and private employment offices, and workmen's compensation. In some of these branches the op- position of interests is less reconcilable than it is in others, and there the commission itself must exercise greater authority. For the representative committees are, after all, only advisory. They have no legal power, no veto, on the commission. The rules and orders that carry penalties are the commission's rules and orders, and not those of the representatives. But, while the committees are advisory, the legislature may make it mandatory upon the commission to consult them. In view of the fact that the bureaucratic impulses of officials stand in the way of such consultation where it is optional, this man- datory provision is necessary. The industrial commission law of New York, enacted in 1915, has taken this further step in the recognition of representatives. It requires the commission to submit its proposals and investigations to an "industrial council" of representative employers and employees, for their advice. Minimum wage laws are similar and require investi- ADMINISTRATION 483 gation by wage boards composed of employers and employees of the district. The economic principle underlying this representation of in- terests is the well-known fact that competition tends to drag down all employers to the level of the worst. But labor legis- lation is designed to bring the worst employers up to the level of the best. Yet it cannot be expected that legislation will ever be able fully to accomplish this. Individuals here, as elsewhere, will always be ahead of what the state can do. With each rise in the level of standards required by the legis- lature, individual employers will be free to rise still higher. Here is exactly where the field of administration lies. An industrial commission, with representation of interests, can do what the legislature cannot do. If it is given leeway in drafting rules and regulations, it can call upon the more ad- vanced employers and the representatives of labor to assist in setting higher standards, and it can then enforce these standards on the more backward ones. It can bring out the divisions that already exist among employers, and, instead of permitting the worst to set the standards for the best, it can assist the best in setting standards for the worst. The legis- lative method treats all employers alike as criminals, and forces all to 'combine and to support the same lobbyists, in order to resist what they consider destructive laws. The ad- ministrative method permits the leading representatives of employers to consult with the representatives of labor and with the commissioners who represent the state, regarding all of the details necessary to carry the law into effect and to ad- just it to all conditions. The method is practically that of the voluntary joint conference of collective bargaining in which a trade agreement between an employers' association and a union is drawn up. Neither the union, the employer, nor the politician dominates. The decisions are not hastily adopted by a majority vote, but are given sufficient consideration, ac- companied by thorough investigation and complete publicity. The process is educational and cooperative, rather than argu- mentative and coercive. It is riot the struggle of two lobbies to win over a committee or a legislature, but it is a substitute for the lobbies, sitting in continuous conference, under state supervision, working out the rules and regulations which 484 PRINCIPLES OF LABOR LEGISLATION give effect to the legislature's standards of industrial wel- fare. This representation of organized interests in the adminis- tration of law is peculiarly fitted to bridge the gaps caused by our constitutional separation of the branches of government. In other parliamentary countries the heads of executive de- partments, such as cabinet officers and ministers of labor, are also members of the legislature. Any member of the legisla- ture, or the opposition parties in the legislature, can call them to account, on the floor of the house and before the audience of the people, for their methods of administration. A hostile vote can dismiss them from office. Thus their acts are scrutinized and their responsibility is enforced. But in the American system the "minister of labor" is the "commissioner of labor," the "state factory inspector," or the "Secretary of Labor." In theory he is responsible, but in practice the machinery is lacking to enforce responsibility. Those who are most concerned in holding him responsible are not "the public" at large, but the employers and employees who must obey the laws which he enforces. At the same time they have no voice, no representation, that is theirs as a matter of right and law. They can only exert themselves through the devious ways of "politics" and lobbyists. For this reason, in American states and the federal govern- ment, it has been necessary to create "commissions," where in foreign countries the same duties would be entrusted to political departments. The Interstate Commerce Com- mission, the Federal Trade Commission, the Federal Reserve Board, the public utility commissions of the states, are fourth branches of government, separated from the other branches and performing duties which in other countries are under a cabinet officer, such as the chancellor of the exchequer, or the minister of commerce and industry, who has a seat in parlia- ment. A leading object, in all of these American cases, is to take the question "out of politics " that is, out of the partisan contests that go on in the legislature. This would probably not be necessary if the chief executive officer having them in charge were a member of the legislature, as in parliamentary countries, liable to be dismissed if he and his colleagues fail ^ to get a majority vote in the legislature. ADMINISTRATION 485 The situation is even more serious in dealing with labor legislation. Here, the conflict of classes is more menacing to peace than it is in matters of railroads, trusts, and banks. The labor question, of course, cannot and should not be taken out of the legislature. It is always a question of politics that is, of public policy as to what shall be the standards and what laws shall be enacted. But the industrial commission takes out of the legislature the intricate details of investigation, after the standards have been enacted into law. And, most important of all, it permits the creation of an inferior industrial legislature, composed of the real representatives and leaders of both interests, continually in session under state supervision, and working upon those details of administration which, after all, are the actual substance of such legislation as is enforced. Of course, various problems arise in the constitution of these representative councils. One is the representation of unorganized workers. As yet, no device has been discovered by which they can be directly represented. It may be said, perhaps, that they are partly represented by employers who need them to offset the unions, partly by the unions, many of whose demands would benefit both organized and unorganized labor, and partly by the commission which represents the public. Another problem is the compensation and expenses of the representatives. If they are compensated by the state their allegiance to their organizations is weakened. One of the dis- asters of trade unionism is the ambition of its own members for political jobs and salaries. To be truly representative, the representative must depend on his 'organization for his com- pensation and expenses. It follows, in the case of unions, if the state does not pay salaries or expenses, that the in- dividuals named on the representative councils are usually the salaried officials and business agents of the union. These are their representatives already chosen for the purpose of dealing with employers, and it is but a short step from dealing with employers in private bargain^ to_ dealing with them on governmental bodies. In all cases it is found by experience that the representatives on either side should not be lawyers. The object is not to win a case in court, but to reach an agree- ment by conference. Neither should the employers' repre- 4 86 PRINCIPLES OF LABOR LEGISLATION sentatives come from the financial or commercial side of the business. They should be the men in charge of production, who have grown up in the industry and know the labor con- ditions. The amount of time required is not so great as to prevent attendance. The investigations are made by a staff continuously employed and are then laid before the representa- tives, and their familiarity with the business enables them immediately to pick out the weak spots. These are referred back for further investigation, so that the various brief meet- ings of the representative council are enough to accomplish the purpose. Such investigations are not hastily made, as they are in the case of legislatures in session. The conferences are not required to act within a limited time, and if they can- not cover the whole ground they cover a part of it and wait for future investigations to make the necessary amendments. The representatives do not need to be officials with govern- mental powers to enter factories, but they must have a staff in which they have confidence. This is the problem of civil service. (j) Civil Service We have already seen how the administration of labor laws has required the building up of a special police. This was an advance over the enforcement of law by general officers, but it brought many difficulties. It created salaried positions, which political parties seized upon for political purposes, and a mere ostensible enforcement of the law. Even more serious than party politics was the struggle of employers and em- ployees to get control of these offices. The trade unions claimed the right of appointment, because largely through their efforts the positions had been created, and because they considered that the laws would not be enforced except by friendly . inspectors. The result has been that > in many states, the unions themselves have been split by internal politics over the personal candidacies of their members for the positions. The unions also have been compelled to make alliances or compromises with the political parties, and thus has resulted the " labor politician" selected, not to enforce the law effectively, but to get the "labor vote." On the other hand, the employers also make their political alliances, an I ADMINISTRATION 487 then the selection of factory inspectors is often designedly made to prevent the enforcement of the laws. Thus both political and industrial partisanship have joined, either to defeat alto- gether the factory laws through hostile inspectors, or to make them ineffective through political trade union inspectors. The next step is the effort, made in a few states and by the federal government, to adopt civil service examinations, ten- ure of office on good behavior, and promotion in the service, as a substitute for political appointments. These civil ser- vice laws, beginning in the decade of the 'eighties, were de- signed primarily to prevent the use of public offices as a part of the political "machine." Indirectly they have secured greater efficiency, in so far as they have been able to prevent officials from being changed at each change in the elections. But it has required several years for the more experienced civil service commissions to reach the point where they could learn to conduct examinations directly for efficiency and for the peculiar fitness of the applicant for the particular position. This point has not even yet been reached in the case of ap- plicants who may be called upon to enforce the labor laws. Here industrial antagonism rn^i^ been recognized, just as politi- cal antagonism has been recognized and provided against. Factory inspectors, who do not have the confidence of both employers and employees, either as to their practical knowl- edge or their impartiality, are as inefficient for th^ir positions as those who are avowed politicians. And this distrust of civil service appointees by both manufacturers and workmen is so general and deep that it is almost as difficult to get their ap- proval of "civil service reform" as it is to get the approval of the politicians. Just as civil service reform is designed to secure officials who are non-partisan as respects political an- tagonism, so it should secure factory inspectors who are im- partial as respects industrial antagonism. It is in the legis- latures and Congress that organized labor and organized capital should fight out their legal battles. There it is proper that each side should have its lobbies and its recognized lead- ers, and should carry its fight "to a finish." It is there that public policy is determined and that opinions, partisanship, and prejudice have full play in working out that legislative discretion which constitutes public policy. But when thq 4 88 PRINCIPLES OF LABOR LEGISLATION law is once enacted the battle should cease, and the officials selected to enforce the law should enforce it efficiently, exactly as it stands, in harmony with its policy, and yet impartially as between the two interests. This is the present problem of "civil service reform" as respects labor legislation. Labor law cannot be enforced if either employers or trade unionists distrust the officials, on account of either their incompetency, their politics, or their partiality. Even in states having civil service commissions this distrust continues to exist. This is partly due to the bureaucratic exclusiveness of the com- missions themselves. An essential thing in their method of administration is that they should admit the recognized lead- ers of employers and unions to a share in conducting the examinations. This is partly provided for in the industrial commission law of New York, which makes the representative council of employers and employees the assistants to the civil service commission for the examination of applicants. It is provided for in the free employment offices of Wisconsin and of Denmark, where the employment officials are selected by the joint committees of employers and employees. It has been implied above that the inspectors under an in- dustrial commission become investigators as well as police. They cooperate with the employers and workmen in drafting the rules. Their work consists more of instructing employers and workmen in the devices and processes of safety, sanita- tion, and welfare than in mere prosecutions. But they can occupy this enviable position only to the extent that they are skilful, efficient, and impartial. "Politics" is fatal. As soon as organized employers and employees have become accus- tomed to cooperate in the administration they tend to exclude the politician, because he drives capital and labor apart in- stead of bringing them together. (4) Bill Drafting The history of labor legislation is the history of an art as highly technical and expert as that of engineering science or that of an inventor in electricity or chemistry. Like other arts, it is a history of trial, experiment, failure, until some- thing workable is produced. In early days an inventor might ADMINISTRATION 489 be merely an ingenious mechanic. Now he is frequently a scientist, with a staff of assistants, supported and financed by large expenditures of money. Great private corporations keep ahead of competition by means of their laboratories, scientists, investigators, inventors. When the government takes up invention, as it has done in agriculture, it supports costly experiment stations and sets scientists and inventors to work. Yet in the equally technical field of legislation the drafting of bills remains largely in the stage of the mechanic. There are two very distinct divisions in the process of legislation. One is the discussion of policy, the other the framing of bills that give effect to policy. The former is the division belong- ing to the legislature, drawn from the ranks of the people, The latter is the technical work of experts. In a private cor- poration the line of demarcation corresponds to that between the board of directors and the engineers, architects, or lawyers. In lawmakmg it corresponds to that between the legislature and an administrative commission. The latter is conducting experiments in a great laboratory. The enforcement of law is, in fact, a series of experiments and tests upon the actual workings of the law. The commission's investigations reveal the gaps and defects. When the legislature meets, these tests and investigations furnish the technical information for amendments. The commission, indeed, when it drafts its own rules and orders, is doing the same kind of technical work as when it assists the legislature in drafting its bills. But administrative commissions are like the courts in that they follow precedents, and are conservative in that they do not willingly take up new things. Their administrative prob- lems are sufficiently great, so that they will not of their own volition initiate and push new lines of public policy. Their work is the perfection and elaboration of policies already adopted. The business of pioneering new lines of labor policy belongs to the legislature and to private associations, or to a legislative reference bureau or a political department of labor. But when there is sufficient public opinion, and a legislative de- mand for these new lines of legislation, then administrative investigation is superior to any that has been devised for 49 o PRINCIPLES OF LABOR LEGISLATION ascertaining the facts and preparing machinery for adminis- tration. It follows that private societies, such as labor unions, associations for labor legislation, child labor committees, and consumers' leagues, are needed not only to watch the existing administrative machinery, but to pioneer on new lines of legis- lation. The functions of such private associations are even greater than they have been before. They criticize where needed and assist where practicable. (5) Penalties and Prosecutions Behind all laws and administrative rules having the force of law lies the penalty for violation. No matter how efficient the administration or how actively employers and employees may assist, the administration would remain but a voluntary cooperative society if not supported by penalties imposed on those who refuse or neglect to assist. Yet too much reliance is generally placed on penalties and punishment. Officials sometimes point to their record of numerous prosecutions as evidence of their efficiency in office. Such a record may prove exactly the opposite. Penalties should be looked upon as only a potential power, whose strongest evidence of actual power is sometimes found in the least necessity of resorting to them. A record of a small number of prompt and impressive convictions may mean more for the enforcement of law than several pages of statis- tics of prosecutions. At the other extreme, many factory inspectors who in American states furnish little or no evidence of any prosecutions are probably not enforcing the laws. 1 No subject of labor legislation is more uncertain and unsatis- factory than this of penalties and prosecutions. The difficulty in securing convictions is shown by a state- ment of the commissioner of labor in New York in ipo8. 2 1 The Report on Condition of Woman and Child Wage-Earners in the United States, Vol. XIX, 1912 (6ist Congress, 2d Session, Senate Doc. No. 645); pp. 23-88, gives results of the most extensive effort yet made to in- vestigate the subject of prosecutions. See also American Labor Legislation Review, June, 1917, "Labor Law Administration in New York," pp. 484- 504- 2 Report on Condition of Woman and Child Wage-Earners in the United States (6ist Congress, 2d Session, Senate Doc. No. 645), p. 44. ADMINISTRATION 49 1 In thirty-two cases of illegal employment and overtime work of women and children tried before juries in a period of three months not a single conviction was obtained, although it was shown in one instance that a woman worked seventeen hours in one day and in another that a child was only seven years old. The inspector's report for 1907 showed that in one-half of the 294 cases where conviction was secured the court re- mitted the fine, and in most of the other cases only the mini- mum fine was imposed, averaging about $26 a case. 1 Other states show a similar leniency. In American labor legislation, little attention has been paid to the careful adjustment of penalties to offenses. The amount of penalty seems to be determined very largely at random, and there is a great variety of penalties in the same state and in different states. Too frequently the idea seems to be that the more severe the penalty the greater the likeli- hood of enforcing compliance. This frequently fails of its purpose, because courts and juries often permit an offender to escape entirely rather than subject him to a penalty out of proportion, as they see it, to the offense. Yet a distinction must be made between penalties for a single offense and penalties for a continuing offense. Failure to return a child worker's employment permit may be treated as a single offense ; but employment of the child beyond work- ing hours may be treated as a continuing offense, repeated every day that the child is so employed. Here is a cumula- tive injury to the child which the law seeks to prevent, and, very properly, a cumulative penalty might be imposed, mak- ing each day for each child a separate and distinct offense. If the penalty, for example, is $10 to $100 for each offense, even the minimum penalty would accumulate effectively. Otherwise, if treated as a single offense for each child, no mat- ter how long continued, the penalty might bear no adequate proportion to the profit derived from the child's labor. This method of cumulative penalties has been more or less adopted in the industrial commission laws of several states, thereby making each day during which an employer fails to observe or comply with any order of the commission or any 1 Report on Condition of Woman and Child Wage-Earners in the United States (6ist Congress, 2d Session, Senate Doc. No. 645), p. 48. 492 PRINCIPLES OF LABOR LEGISLATION section of the statute a separate violation. 1 Cumulative pen- alty provisions, however, are construed very strictly by the courts, and the language of the statute must be made perfectly clear. Another distinction of importance is that between a crimi- nal action and a civil action. Formerly, when employers were mostly small employers with but little property, the criminal penalties of fine or imprisonment, which are the ordinary penalties for violation of police regulations, seemed to be ap- propriate. But these criminal penalties are practically out of date when it comes to enforcing the law against corpora- tions. Moreover, in criminal prosecutions the individual em- ployer has many technical defenses based on the presumption of innocence. A readier and simpler method is the "action of debt," a civil action employed to recover taxes or penalties under the guise of a debt owing the state. 2 This form of action is now generally adopted in the case of railroad com- missions and industrial commissions, along with the cumula- tive penalty. It is more effective against corporations, and it recognizes the cold fact that courts and juries are loath to impose criminal penalties on employers when their offense is the violation of laws enacted for the protection of labor. Prosecutions are generally brought in justice courts or other inferior criminal courts. It is obvious that such courts are not equipped to decide technical questions, and the limita- tions imposed by rules of evidence on the admissibility of testimony make it practically impossible for the court to ob- tain the expert information and opinion essential to intelligent decision of such cases. There are two classes of questions, often equally technical. One is the question of fact, the other of constitutionality of a statute or of reasonableness and validity of an administra- tive rule. A technical question of fact is, for example, whether a certain room is sufficiently ventilated or sufficiently lighted. A question of constitutionality or reasonableness is whether 1 Wisconsin, Laws 1911, Sees. 2394-60; Ohio, Laws 1913, Sees. 871-44; Colorado, Laws 1915, C. 180, Sees. 44, 45. 2 Stockwell v. U. S., 13 Wall. 531 (1871); Chaffee v. U. S. f 18 Wall. 516 (1873): Florida Central R. Co. v. Reynolds, 183 U. S. 471, 22 Sup. Ct. ADMINISTRATION 493 a statute or administrative rule limiting a woman's work to a certain number of hours is valid. Both involve questions of fact, but the two questions can be separated. If a justice's court, or a jury, as in the instance above referred to, refuses to convict an employer who is shown to have allowed a woman to work seventeen hours in face of a law restricting her work to ten hours, it is really deciding not only the fact of violation, but also the reasonableness of the law. Hence it is that in states which have industrial commissions with power to issue rules the attempt is made to separate the two questions. The question of fact is determined in a lower court. But the question of reasonableness or validity can be raised only in a different suit in a higher court. The employer is permitted first, by the provisions of the law, to test the reasonableness or validity of the rule in a hearing before the commission. Next he has a right of appeal to a higher court on questions of law. If no such hearing or appeal is taken within a specified time, then no question can be raised in the inferior court except the fact of compliance or non-compliance with the rule or order of the commission. 1 A similar facility is afforded to the inferior court, in passing upon questions of fact, by the provision that the commission may draw up specific standards fitted to each occupation, or even to a single shop, where the legislative standard is liable not to take into account real differences. These standards, if previously passed upon by representative committees of employers and employees, can be made both definite and prac- ticable, and therefore not a matter of such controversy or opinion as to require expert testimony in the lower court. This simplifies the work of the factory inspector in the field. He is the prosecuting witness. His opinion of whether the law is violated or not is set up against the opinion of the employer or his representative. All doubts are resolved in favor of the defendant. But with the more precise standards set by a commission there is less dependence on weight of opinion. If a statute merely says that workshops shall be "sufficiently lighted," the factory inspector must set up his opinion against the employer's opinion as to whether the light in his shop is sufficient. The jury must then pass upon both 1 See Wisconsin, Laws 1911, Sees. 2394-57, 2394-59. 494 PRINCIPLES OF LABOR LEGISLATION the fact of violation and the opinion of the inspector. But if the commission upon investigation ascertains that one-quarter candle-power for every square foot of floor space is sufficient for that class of shops, then the inspector needs to prove only that the amount of light was less than this standard. These provisions do not mean that less competent inspectors may be employed. They mean that much more time may be given to actual inspection and less to prosecutions. The in- spector, in the ordinary prosecutions, wastes an incalculable amount of time in assembling and producing in court the evi- dence of the alleged violation. His current inspection work must be neglected in order that he may attend court, await- ing the trial of the case, or attempting to convince a court or jury of the accuracy and honesty of his observation of con- ditions out of which the alleged violation grew. Where he should be engaged in discovering violations and suggesting means of compliance, he is marshaling evidence and trying to convince third parties of deviations from ambiguous standards. An interesting method of enforcing compliance, which is more and more coming into prominence, is to give the au- thorities power to stop work on a machine or in an establish- ment which violates the law. Thus in several states inspectors may place upon machinery a notice forbidding its use until specified safety measures have been taken. In some states mines may be absolutely closed, and in 1915 legislation in Montana and in Delaware extended the same principle to certain factories and workshops. According to the Delaware statute, a cannery violating the law may upon a third con- viction be closed by the court, and the person convicted may be prohibited from engaging in the cannery business until further court order. California, also, in 1915 authorized the closing by the courts of labor camps, upon their failure to comply within reasonable time with the sanitary provisions laid down for them. Various devices have been invented in the drafting of labor laws to determine whether the provisions of the law are being complied with. The possibility of detecting all violations by official inspection are obviously limited. An army of in- spectors making constant visits would be required. The pros- ADMINISTRATION 495 ecution may be relieved of a portion of its burden of proof by a provision that certain facts shall constitute prima facie evidence. The burden is always on the prosecution to prove circumstances which constitute a violation of a statutory pro- vision. Thus where a statute forbids the employment of children under sixteen except under specified conditions, the prosecution for an alleged offense must prove the employ- ment of the child, must prove that the child was under six- teen, and must prove that the circumstances authorizing the employment of a child of that age were not present. This ordinary rule respecting the burden of proof may, however, be altered by the legislature. The difficulty of enforcing the one day of rest in seven law l has been considerably lessened in New York by a requirement that the employer shall post "a schedule containing a list of his employees who are required or allowed to work on Sunday and designating the day of rest for each," and shall file a copy of such schedule with the industrial commission. This provision reduces the necessity of inspection to the single question whether any employee named on the schedule as entitled to rest on any day is at work on that day. That in itself constitutes a violation of the substantive provision that "no employee shall be required or allowed to. work on the day of rest so designated for him." Similar provisions are employed in enforcing laws regulating hours of labor. 2 The New York law regulating the employ- ment of children under the age of sixteen requires the em- ployer of such children to keep a record of the name, birth- place, age, and residence of such children and to produce such record for inspection by the agents of the industrial commission. The employer is also required to keep on file and to furnish on demand of the commission the child's em- ployment certificate. If he cannot furnish the certificate of employment, the employer is required within a specified time to produce satisfactory evidence that the child is over six- teen, or to discontinue his employment. Proof of the com- mission's demand for evidence of the age of the child and of the employer's failure to produce such evidence is made prima facie evidence in a prosecution for the violation of a provision 1 See "One Day of Rest in Seven," p. 278. 2 See "Maximum Hours, Women," p. 241. 49 6 PRINCIPLES OF LABOR LEGISLATION of the law that the child is under sixteen and unlawfully employed. 1 Of the devices to assist the officials which have been made use of in this country, those which impose upon the employer the duty to keep some sort of current record of conditions or happenings in his plant are the most important aids to official inspection. Records of accidents, certified daily time reports, registers, and account books are frequently required by labor laws. There is, however, a limitation on the extent to which the employer can be compelled to collect and record for official use the evidence of his own violation of the law. Our con- stitutions generally protect the individual against a require- ment that he testify against himself. When the requirement of records becomes practically a system of compelling testi- mony against himself, the employer may refuse to comply and depend upon his constitutional guaranty. Licensing a business practice or place of employment affords another means of increasing the possibilities of enforcement, especially if the licensee be required to give bond. This method is employed in the regulation of employment offices and sweat- shops. License requirements are ordinarily supplemented by a prohibition of action without the license. Failure to pro- duce the license is thereby made proof of violation. The license is usually issued on condition that the standards im- posed by the law be complied with. 2 Fear of loss of the license and of summary recovery on the bond affords strong induce- ment for compliance. The license, however, does not entirely obviate the necessity for inspection or other means of obtain- 1 New York, Consolidated Laws, 1909, .31, Sec. 76. 2 Examples of such laws applied to employment offices are found in California, Code, 1906, Sec. 3580; Colorado, Laws 1909, C. 164; Massa- chusetts, Revised Laws 1902, C. 102, Sec. 23; Minnesota, Laws 1905, C. 274. Tenement - house manufactures must be licensed in Indiana, Annotated Statutes 1901, Sec. 7o87n; Maryland, Public General Laws 1911, Art. XXVII, Sec. 240; Massachusetts, Laws 1909, Sec. 106; Michigan, Laws 1909, No. 285, Sec. 22; New Jersey, Compiled Statutes 1910, Sec. 46; New York, Laws 1913, C. 260; Pennsylvania, Brightly's Digest, 1893-1903, p. 825, Sec. I. A similar idea is expressed in the "sanitary certificate" required for bakeries and establishments manu- facturing food in some states, for example, New York, Laws 1913, C. 463; Washington, Codes and Statutes, 1910, Sec. 5487. ADMINISTRATION 497 ing evidence as to compliance by the licensee with the require- ments of the law or the conditions of the license. In the effort to secure enforcement of laws prohibiting or regulating sweatshops, resort has been had to the device of tagging the products of sweatshops. 1 In some cases the value of the tag is not due so much to the fact that it aids en- forcement of provisions regulating the sweatshop industries as to the discouragement of that industry by branding its products and discouraging their purchase by the public. After the evidence of violation of the requirements of the law is secured, the marshaling and presentation of that evi- dence to the court in which a prosecution is conducted is of the greatest importance. Ordinarily, it is the business of the district attorney or the attorney-general to conduct prosecu- tions. The department, however, which administers the law violated is under obligation to secure the evidence of vio- lation and present it to the prosecuting officer. In practice, other duties so absorb the time and attention of the attorney- general and the district attorney that they give little considera- tion to the preparation of prosecutions for violation of police regulations. The rules of evidence, especially in criminal prosecutions, are very technical. It is difficult even for a lawyer to determine what is relevant testimony. It frequently happens that a factory inspector, without legal training or sympathetic legal advice, bases a prosecution on testimony which, because of technical rules, will not be admitted by the courts, and therefore the prosecution falls. This need of sym- pathetic, constant legal assistance to administrative officials in securing and furnishing the evidence of violation has resulted, in many jurisdictions, in the assignment of a special assistant attorney-general, district attorney or city counsel to attend to prosecutions for violations of laws enforced by a particular administrative department. An assistant to the corporation counsel in New York City devotes his entire time to advising the tenement house department and prosecuting violations of the tenement house law. In New York, instead of having a special deputy attorney-general assigned to the industrial com- mission, the legislature provided for a counsel and three as- sistants whose duty it is to assist in the preparation of prosecu- 1 New York, Laws 1913, C, 260. 498 PRINCIPLES OF LABOR LEGISLATION tions and in the conduct of such prosecutions in the courts. By arrangements with district attorneys, counsel to the com- mission actually conducts the prosecutions in the criminal courts, but he does this subject to the control of the district attorney. (6) Cooperation by Pressure Penalties and prosecutions are coercive methods of adminis- tration. But the workmen's compensation laws adopted in several states indicate a new and important administrative principle. Prior to the adoption of these laws, the only in- ducements offered to the employer to prevent accidents to his employees were the liability laws and the factory acts. The employer was treated as a criminal, and naturally he revolted and obeyed only as little of the laws as he might be exposed to on account of his lack of political influence or the in- efficiency of inspectors. But the compensation laws, by requiring him to pay for all accidents, instead of merely those he cannot escape, tend to bring upon him a universal pecuniary pressure, like that of taxation, which induces him to prevent all accidents and to provide for early recovery of the victims. This is especially true if the law is so drafted as to lay the emphasis on prevention and medical and surgical treatment. This class of legislation is cooperative, instead of coercive. The employer now takes as much interest as the employee in having the factory inspectors efficient and helpful. Further- more, he establishes his own "safety department," which is always watchful and far more efficient than the small number of state inspectors that the taxpayers will allow. In this way "social insurance" in its many forms of accident, health, invalidity, old age, and unemployment insurance, may be ex- pected, if the laws are properly drafted and then properly ad- ministered, to bring about the cooperation of employer, em- ployee, and the state, where the older methods of coercion were ineffective and productive of antagonism. The insurance principle also provides an inducement for employers and employees to give sufficient of their time to the administration of labor law. This is the peculiar need and weakness of American administration. Private citizens leave administration to professional politicians. Employers hire ADMINISTRATION 499 attorneys to represent them in legislation. A kind of con- stant pressure is needed that will induce them to take part themselves in public administration exactly as they do in the administration of their factories. Financial gain or loss is this universal pressure, not depending on exhortation or pub- lic spirit. Social insurance, properly organized and admin- istered under the supervision of those who pay the bills, con- verts the prevention of accidents and the preservation of health from sentiment and humanitarianism into business and profits. It makes it worth while for employers to give time to public service. Thus social insurance accomplishes what, in France, is called solidarism, as a correction of individualism. 1 The health and welfare of every wage-earner is "affected by a public interest" when the industry or the community is re- quired to make good the loss. Each laborer then becomes a ''public utility." Individualism, While it highly rewards the fortunate individual, carries with it the sole responsibility and liability for his own misfortunes. The solidarism of social insurance enforces the joint responsibility of employer, em- ployee, and the community. But social insurance is an administrative rather than a judicial problem. It takes the question of individual liability out of the hands of the courts and places it in the hands of executives. It avoids litigation over past misfortunes and substitutes "social prevention" of future misfortunes. For this reason, the administrative officials of the state cannot successfully deal with social insurance except through the co- operation of employers and employees, and the latter will not effectually cooperate except through the inducement of financial gain. Hence it is that well-considered schemes of social insurance distribute the burden of expense between employer, employee, and the state. This is plain in the form of health insurance, where the employee contributes a share of the insurance premiums. It may also be brought about in non-contributory schemes of accident compensation, where, in place of denying the employee any compensation at all in case of "wilful misconduct," his compensation is reduced, say, 1 Le~on Bourgeois, "International Organization of Social Policies," American Labor Legislation Review, March, 1914, p. 186. 500 PRINCIPLES OF LABOR LEGISLATION 10 or 15 per cent. This minimizes contests in court over "wilful misconduct," but at the same time forces the work- man to contribute when he is plainly responsible. This and other devices illustrate the differences between legislation with its court procedure, which penalizes the in- dividual for past acts, and administration based on insurance which induces him to avoid future acts. The matter resolves itself into a series of adjustments which balance the motive of pecuniary gain or loss against the carelessness, greed, or oppression that produces misfortune and suffering. These nice adjustments can be worked out only through the ac- cumulated tests and trials of administrative investigations, where employers, employees, and officials join together, and not through partisan conflicts in legislatures or legal battles in court. Thus "solidarism" is that goal of labor legislation where ^LTP" bf. trHy gfl-id t.Viftt "anTnjury to one is the concern of Jill*" On the financial side it is such an arrangement that all will equitably bear the burdens that fall upon each individual,. On the side of human motives it is a departure from litigation and the fear of occasional criminal penalties to the adoption of continuous inducements for the prevention of misfortune and oppression* On the side of administration it is the co- operative investigation of conditions by employers, employees, and the state through representatives and officials in whose ability and integrity all have confidence. On the side of a broader social philosophy it is the recognition both of class struggle and common interest as permanent facts, and then the adjustment of laws and administration so as to equalize the struggle and utilize the common interest for a public benefit. , SELECT CRITICAL BIBLIOGRAPHY In preparing the following select critical bibliography, ar- ranged by chapters, an effort has been made to bring together only the most helpful and the most accessible works on labor legislation. I. THE BASIS OF LABOR LAW American association for labor legislation. American labor leg- islation review. Quarterly ,1911- One issue each year summarizes new labor legislation enacted by Congress and by the several states. Andrews, J. deWitt. American law, a commentary on the juris- prudence, constitution, and laws of the United States. Chicago, Callaghan, 1908. 2 v. "Constructed in accordance with the institutional or analytical method, with the object of producing an elementary treatise possessing as much of the prac- tical as is possible within the space de- vpted to the work." Intended to pro- vide a classification that will fit American conditions. Andrews, John B. Labor prob- lems and labor legislation. New York, American association for labor legislation, 1919. 138 p. Brief popular treatment, heavily illus- trated. Chapman, Sydney J. Work and wages; in continuation of Earl Brassey's "Work and wages" and "Foreign work and English wages." Part III, "Social bet- terment." London, Longmans, Green, 1914. viii, 382 p. Beginning with the foundations of sociaf reform, the author discusses such questions as industrial training, home work, woman's labor. Clark, Lindley D. The law of the employment of labor. New York, Macmillan, 1911. xiv, 373 p. Deals with the principles underlying the common law and legislation as far as these affect the relation between em- ployer and employee. Written from a legal standpoint. Appendix, giving a code of the common law affecting employment. Coman, Katharine. The indus- trial history of the United States. New York, Macmillan, 1912. xi, 461 p. Sketches the industrial, commercial, and financial development of the nation from colonial times till the present day and ends with two chapters on con- temporary problems and conservation. Commons, John R. Industrial goodwill. New York, McGraw- Hill, 1919. 213 p. Treats of labor legislation as supple- menting goodwill by raising the general level of competition. Commons, John R.; Saposs, David J.; Summer, Helen L.; Mittelman, E. B.; Hoagland, H.E.; Andrews, John B.; Perl- man, Selig. History of labor in the United States. New York, Macmillan, 1918. 2v.; xxv, 623; xx, 620 p. Recounts by successive periods the efforts of American wage-earners to im- prove their conditions by trade union activity and through labor legislation. 502 PRINCIPLES OF LABOR LEGISLATION Ely, Richard T. Property and contract in their relations to the distribution of wealth. New York, Macmillan, 1914. 2 y. Gives a wide survey of the theories of property and contract held at different times; interprets cases on police power according to a progressive theory. Many references. Economic theory and labor legislation. (Proceedings Amer- ican association for labor legisla- tion, ist annual meeting, p. 10- 39.) lylach'son, Wis., 1908. Examines the attitude of the classical economists toward social reform. First presidential address of the American association for labor legislation. Fa rn am, Henry W. Some funda- mental distinctions in labor legis- lation. (Proceedings American association for labor legislation, 2d annual meeting, p. 29-42.) Madison, Wis., 1909. Discusses the different types of labor laws and the purposes for which they are jnd presic lerican , lation. enacted. Second presidential address of the American association for labor legis- Freund, Ernst. The police pow- er, public policy, and constitu- tional rights. Chicago, Callaghan, 1904. xiii, 819 p. A thorough and learned study of the police power in its various aspects. Goodnow, Frank J. Social re- form and the constitution. New York, Macmillan, 1911. xxi, 365 p. An attempt to determine how far the constitution is a bar to social progress; with a chapter on the attitude of the courts. Groat, George G. The attitude of^ American courts in labor cases. (Columbia university studies in history, economics, and public law, v. 42, no. 108.) New York, Longmans, Green, 1911. 400 p. Analysis and criticism of court deci- sions on trade unipn activities and pro- tective labor legislation. Hastings, William G. The de- velopment of law as illustrated by the decisions relating to the police power of the state. (Pro- ceedings of the American philo- sophical society, 1900, v. 39; 359- 554.) . Original and suggestive treatment. Hutchins, B. L. t and Harrison, Amy. A history of factory leg- islation. London, King, 1903. xviii, 372 p. History of factory legislation in Eng- land from the Elizabethan poor law to 1903. Preface by Sidney Webb. International labor office. Bul- letin of the international labor office. Jena, 1902-, Paris, 1902-, London, 1906-, monthly. Separate editions in English, French, and German give texts of labor laws and of administrative orders in all countries. Jevons, William Stanley. The state in relation to labor. Lon- don, Macmillan, 1882. 174 p. An effort to define the extent to which protective labor legislation and laws establishing the rights of trade unions may be carried in a laissez-faire society. Pic, Paul. Traite elementaire de legislation industrielle; les lois ouvricres. Paris, Rousseau, 1912. xv, 1206 p. A scholarly collection and arrangement of laws on labor, with a theoretical and historical introduction. Deals primarily but not exclusively with France. Thorpe, Francis N. (comp.). The federal and state constitutions, colonial charters, and other or- ganic laws of the states, terri- toriSs, and colonies now or here- tofore forming the United States of America. (H. R. doc. 357, 59th Cong., 2d sess.) Washing- ton, Govt. print, off., 1909, 7 v. A complete collection of organic laws, lacking only the constitutions of Arizona and New Mexico, which were adopted in 1910. United States. Bureau of labor statistics. Bulletins. Washing- ton, Govt. print, off., 1895- Issues giving up-to-date texts of American labor laws and court decisions thereon are: No. 148, "Labor laws of the United States, with decisions of the courts relating thereto" (2 v.); No. 152, "Decisions of courts and opinions af- fecting labor, 1913"; No. 166, "Labor legislation of 1914"; No. 169, "De- cisions of courts affecting labor, 1914"; No. 186, " Labor legislation of 1915"; No. 189, "Decisions of courts affecting labor: 1915"; Xo. 213, "Labor legisla- tion of 1916"; No. 224, "Decisions of courts affecting labor: 1916"; Xo. 244, yLabor legislation of 1917"; No. 246, "Decisions of courts affecting labor : 1917"; No. 237, "Labor legislation of 1918." Monthly labor review. Washington, Govt. print, off., BIBLIOGRAPHY 503 Contains summaries of labor laws under discussion and enacted in the United States and abroad. . Children's bureau. Pub- lications. Washington, Govt. print, off., 1913- Giye summaries and tabular analyses of legislation on child labor. Webb, Beatrice. The case for the factory acts. London, Richards, 1902. 233 p. Economic and social justification for social regulation of labor conditions. Willoughby, W. W. The constitu- tional law of the United States. New York, Baker, VoorhiSj 19 10. 2 v. Deals with the general principles un- derlying constitutional law. II. INDIVIDUAL BARGAINING Anson, William rt. Principles of the English law of contract and of agency in its relation to contract. Edited with American notes by E. W. Huffcut. New York, Ox- ford university press, American branch, 1906. li, 462 p. Standard English work on the subject, edited for American use. Ballagh, James C. White servi- tude in the colony of Virginia; a study of the system of indent- ured labor in the American colonies. Baltimore, Johns Hop- kins press, June-July, 1895. (Johns Hopkins university stud- ies in historical and political science,, v. I3:259~357-) Representative picture of the condi- tions of indentured service in the south; includes a chapter on "The freedman." Cant-Wall, Edward. Ireland un- der the land act; letters contrib- uted to the "Standard" news- paper; with an appendix of lead- ing cases under the act, giving the evidence in full, judicial dicta, &c. London, Chatto and Windus, 1882. Excellent material illustrating the operations of the Irish land commission. Commons, John R. Races and immigrants in America. New York, Macmillan, 1913. xiii, 242 p. An estimate of the contribution made by each race to the nation as a whole. Congressional record, containing the proceedings and debates of the 63d Cong., 2d sess., v. 51: 4296-4300, speech of J. I. Nolan, Mar. 4, 1914. Washington, Govt. print, off., 1914. A good short summary of the various attempts at legislation on the subject of convict labor. Coolidge, Mary R. Chinese im- migration. New York, Holt, 1909- x> 531 p. Sketches the history of the anti- Chinese movement, with conclusions in . favor of non-restriction. Eaves, Lucile. A history of Cali- fornia labor legislation, with an introductory sketch of the San Francisco labor movement. Berk- eley, The university press, 1910. (University of California, pub- lications in economics.) xiv, 461 p. Several chapters on the Chinese, with special reference to California. Fair-child, Henry Pratt. Immi- gration; a world movement and its American significance. New York, Macmillan, 1913. xi, 455 P- Historical and descriptive account of immigration to the United States, with discussion of the opportunities and re- sponsibilities to which immigration gives rise. Geiser, Karl F. Redemptioners and indentured servants in the colony and commonwealth of Pennsylvania. New Haven, Conn., Tuttle, Morehouse and Taylor co., n. d. (Supplement to the Yale review, v. io> no. 2, Aug., 1901.) 128 p. Account of the countries whence the early immigrants came, the conditions of their voyage, and their mode of liv- ing in this country; doing for the north what Ballagh's book (q. v.) does for the south. Gulick, Sidney L. American de- mocracy and Asiatic citizenship. New York, Scribner, 1918. 257 p. Plea for a reasonable immigration policy, based on capacity for assimilation, and applied to all races alike. Hancy, Lewis H. (ed.). Studies in agricultural economics (Bui- 504 PRINCIPLES OF LABOR LEGISLATION letin of the university of Texas, no. 298, general series no. 33.) Austin, Tex., University of Texas, 1913. 132 p. Studies of farm tenure and crop mort- gage system in Texas, cooperative farm- ing, the farm labor problem, etc.. by members of the Texas applied eco- nomics club. Hourwich, Isaac A. Immigration and labor; the economic aspects of European immigration to the United States. New York, Put- nam, 1912. xvii, 544 p. Presents the argument against re- striction. Hurd, John C. The law of free- dom and bondage in the United States. Boston, Little, Brown, 1858. 2 v. Deals exclusively with the legal aspect of the question. Ingram, John K. A history of slavery and serfdom. London, Black, 1895. xiv, 285 p. Deals with slavery in ancient Greece and Rome, the serfdom of the middle ages, the African slave trade and slavery in Russia and the east. Jenks, Jeremiah W., and Lauck, William J. The immigration problem; a study of American immigration conditions and needs. New York, Funk and Wagnalls, 1913. xxv, 551 p. Based on the report of the Immigra- tion commission of 1911. Advocates restriction. Kansas City, Mo., free legal aid bureau of the board of pubic welfare. Annual reports. Legal aid society of New York. Annual reports. Also Legal aid review, quarterly. Motley, James M. Apprentice- ship in American trade unions. Baltimore, Johns Hopkins press, *97- (Johns Hopkins university studies in historical and political science, v. 25:482-604.) Chapter on the governmental regula- tion of apprenticeship. Parry, Edward A. The law and the poor. New York, Button, 1914. xxi, 316 p. A London county court judge's criti- cism of the law's treatment of the work- ing class; with a chapter on imprison- ment for debt. Ross, Edward Alsworth. The old world in the new; the significance of past and present immigration to the American people. New York, Century co., 1914. 327 p. Analyzes in turn the racial character- istics of each immigrant group. Smith, Reginald Heber. Justice and the poor. New York, Car- negie foundation for the advance- ment of teaching, 1919. xiv, 271, 'p. Severe arraignment of modern civil and criminal procedure, with discussion of remedial agencies and legal aid societies. Taylor, Henry C. An introduc- tion to the study of agricultural economics. New York, Mac- millan, 1905. viii, 327 p. Chapters on landlord and tenant. Terrell, Mary C. Peonage in the United States; the convict lease system and the chain gangs. (Nineteenth century and after, 1907, v. 62:306-322.) Partly founded on the report of the Georgia state prison commission for 1005-1906; deals with conditions in the south. Underbill, H. Clay. A treatise on the law of landlord and tenant, including leases, their execution, surrender, and renewal, the par- ties thereto, and their reciprocal rights and obligations, the various kinds of tenancy, the, use and pos- session of the premises, the char- acter of rent and the remedies for its recovery, the tenant's right to fixtures, etc., etc.: with full references to the latest American and English cases and to relevant American and English statutes, both ancient and modern. Chi- cago, T. H. Flood, 1909. 2 v. Seeks to give a treatment of the sub- ject in the light of modern conditions and especially to bring out more clearly the contractual character of the land- lord-tenant relationship. United States. Report on condi- tion of woman and child wage- earners in the United States. (Senate doc. 645, 6ist Cong., 2d sess.) v. 6, "The beginnings of child labor legislation in certain states: a comparative study," Elizabeth Lewis Otey. Washing- ton, Govt. print, off., 1910. Chapter on apprenticeship. BIBLIOGRAPHY 505 ....... Bureau of labor statis- tics. Bulletins. Washington, Govt. print, off., 1895- Issues which deal with various phases of individual bargaining are: No. 38, containing "Labor conditions in Mex- ico," Walter E. Weyl; No. 98, contain- ing "Industrial courts of France, Ger- many, and Switzerland," Helen L. Sum- ner; No. 229, "Wage payment legisla- tion in the United States," Robert G. Paterson. ........ Monthly labor review. Washington, Govt. print, off., Contains frequent articles and sum- maries of reports on immigration, con- vict labor, wage payment legislation, and related topics. ....... Commissioner of labor. 20th Annual report. "Convict labor." Washington, Govt. print. off., 1905. 79| P- The fullest and most recent govern- ment publication on the subject. ....... Department of justice. Annual report of the attorney- general. Exhibit 17, p. 207-215. Washington, Govt. print, off., 1907. Short report on peonage conditions re- sulting from an investigation by the as- sistant attorney-general. ....... Immigration commis- sion. Reports. (Senate doc. 747, 6ist Cong., 3d sess.) Washing- ton, Govt. print, off . , 1 9 1 1 . 4 1 v. Contain reports on contract labor, the padrone system, peonage, and immigrant banks. Walz, W. E. Legal aid societies, their nature, history, scope, meth- ods, and results. (Green bag, 1914. v. 26:101.) Deals with the movement in the United States. Ward, H. D. Peonage in America. (Cosmopolitan, 1905, v. 39423- 430.) . Summary and discussion of several peonage cases in the south, including Clyatt v. U. S. Wilson, Henry. History of the rise and fall of the slave power in America. Boston, Houghton, Mifflin, n. d. 3 v. A history of slavery in America from colonial times to the passage of the fifteenth amendment, the most detailed part being concerned with the Civil War. Wolff, Henry W. Cooperation in agriculture. London, King, 1912. x, 378 p. Describes in detail the methods of co- operation used in different countries. The author is a leading authority on cooperation. Wood , Wa I ter J . The place of the public defender in the adminis- tration of justice. Oakland, Cal., 1914. 32 p. Address by the public defender of Los Angeles county before the California bar association. III. COLLECTIVE BARGAINING American federation of labor. History, encyclopedia, reference book of the American federation of labor. Washington, American federation of labor, 1919. 515, v p. Official compilation of all important actions from 1881 to 1918. Reports of the proceedings. Annually, 1881- Record'of official action taken by the leading representative organization of American wage-earners. Data on unions affiliated, membership, and the like. Australia, Bureau of census and statistics, Labour and indus- trial branch. Labour bulletin. Melbourne, quarterly. Contains summaries of the cpmmon- wealth conciliation and arbitration acts and the records of proceedings. British trades union congress. Reports. Published by the au- thority of the Congress and the joint committee. Manchester, Cooperative printing society, an- nually. Express the attitude of English labor. Broad head, Henry. State regula- tion of labour and labour dis- putes in New Zealand; a de- scription and a criticism. Christ- church, N. Z., Whitcombe and Tombs, 1908. 230 p. Written by the secretary of an em- ployers' association, who has been a member of a conciliation board. Op- posed to the arbitration act. Bryan, J. W. The development of the English law of conspiracy. 506 PRINCIPLES OF LABOR LEGISLATION (Johns Hopkins university studies in historical and political science, v. 27:133-161.) Baltimore, Johns Hopkins press, 1909. History of the law of conspiracy in England. Only the last chapter deals especially with the law of conspiracy as developed in labor cases. Proper bounds for the use of the injunction in labor dis- putes. (Annals of the American academy of political and social science, v. 36:288-301.) Phila- delphia, 1910. A lawyer's criticism of the law of con- spiracy as developed in American cases. Clark, John Bates. Is authorita- tive arbitration inevitable? (Po- litical science quarterly, Dec., 1902, v. 17:553-567:) A closely reasoned dis hscussion, going down to the first principles of wages, and concluding that the unsatisfactori- ness of present conditions calls for the establishment of some kind of wage courts. Clark, Victor S. The labour movement in Australasia; a study in social democracy. New York, Holt, 1906. xi, 319 p. Principally concerned with labor pol- itics. Chapters on minimum wage boards and compulsory arbitration, which are criticized dispassionately, the latter also from a legal standpoint. Cohen, Julius Henry. Law and order in industry; five years' ex- perience. New York, Macmil- lan, 1916. 292 p. Results of voluntary arbitration under the protocol in the New York cloak and suit industry. Commons, John R., and Gil- more, Eugene A. (ed.). A docu- mentary history of American industrial society, v. 3, 4, and supplement. Cleveland, Arthur H. Clark, 1910. 10 v. Reprints in full the records of the labor cases in the United States prior to Commonwealth v. Hunt (1842). Cooke, F. H. The law of combina- tions, monopolies, and labor unions. Chicago, Callaghan, 1908. Ixix, 466 p. The law applicable to labor unions. Argues in favor of a liberalization of trade union law. Davies, Emil. The collectivist state in the making. London, Bell, 1914. xviii, 267 p. "Col- lectivism and the labor problem," p. 190-202. Discusses participation of government employees in determining conditions of labor. Dixon, Frank H. Public regula- tion of railway wages. (American economic review, March, 1915, v. 5, no. I, supp. :245~269.) American experience under mediation and arbitration. Gilman, Nicolas P. Methods of industrial peace. Boston, Hough- ton, Mifm'n, 1904. x, 436 p. Written from an unbiased and mod- erate point of view, and illustrated with many examples drawn from different countries. Gompers, Samuel. And yet they would "wish" it on us. " (Amer- ican federationist, 1915, v. 22: 333-337-) Criticizes the industrial arbitration court of New South Wales for its action in reducing wages owing to the war. Australasian labor regu- lating schemes. (American fed- erationist, 1915, v. 22:253-263.) Expresses the view that the arbitra- tion courts and wages boards constitute a "judicial despotism." Great Britain. Board of trade. Reports on proceedings under the conciliation (trade disputes) act, 1896. London, 1897- Short survey of labor conditions throughout the year with special refer- ence to disputes and their settlement; ap- pendices giving tabular statements and detailed summaries of cases decided. Home office. Report to the secretary of state for the home department on the wages boards and industrial conciliation and arbitration acts of Australia and New Zealand, by Ernest Aves. London, Darling, 1908. 226 p. A detailed authoritative report made from personal observation. Labour department. Report on contracts given out by public authorities to associa- tions of workmen, by D. F. Schloss. (Parliamentary papers of 1896, v. 80 [C. 8233].) Lon- don, Eyre and Spottiswoode, 1896. 346 p. Exhaustive report on conditions in Great Britain, New Zealand. Victoria, Russia, France, and Italy. Hammond, Matthew B. British BIBLIOGRAPHY 507 labor conditions and legislation during the war. New York, Car- negie endowment for international peace, 1919. 335 p. Includes study of war-time anti-strike legislation and its results. Higgins, Henry Bournes. A new province for law and order. (Har- vard law review, I. Nov., 1915, v. 29:13-39; II. Jan., 1919, v. 32: 189-217.) Excellent summaries of the principles and operation of the Australian common- wealth arbitration act, by the president of the court which administers it. Ken n ad ay, Paul. Victorian wage boards and the New Zealand con- ciliation-arbitration act. (Yale review, 1911, v. 19:32-54.) Crisp account of the results attained in Victoria and New Zealand, considered with reference to American conditions. King, W. L. Mackenzie. How Canada prevents strikes. (World's work, 1913, v. 26:438- Short explanation of the Canadian industrial disputes investigation act, its purpose and result, by the author of the act. Knoop, Douglas. Industrial con- ciliation and arbitration. London, King, 1905. xxiv, 241 p. Mainly a study of voluntary methods which the author advocates as against the Australasian compulsory system. La idler, Harry W. Boycotts and the labor struggle. New York, Lane, 1914. 488 p. Discusses methods of boycotting, and the principles of law applied in boycott cases. Le Rossignol, J. E., and Stewart, W. D. Compulsory arbitration in New Zealand. (Quarterly journal of economics, 1910, v. 24:660-712.) Summary of origins, working, results, and criticisms. Account of strikes lead- ing to amendment of the act in 1908. Lloyd, Henry D. A country with- out strikes; a visit to the com- pulsory arbitration court of New Zealand. New York, Doubleday, Page, 1900. xiv, 183 p. Enthusiastic appreciation of the New Zealand system in its early days. Martin, W. A. A treatise on the law of labor unions. Washington, Byrne, 1910. xxv, 649 p. "Trade union law as applied by conser- vative courts. Gives sample forms of bills of complaint and injunctions. Moses, Milton. Compulsory arbi- tration in Great Britain during the war. (Journal of political economy, Nov., 1918, v. 26:882- 900.) Description, with reasons, of the fail- ure of anti-strike legislation in essential war industries. Mote, Carl H. Industrial arbitra- tion. Indianapolis, Bobbs-Mer- rill, 1916. 351, xlv p. Study of existing natural and political agencies in various countries for avoiding strikes and lockouts. New South Wales. The official year book of New South Wales. Sydney, annually. Summarizes developments of state in- tervention in industry in New South Wales. Department of labour and industry. Industrial ga- zette. Sydney, monthly Contains awards in force. New Zealand. The New Zealand official year book. Wellington, annually. Contains accounts of the arbitration court and of the conciliation councils. Department of labour. Awards, recommendations, agree- ments, etc., made under the in- dustrial conciliation and arbitra- tion act, New Zealand. Welling- ton, annually. Designed to "serve somewhat the pur- pose which the law reports fulfi} in re- gard to other branches of legal^admin- istration." Pigou, Arthur Cecil. Principles and methods of industrial peace. New York, Macmillan, 1905. xx, 240 p. Desirability of industrial peace, anal- ysis of wage problems, and methods of amicable settlement. Price, Langford L. Industrial peace, its advantages, methods, and difficulties; a report of an inquiry made for the Toynbee trustees. London, Macmillan, 1887. xxxi, 127 p. One of the first attempts to sound the possibilities of arbitration and concilia- tion. Based on an investigation of the coal and iron industries in the north of England. Reeves, W. Pember. State ex- periments in Australia and New 5 o8 PRINCIPLES OP LABOR LEGISLATION Zealand. London, Grant Rich- ards, 1902. 2 v. Account of the New Zealand arbitra- tion act and its working, by the author of the act. St. Ledger, A. Australian social- ism; an historical sketch of its origin and developments. Lon- don, Macmillan, 1909. xv, 365 p. And -socialist; favors wages boards but considers that compulsory arbitra- tion has proved a failure. Seager, Henry R. The legal status of trade unions in the United Kingdom, with conclu- sions applicable to the United States. (Political science quar- terly, Dec., 1907, v. 22:611-629.) Reasons for adopting in the United States legislation comparable to the trade disputes act of Great Britain. Siegfried, Andre. Democracy in New Zealand. Tr. E. V. Burns. London, Bell, 1914. xxiii, 398 p. Brilliant study of political, social, and industrial life in New Zealand; considers the arbitration system at least tempo- rarily successful. United States. Bureau of labor statistics. Bulletins. Washing- ton, Govt. print, off., 1895- The following issues present particu- larly important articles dealing with collective bargaining: No. 60 contains "Governmental industrial arbitration," L. W. Hatch; No. 98 gives a series of reports on mediation and arbitration in America and abroad; No. 124, ''Con- ciliation and arbitration in the building trades of Greater New York," Charles H. Winslow; Np. 133, "Report of the industrial council of the British board of trade on its inquiry into industrial agreements"; No. 144, "Industrial court of the cloak, suit, and skirt industry of New York City," Charles H. Winslow; No. I.1S, "Conciliation, arbitration, and sanitation in the dress and waist indus try of New York City," Charles H. Wins- low; No. 191, "Collective bargaining in the anthracite coal industry," Edgar Sydenstricker; No. 198, "Collective agreements in the men's clothing indus- try," Charles H. Winslow; No. 233. "Operation of the industrial disputes investigation act of Canada," Benjamin M. Squires; No. 237, "Industrial un- rest in Great Britain": No. 255, "Joint industrial councils in Great Britain." Monthly labor review. Washington, Goyt. print, off . , 1 9 1 5- Gives current information on trade union organizations, statistics of strikes and lockouts, operation of mediation and arbitration boards, and kindred matters. Industrial commission. Reports on labor organizations, labor disputes and arbitration, and on railway labor, v. 17, pt. Ill, p. 325-546. Washington, Govt. print, off., 1901. National and local agreements in many trades; the federal and state laws on arbitration, and methods of arbitra- tion in foreign countries. Victoria. Victorian year book. Melbourne, annually. Gives summary of the law and lists of existing or authorized wages boards. Watney, Charles, and Little, James A. Industrial warfare; the aims and claims of capital and labour. London, J. Murray, 1912. x, 353 p. Comprehensive picture of unrest in various fields of British labor. Webb, Sidney. The restoration of trade union conditions. New York, Huebsch, 1917. 109 p. Analysis of the network of trade union rules abrogated during the war, danger of a sham restoration, and plan for a constructive policy. Webb, Sidney, and Webb, Bea- trice. Industrial democracy. London, Longmans, Green, 1902. Ixi, 927 p. 2 v. in one. Analyzes trade union structure, func- tion, and theory. The classic work on collective bargaining. The history of trade union- ism. London, Longmans, Green, 1911. Ixviii, 558 p. A narrative of the facts of trade union history in England, forming the com- plement to "Industrial democracy." A new introductory chapter recounts the story of the Osborne judgment and gives a general survey of trade unionism in 19 10. We in stock, Harris. The best way to minimize strikes and lock- outs. (Transactions of the Com- monwealth club of California, v. 5:43-52.) San Francisco, 1911. . Argues that compulsory arbitration is unsuited to American conditions, that voluntary arbitration has hitherto failed, and that the plan of equal representation of employers and employed on an arbi- tration board is likely to be more success- ful than either. Witte, Edwin E. The Clayton bill and organized labor. (Survey, 1914, v. 32:360.) The modifications in trade union law made by the Clayton antitrust act. See also under The minimum wage: Collier, Hammond, Webb. BIBLIOGRAPHY 509 IV. THE MINIMUM WAGE American association for labor legislation. American labor leg- islation review. Quarterly, 1911- The following numbers contain mate- rial on the minimum wage: Feb., 1913, v. 3: 81-115. address and discussion; Dec., 1918, v. 8: 355-364, summary of minimum wage laws and commission awards in the United States. Andrews, Irene Osgood. Mini- mum wage legislation. Albany, Lyon, 1914. 219 p. (Printed also as Appendix III of the Third report of the New York state factory investigating commission. Albany, 1914. p. 169-385.) History, text, analysis, and operation of American and foreign laws; decision of Oregon supreme court upholding the state law. ........ The relation of irregular employment to the living wage for women. (American labor legislation review, June, 1915, v. 5:287-418. Printed also as Appendix X of the Fourth report of the New York state factory investigating commission. Al- bany, 1915. p. 497-635.) Need of considering income losses of women workers through unemployment and underemployment in making mini- mum wage awards; table of minimum wage awards to January i, 1915. Andrews, Irene Osgood, and Hobbs, Margarett A. Eco- nomic effects of the war upon women and children in Great Britain. New York, Carnegie endowment for international peace, 1918. 190 p. Discusses war-time flow of women into industry, hours of labor, wages, safety and health, and related problems. Brown, Rome G. The minimum wage. Review publishing co., Minneapolis, 1914. xv, 98 p. Theoretical arguments against mini- mum wage legislation; alleged uncon- stitutionally of the Minnesota statute. California, Industrial welfare commission. Biennial reports. Cost of living studies, reports of wage boards, investigations of working con- ditions of women and children in various industries, orders of the commission. The Case for the minimum wage. (Survey, Feb. 6, 1915, v. 33:487- 515, 521-524-) Symposium, containing articles on the need, extent, and operation of minimum wage legislation in this country and abroad by well-known experts, including Florence Kelley, Louis D. Brandeis, M. B. Hammond, John A. Hobson, Howard B. Woolston, N. I. Stone, and Esther Packard. Clark, John Bates. The minimum wage. (Atlantic monthly, Sept., 1913, p. 289-297.) Theoretical discussion setting forth the probable operation of the legal minimum wage, with particular em- phasis upon those who might be thrown out of work by such laws. Collier, Paul Stanley. Minimum wage legislation in Australia. (Appendix VIII of Fourth report of the New York state factory investigating commission, v. 4: 1845-2268. Albany, 1915. Also reprint.) Exhaustive study of the operation and effects of the various methods of wage regulation in the separate Australian states and in the commonwealth. Frankfurter, Felix, and Gold- mark, Josephine. Brief for de- fendants in error upon reargu- ment in the case of Stettler v. O'Hara et al. f constituting the industrial welfare commission. Oregon, 1916. 783 p. Revised and enlarged edition of orig- inal brief prepared by Louis D. Brandeis. Selection of extracts favorable to the legal minimum wage; sets forth evil of low wages, benefits of an adequate wage, benefits of the legal minimum wage, and analogy with other labor legislation. Hammond, Matthew B. Judicial interpretation of the minimum wage in Australia. (American economic review, June, 1913, v. 3:259-286.) Analysis of the fundamental prin- ciples underlying decisions given under the laws establishing minimum wages in Australasia; based upon studies made during a personal visit to those countries in the winter of 1911-1912. The minimum wage in Great Britain and Australia. (Annals American academy of political and social science, July, 1913, v. 48:22-36.) 5 io PRINCIPLES OP LABOR LEGISLATION Results secured under the Victorian and British wage board laws, based upon personal investigations. Wages boards in Australia. I. Victoria. II. Boards outside Victoria. III. Organization and procedure. IV. Social and eco- nomic results of wages boards. (Quarterly journal of economics, 1914, v. 29:98-148, 326-361, Contains a mass of detail concerning the wage boards and their economic effects. Holcombe, Arthur N. The legal minimum wage in the United States. (American economic re- view, 1912, v. 2:21-37.) Foreign systems of wage regulation, constitutional outlook in America, eco- nomic need of minimum wage legislation, and probable effect upon the relation between employer and employees. Lippman, Walter. The campaign against sweating. (New repub- lic, March 27, 1915, v. 2, no. 21, part 2, 8 p.) Popular, forceful article on the need for minimum wage legislation, j Massachusetts. Commission on minimum wage boards. Re- port. Boston, 1912. 326 p. The report which led to the passage of the first American minimum wage law; investigation of wages of women and minors in Massachusetts candy fac- tories, laundries, and retail stores; need of legislation. Minimum wage com- mission. Annual reports. Bos- ton, 1914- Contain investigations of women's wages, and operation of wage boards in various industries. Merchants and manufacturers of Massachusetts. Executive committee. The minimum wage, a failing experiment; together with some sidelights on the Mas- sachusetts experience. Boston, 1916. 58 p. Effort to prove that to encpurage the minimum wage law is to "sign a pre- liminary death warrant for many Massa- chusetts industries." N earing, Scott. Wages in the United States; 1908-1910. New York, Macmillan, 191 1. viii, 220 p. First American study popularizing wage data. Concludes that average wages of adult males were in neighbor- hood of $600 a year. New York. State factory investi- gating commission. Fourth re- port. Albany, 1915. Wages in New York state in mercan- tile establishments; in the shirt, paper box, confectionery, and button indus- tries; in New York city in the millinery trades; relation of irregular employment to the living wage for women; cost of living; living conditions; opinions on minimum wage legislation. Oregon. Industrial welfare com- mission. Biennial reports. Sa- lem, 1915- Include orders issued by the com- mission. Persons, Charles E. Estimates of a living wage for female workers. (Quarterly publications of the American statistical association, June, 1915, v. 14:567-577.) Comparison of nine studies, and con- clusion that 58.50 is a working basis. Raynaud, Barthelemy. Vers le salaire minimum: e"tude d'cono- mie et de legislation industrielles. Paris, Librairie de la socie"te~ du recueil Sirey, 1913. Detailed theoretical and historical study. Ryan, John Augustine. A living wage; its ethical and economic aspects. New York, Macmillan, 1906. 346 p. Emphasizes especially the ethical and economic bases ahd the present need for minimum wage legislation in the United States. Seager, Henry Rogers. The the- ory of the minimum wage. (American labor legislation re- view, Feb., 1913, v. 3:81-91.) A statement of the underlying theory of minimum wage legislation together with its probable results upon the or- ganization of industry and upon other problems of labor legislation; contains discussion by John R. Commons, Paul U. Kellogg. M. B. Hammond, George W. Anderson, Henry Abrahams, G. W. Noyes, Edward F. McSweeney, George G. Groat, and Emily Green Balch. Smith, Constance. The case for wages boards. National anti- sweating league, London, 1908. 94 P- Principal features of sweating system in England and legislative action to remedy it. Snowden, Philip. The living wage. London, Hodder and Stoughton, 1913. 189 p. Discussion of the benefits of the legal BIBLIOGRAPHY minimum wage, including experience gained under the British trade boards act since 1910. Streightoff, Frank Hatch. Dis- tribution of incomes in the United States. (Columbia uni- versity studies in history, eco- nomics, and public law, v. 52, no. 2.) New York, Longmans, Green, 1912. 171 p. Analyzes available data and argues for better information. Estimates that at least half the males aged sixteen or over in gainful occupations are earning less than $626 a year. Tawney, Richard H. The estab- lishment of minimum rates in the chain-making industry under the trade boards act of 1909. London, Bell, 1914. 157 p. Intensive study of conditions m the English chain-making industry before and after the fixing of minimum rates by a trade board. The establishment of mini- mum rates in the tailoring indus- try under the trade boards act of 1909. London, Bell, 1915, 274 p. Application of act to 140,000 workers, advance in wages, effects on employment and on trade unionism, administrative difficulties, especially in case of home workers. United States. Bureau of labor statistics. Bulletins. Washing- ton, Govt. print, off., 1895- Numbers dealing especially with the minimum wage include: No. 167, "Minimum wage legislation in the United States and foreign countries," C. H. Verrill; No. 176, "Effect of mini- mum wage determinations in Oregon." Marie L. Obenauer, Bertha von der Nienburg. Monthly labor review. Washington, Govt. print, off., I9I.5- Gives reports of cost of living and wage investigations, and orders of the com- missions. Woman in industry ser- vice. Bulletins. Washington, Govt. print, off., 1919- Contain studies of women's wages and working conditions. No. 4, " Wages ( of candy makers in Philadelphia in I9I9-" Washington. Industrial welfare commission. Biennial reports. Olympia, 1915- Operation of the minimum wage law, emphasizing effect on wages and effi- ciency. Webb, Sidney. The economic theory of a legal minimum wage. (Journal of political economy, 1912, v. 20:973-998.) Summary of the theoretical and prac- tical arguments in favor of the minimum wage, illustrated by experience under existing laws; comprehensive statement in favor of minimum wage legislation. See also under Collective bargain- ing: Great Britain, Kennaday. V. HOURS OF LABOR American association for labor legislation. American labor leg- islation review. Quarterly, 1911- Issues presenting valuable articles and data on hours include: Dec., 1912, v. 2: 517-533. material on need of one day s rest in seven; March, 1914, v. 4' 105- 137, papers and discussion on rest periods in continuous industries; Dec., 1914, v. 4: 611-630, operation of one day's rest in seven laws, and standard bill; March, 1917, v. 7: 139-181, papers and discus- sion on rest periods in continuous indus- tries; Dec., 1918, v. 8: 339-354. sum- mary of hour legislation for women m the United States; Sept., 1919. v. 9: 529-538, draft conventions and recom- mendations adopted by the International Iab9r conference of the League of nations. Ballard, S. Thrustpn. Eight-hour shifts in the milling industry. (American labor legislation re- view, March, 1914, v. 4:117- 120.) Gives experience of one industry using eight-hour shifts. Bogardus, E. S. The relation of fatigue to industrial accidents. (American journal of sociology, 1911-12, v. 17:206-222, 351-374. 512539.) Study of the effect of fatigue on the system and an attempt to correlate work- ing hours and accident frequency. Brandeis, Louis D., and Gold- mark, Josephine. Brief in the case of Ritchie v. Wayman. Illi- nois, 1909. 610 p. The dangers of long hours, benefits of short hours, desirability of uniformity, reasonableness of the ten-hour law for women. Brief in the case of People PRINCIPLES OF LABOR LEGISLATION 512 v. Charles Schweinler press. New York, 1915. 5 2 9 P- Argues the constitutionality of pro- hibiting night work for women. Commons, John R., and An- drews, John B. Documentary history of American industrial society. Cleveland, Clark, 1919. V. 8:81-210, contains documents il- lustrative of the movement to decrease hours of labor; v. 9: 24-33, the growth of the philosophy of hour limitation. Fitch, John A. Sunday and rest day labor laws in the United States. (New York Department of labor bulletin no. 45:377-403- Albany, 1910.) A review of court decisions on Sunday rest day laws showing that their justi- fication by virtue of the police power ap- plies even more clearly to the one day of rest in seven laws. Judicial basis for legisla- tive restriction of hours of labor of adult males. (New York De- partment of labor bulletin no. 46:90-121. Albany, 1911.) Critical review of court decisions. The steel workers. The Pittsburgh survey. New York, Charities publication committee, 1911. 380 p. Treats of the results of a seven-day week and twelve-hour day. Frankfurter, Felix, and Gold- mark, Josephine. Brief for de- fendant in error in the case of Bunting v. Oregon. Oregon, 1915. 2v. 984 p. Successful argument, based on eco- nomic data, for constitutionality of Ore- gon ten-hour law for men. (& J Freund, Ernst. Constitutional aspects of hour legislation for men. (American labor legisla- tion review, March, 1914, v. 4: 129-132.) Suggestion of possible principles on which to base hour legislation. Constitutional limitations and legislation. (Proceedings of third annual meeting of the American association for labor legislation, p. 51-71. New York, 1910.) ' Critical discussion of development of theory of constitutionality of hour legis- lation. The constitutional aspects of the protection of women in in- dustry. (Publications Academy of political science, 1910, v. i: 162-184.) Garretson, Austin B. Long hours in railroading. (American labor legislation review, March, 1914, v. 4:120-128.) Personal experiences and statistics of hours and casualties. Goldmark, Josephine. Fatigue and efficiency; a study in indus- try. New York, Charities publi- cation committee, 1912. xvii, 591 P- Shpws necessity for regulation of working hours to prevent overfatigue and exhaustion. Handbook of laws regulat- ing women's hours of labor, and a standard law embodying the best provisions of the most ef- fective statutes now in force. New York, National consumers' league, 1913. 56 p. The inalienable right to rest. (Survey, May 24, 1913, v. 30:264-266.) Comment on favorable decision of Mississippi supreme court upholding state's ten-hour law for factory workers. U. S. supreme court and the eight-hour day. (Survey, Mar. 20, 1915, v. 33:677-678.) Brief statement of recent court deci- sions. Great Britain. Home office. Report of departmental com- mittee on the night employment of male young persons in factories and workshops. Minutes of evi- dence and appendices. London, Wyman, 1913. 289 p. Report on the acts for the regulation of the hours of em- ployment in shops in Australia and New Zealand, by Ernest Aves. 1908. 218 p. The advantages and risks of limiting hours of labor compared; decision in favor of limitation based on increased efficiency of service. . Ministry of munitions. British health of munition work- ers' committee memoranda. Lon- don, 1915, 1916. (Also reprints by United States Bureau of labor statistics, Bulletins No. 221, 222, 223, 230, 249.) BIBLIOGRAPHY Strong recommendations, on basis of war experience, for shorter hours and better conditions as a means of securing larger output. International association for la- bor legislation. Report of the special commission on hours of labor in continuous industries. London, Pioneer press, 1912. 26 p. Comparison of actual conditions in different countries and the results ob- tained by introducing the eight-hour, three-shift, system. Kelley, Florence. The sex prob- lems in industrial hygiene. (Amer- ican journal of public hygiene, June, 1910, v. 20:252-257.) Brief plea for legal regulation of the hours of labor of women to prevent ex- cessive fatigue. Lee, Frederic S. The human machine and industrial efficiency. New York, Longmans, Green, 1918. v, 119 p. Scientific data reinforcing the case for short hours and good working conditions. Lever, William H. L. (Lord Lever- hulme). The six-hour day and other industrial questions. Lon- don, Allen, 1918. 331 p. Proposal by a prominent soap manu- facturer for the introduction of six-hour shifts in his plant. Manly, Basil M. Work periods in continuous night and day occu- pations. (American labor legis- lation review, March, 1914, v. 4: 109-116.) Argues for eight-hour shifts in con- tinuous industries. New York. Department of la- bor. Bulletin no. 49. Albany, 1911. "Rest day legislation in foreign countries," p. 508-518. Abstracts of the laws in all foreign countries. State factory investi- gating commission. Second report. Albany, 1913. "Night work of women in factories," p. 193-215. Summarizes investigations and the legal status of night work. Persons, Charles E., Parton, Mabel, and Moses, Mabelle. Labor laws and their enforce- ment. New York, Longmans, 1911. "The early history of fac- tory legislation in Massachu- setts; from 1825 to the passage 33 of the ten-hour law in 1874," p. 1-129. "Hours of labor: Of women and children Of public employees," p. 314-315. Gives history of the agitation for shorter hours in Massachusetts and the situation in 1911. Price, George M. Night work of women. (In Second report of the New York state factory in- vestigating commission, Albany, 1913, P- 439-459-) Investigations in a cordage mill, and analysis of the personal histories of ioo women night workers. United States. Final report of industrial commission. Wash- ington, 1902. "Hours of labor," v. 19763-793-. Effect of reduction of working time on output and development of legal theory. Report on condition of woman and child wage-earners in the United States. (Senate doc. 645, 6ist Cong., 2d sess.) Washington, Govt. print, off., 1910-1912. 19 v. Report of extensive official investiga- tions into the cotton, clothing, glass, and silk industries, laundries, etc. Report on conditions of employment in the iron and steel industry in the United States. (Senate doc. no, 62d Cong., 1st sess.) Washington, Govt. print, off., 1911-1912. V. i deals with wages and hours of labor; v. 2 gives detailed tables in re- gard to the same; v. 3 treats of the va- rious factors affecting the health and efficiency of the working force, such as the seven-day week and the twelve-hour day. Bureau of labor statis- tics. Bulletins. Washington, Govt. print, off., 1895- No. 52, "Child labor in the United States," H. R. Sewall. No. 96, "Work- ing hours, earnings, and duration of em- ployment of women workers in Maryland and California, 1911," Marie L. Oben- auer. No. 116, "Hours, earnings, and duration of employment of wage-earn- ing women in selected industries in the District of Columbia." No. 117, "P ro ,; hibition of nightwork of y9ung persons." No. 118, "Ten-hour maximum working day for women and young persons." No. 119, "Working hours of women in the pea canneries of Wisconsin." No. 128, "Wages and hours of labor in the cotton, woolen, and silk industries, 1890- 1912." No. 129, "Wages and hours of PRINCIPLES OF LABOR LEGISLATION labor in the lumber, millwork, and furni- ture industries, 1890-1912." No. 131, " Union scale of wages and hours of la- bor, 1907-1912." No. 134. "Wages and hours of labor in the boot and shoe and hosiery and knit goods industries, 1890- 1912." No. 135. "Wages and hours of labor in the cigar and clothing indus- tries, I9H and 1912." No. 137. "Wages and hours of labor in the build- ing and repairing of steam railroad cars." No. 143, "Union scale of wages and hours of labor, May 25. I9I3-." No. 150, "Wages and hours of labor m the cotton, woolen, and silk industries, 1907-1913." No. 151. "Wages and hours of labor in the iron and steel in- dustry in the United States, 1907-1912." No. 153, "Wages and hours of labor in the lumber, millwork, and furniture in- dustries, 1907-1913-" No. 154. "Wages and hours of labor in the boot and shoe and hosiery and knit goods industries, 1907-1913." No. 160, "Hours, wages, and conditions of labor of women in Indiana mercantile establishments and garment factories." No. 161, "Wages and hours of labor in the clothing and cigar industries, 1911-1913." No. 163. " Wages and hours of labor in the build- ing and repairing of steam railroad cars, 1907-1913." No. 168, " Wages and hours of labor in the iron and steel industry, 1007-1913." No. 171, "Union scale of wages and hours of labor, May i, 1914." No. 178, "Wages and hours of labor in the boot and shoe industry, 1907-1914." No. 187, "Wages and hours of labor in the men's clothing industry. 191 1-1914.-" No. 190, "Wages and hours of labor in the cotton, woolen, and silk industries 1907-1914." No. 204, "Street railway employment in the United States." No. 214, " Union scale of wag^es and hours of labor. May 15. 1916." No. 218, "Wages and hours of labor in the iron and steel industry, 1907-1915." No. 221, "Hours, fatigue, and health in British munition factories." No. 225, "Wages and hours of labor in the lumber, millwork, and furniture industries, 1915." No. 230, "Industrial efficiency and fatigue in British munition factories." No. 232, "Wages and hours in the boot and shoe industry, 1907-1916." No. 238, "Wages and hours of labor in woolen and worsted goods manufacturing, 1916." No. 239, "Wages and hours of labor in cotton goods manufacturing and finishing, 1916." No. 245. "Union scale of wages and hours of labor. May 15, 1917." No. 249, "Industrial health and efficiency." No. 252, "Wages and hours of labor in the slaughtering and meat-packing in- dustry, 1917-" .No. 261, "Wages and hours of labor in woolen and worsted goods manufacturing, 1918." Monthly labor review. Washington, Govt. print, off., Give_s digests of investigations into hours in various industries, and legisla- tion on the subject. National war labor board. Memorandum on the eight-hour working day. Wash- ington, Govt. print, off., 1918. Actual effects of shorter work day in increasing production; summary of existing eight-hour legislation for men. Treasury Department. Public health service. Com- parison of an eight-hour plant and a ten-hour plant. (Public health bulletin No. 106, Josephine Goldmark and Mary D. Hop- kins.) Washington, Govt. print, off., 1920. 213 p. Careful experimental study, showing superiority of eight-hour plant in main- tenance of output, reduction of lest time, more incentive to individual out- put, and fewer accidents. Van Kleeck, Mary. Working hours of women in factories. (Char- ities, 1906-1907, v. 17:13-21.) Describes actual conditions, non-en- forcement of ten-hour law, and results in physical condition of working women. See also under Safety and health: Keeling. VI. UNEMPLOYMENT American association for labor legislation. American labor leg- islation review. Quarterly, 1911- Issues dealing primarily with unem- ployment are: v. 4, no. 2. May, 1914, Proceedings of the first national con- ference on unemployment" (includes critical bibliography); v. 5, no. 2, June, 1915. "Proceedings of the second na- tional conference on unemployment" (includes critical bibliography); v. 5, no. 3, Nov., 1915, "Unemployment sur- vey." Andrews, John B. A practical program for the prevention of unemployment in America. New York, 1914. 24 p. A number of constructive, practical suggestions looking to the prevention of unemployment through the establish- ment of public employment exchanges, systematic distribution of public work, regularization of industry, unemploy- ment insurance, and other helpful measures including constructive care o/ the unemployable. BIBLIOGRAPHY D fe r Arbeitsnachweise i n Deutschland. Halbmonats- schrift der Centralstelle fur Ar- beitsmarktberichte. Zugleich Or- gan des Verbandes deutscher Ar- beitsnachweise. (Formerly "Der Arbeitsmarkt.") Berlin, 1897- The leading source of information on the condition of the German labor market and on the operations of the German labor exchanges. Beveridge, William Henry. Un- employment; a problem of in- dustry. London, Longmans, 1912. 405 p. Discusses the problem and its limits, sources of information, seasonal fluctua- tions, cyclical fluctuation, the reserve of labor, loss and lack of industrial quality, the personal factor, remedies of the past, and principles of future policy. Valu- able appendix on public labor exchanges in Germany. Beveridge, W. H., and Rey, C. F. Labor exchanges in the United Kingdom. (Quarterly bulletin of the international association on unemployment, July, 1913, v. 3:767-825.) Authoritative description of British employment exchange system and its methods of operation. California. Commission of im- migration and housing. Re- port on unemployment. State print, off., 1914. 73 p. Supplement to first annual report. Recommendations for the elimination of unemployment, including state labor exchanges, regulation of private employ- ment agencies, housing regulation, un- employment insurance, rural credits, state land bureau and other points. Chicago. Commission on the unemployed. Report. Chi- cago, 1914. Results of two years' intensive study. Great Britain. Board of trade. Abstract of labor statistics of the United Kingdom. London, annually. Contains especially fluctuations in employment, unemployment insurance, operation of labor exchanges, women's employment bureaus, distress commit- tees, trade union unemployed benefits. Ministry of labor. La- bour gazette. London, fridnthly, 1893- Regularly contains sections on the labor market, unemployment insurance, employment in the principal industries and public labor exchanges. Royal commission on poor laws and relief of dis- tress. Report of the Royal com- mission on the poor laws and relief of distress. Part VI, "Dis- tress due to unemployment." London, 1909. 3O3~445 p. The Minority report of the Poor law commission. . . . London. Printed for the National com- mittee to promote the break-up of the Poor law, 1909. 2 v. Minority report by Sidney and Beatrice Webb; part 2, "Public organi- zation of the labor market," contains: The able-bodied under the unemployed workmen act, the distress from unem- ployment, proposals for reform. International association on un- employment. Bulletin trimes- triel de 1'Association Interna- tionale pour la lutte centre le chdmage; edited by Max Laz- ard. Paris, 1911- Contains articles by European and American specialists, in English, French, and German. The issues which have appeared to date have dealt with the fol- lowing topics: 191 1, no. i, unemploy- ment insurance; no. 2, employment bureaus, 1912, no. 1-2, relation of child labor to unemployment: no. 3, relation of emigration and immigration to unemployment, employment bureaus for agricultural workers; no. 4, proceed- ings of the third session of the Interna- tional committee on unemployment. 1913, no. i, aid to the unemployed; no. 2, statistics of unemployment, no. 3, results of the international study of pub- lic employment exchanges in 191 1 ; no. 4, reports on unemployment and migra- tion. 1914. no. i, international reports on the operation of unemployment in- surance systems, reports on unemploy- ment and public works; no. 2, working of unemployment insurance in England, equilibrium between production and con- sumption, international statistics on unemployment. Kellor, Frances A. Out of work. New York, Putnam, 1915. 560 p. Discussion of the extent of unemploy- ment in America, unemployment among women and children, employment agencies, unemployment insuranfce, crit- icism of remedies proposed, and a pro- gram. Leiserson, William M. The theory of public employment of- fices and the principles of their practical administration. New York, Ginn, 1914. 27-46 p. (Reprinted from Political science 516 PRINCIPLES OF LABOR LEGISLATION quarterly, March, 1914, v. 29, no. i.) Comprehensive review of the subject, with suggestions for operation of efficient exchanges. Lescohier, Don D. The labor market. New York, Macmillan, 1919- 338 P. Brilliantly analyzes the causes of fluc- tuation in American labor supply and demand, and discusses methods for re- ducing it. Based on author's wide first- hand experience as well as on extensive acquaintance with the literature of the subject. Mess, H. A. Casual labor at the docks. London, Bell, 1916. The scramble for work, irregular earn- ings and their consequences, suggestions for decasualization. National employment bureau. Hearings before the Committee on labor, House of representa- tives, 63d Cong., 2d sess. Wash- ington, Govt. print, off., 1914. 112 p. Three parts; hearings on June 5, June 12, and July 13, 1914, on the Murdock and MacDonald bills. New York. Commission on employers' liability and other matters. Third report, " Unem- ployment and lack of farm labor." Albany, 1911. 245 p. Study of conditi9ns in New York state and brief description of unemployment insurance plans in force abroad. Rowntree, B. Seebohm, and Lasker, Bruno. Unemploy- ment, a social study. London, Macmillan, 1911. 317 p. Account of a detailed investigation of unemployment in York, together with suggestions for remedying the evils which it disclosed. Slichter, Sumner H. The turn- over of factory labor. New York, Appleton, 1919. xiv, 460 p. Exhaustive and authoritative treat- ment of the amount, cost, causes and means of reducing the shifting of work- ing forces. United States. Bureau of edu- cation. Juvenile labor bureaus and vocational guidance in Great Britain. (Its Bulletin, no. 482: 13-17.) .... The school and the start in Me: a study of the relation be- tween school and employment in England, Scotland, and Germany. (Its Bulletin, 1914, no. 4, whole no - 575-) Washington, Govt. print, off., 1914. 146 p. _ Contains much information of value in regard to methods of juvenile labor exchanges and juvenile placement work. Bureau of labor statis- tics. Bulletins. Washington, Govt. print, off., 1895- No. 109, "Statistics of unemploy- ment and the work of employment offices ' No. 172, "Unemployment in New York city, New York." No. 182, Unemployment among women in de- partment and other retail stores of Bos- ton. No. 183. "Regularity of employ- ment in the women's ready-to-wear garment industries." No. 192, "Pro- ceedings of the American association of public employment offices." No. 195 Unemployment in the United States." No. 196. "Proceedings of employment managers conference, Minneapolis, Jan- uary 19 and 20, 1916." No. 202, "Pro- ceedings of the conference of employment managers' association of Boston, Mass., held May 10, 1916." No. 206, "The British system of labor exchanges," B. Lasker. No. 227, "Proceedings of the employment managers' conference, Phila- delphia, Pa., April 2 and 3, 1917." No. 241, Public employment offices in the United States," John G. Herndon, Jr. No. 247, "Proceedings of the employ- ment managers' conference. Rochester. N. Y. f May 9, 10, and n, 1918." Monthly labor review. Washington, Govt. print, off., Furnishes data on labor turnover, operation of public employment offices, and related topics. Von Mayr, G., and Varlez, Louis. La statistique du ch6mage. Ghent, 1913- i86p. Report of the special committees ap- pointed by the International statistical institute and the International associa- tion on unemployment, with recommen- dations for more frequent, general, and uniform gathering of statistics. Webb, Sidney. Seasonal trades, by various writers, with an intro- duction by Sidney Webb. Lon- don, Constable, 1912. 410 p. The outcome of a seminar at the Lon- don school of economics and political science during the session of 1910. Webb, Sidney, and Webb, Bea- trice. The prevention of desti- tution. London, 1911. 348 p. Treats of sweating and unemployment as causes of destitution, how to prevent unemployment and underemployment, insurance, the enlarged sphere of vol- untary agencies in the prevention of BIBLIOGRAPHY destitution, the need for a common Account of a successful attempt to registrar of public assistance, the abolish casual labor on the docks of "moral factor." Liverpool; the high water mark of Williams, R. First year's work- efforts in this direction. ing of the Liverpool docks scheme. See also under The minimum wage: London, King, 1914. 192 p. Andrews. VII. SAFETY AND HEALTH American association for labor legislation. American labor leg- islation review. Quarterly, 1911- Among the important issues dealing with saftey and health are: v. I, no. i, Jan., 1911, "Proceedings of the fourth annual meeting"; v. 2. no. i, Feb., 1912, "Proceedings of the fifth annual meet- ing"; v. 2, no. 2, June, 1912, "Second national conference on industrial dis- eases" (includes critical bibliography); y. 2, no. 4, Dec., 1912, "Immediate leg- islative program"; v. 6, no. i, March, 1916, "Protection of seamen"; v. 6, no. 4, Dec., 1916, "Women in industry." Eastman, Crystal. Work acci- dents and the law. New York, Charities publication committee, 1910. xvi, 345 p. Chapters on the "Personal factor in industrial accidents," "Distribution of the burden of income loss," and "The effect of industrial fatalities upon the home." Hay hurst, Emery R. Industrial health-hazards and occupational diseases in Ohio. Columbus, Ohio state board of health, 1915. 438 p. Classification of industries and a study of the causes of hazard in each, including dust, lighting, ventilation, sanitation, fatigue, poisons. Illinois. Commission on oc- cupational diseases. Report. Chicago, 1911. 219 p. Authoritative treatise based on orig- inal investigations by experts with gen- eral description of the work, discussion of principles of effective legislation, text of proposed bills, suggestions for cards of instruction for employees in dangerous trades, provisions of protective laws in states of the union and in European legislation. International congress on hy- giene and demography. Trans- actions of the 1 5th international congress, Washington, Sept. 23- 28, 1912. 6 v. V. i, part 2 contains article on "In- dustrial accidents and trade diseases in the United States," by Frederick L. Hoffman, p. 763-803. V. 3, part 2 on Hygiene of occupations contains a col- lection of papers dealing with various phases of occupational hygiene. Among the subjects considered in their relations to industrial hygiene are child labor, tenement hous? manufacturing, and in- dustrial accidents. Keeling, Frederic. Child labor in the United Kingdom, a study of the development and administra- tion of the law relating to the em- ployment of children. London, King, 1914. 307 p. Gives minimum standards required for entrance to dangerous trades. Kober, George M., and Hanson, William C. Diseases of occupa- tion and vocational hygiene. Philadelphia, Blakiston, 1916. xxi, 918 p. Basic data, by experts in their respec- tive fields, on the character, gravity, causes, and prevention of occupational diseases. National child labor committee. American child. Quarterly, 1912- From 1912-1918 called Child labor bulletin. Dealing with prevalence of child labor, special occupational hazards, and enactment and enforcement of pro- tective legislation. National council for industrial safety. Proceedings of safety congresses, 1912- Articles on fire, accident, and occupa- tional disease prevention, effective legis- lation, and organization of efforts to promote safety. New York. State factory Inves- tigating commission. Reports, 1912-1915. Results of investigations into fire hazard, tenement labor, occupational diseases, sanitary conditions, and acci- dent prevention in mercantile and manu- facturing establishments. Occupational mortality statis- tics. Experience of thirty-four life companies upon ninety-eight special classes of risks. Com- 5'* PRINCIPLES OF LABOR LEGISLATION piled and published by the Ac- tuarial society of America. New York, 1903. xiv, 479 p. Experience of leading life insurance companies with regard to specially haz- ardous occupations and groups of per- Oliver, Thomas. Dangerous trades: the historical, social, and legal aspects of industrial occu- pations as affecting health, by a number of experts; edited by Thomas Oliver. London, Mur- ray, 1902. 891 p. Authoritative discussions by specialists of international reputation. Diseases of occupation from the legislative, social, and medical points of view. London, Methuen, 1908. xix, 427 p. Comprehensive clinical and industrial descriptions. Persons, Charles E., Parton, Mabel, and Moses, Mabelle. Labor laws and their enforcement. Xew York, Longmans, 1911. "Unregulated conditions in wom- en's work," p. 131-155. Conditions of work in rubber, cordage, and twine factories, and instances of violation of health laws. Price, George M. The modern factory. New York, Wiley, 1914. xx, 574 p. Safety, sanitation, and welfare in the workplaces as affected by private effort and by legislation. Schwedtman, Ferdinand C., and Emery, James A. Accident prevention and relief. New York, National association of manu- facturers, 1911. xxxvi, 481 p. An investigation of the subject in Europe with special attention to Eng- land and Germany, with recommenda- tions for action in the United States. Thompson, W. Oilman. The oc- cupational diseases, their causa- tion, symptoms, treatment, and prevention. New York, Apple- ton, 1914. 724 p. Detailed study of causes and symp- toms, with methods of treatment and prevention. Tolman, William H., and Ken- dall, Leonard B. Safety; meth- ods for preventing occupational and other accidents and disease. New York, Harper, 1913. 422 p. The philosophy of safety, and tive descriptions of the need for and suc- cess of preventive devices. United States. Report on condi- tion of woman and child wage- earners in the United States. (Senate doc. 645, 6ist Cong., 2d sess.) Washington, Govt. print, off., 1910-1912. 19 v. Discusses the working hours and haz- ards in the cotton textile industry, clothing, glass, silk industry, and laun- dries. Report on conditions of employment in the iron and steel industry in the United States. (Senate doc. no, 62 d Cong., ist sess.) Washington, Govt. print, off., 1911-1913. 4 v. V. 3 treats of various factors affecting the health and efficiency of the working force, such as heat, speed, and severity of work. V. 4 treats of accident rates, relation of night work and long turns to accidents, and organization for safety. S^ Bureau of labor statis- tics. Bulletins. Washington, Govt. print, off., 1895- Among the bulletins containing im- portant articles on industrial safety and health are: No. 44. "Factory sanitation and labor protection." C. F. W. Doeh- ring; No. 75, "Industrial hygiene," G. M. Kober; No. 79, "Mortality from consumption in dusty trades," F. L. Hoffman; No. 86, " Phosphorus poison- ing in the match industry in the United States," J. B. Andrews; No. 90, "Fatal accidents in coal mining," F. L. Hoff- man; No. 95, "Industrial lead pois mg n; No. 95, Industrial lead poison- ," T. Oliver, "White lead industry in the United States," A. Hamilton, " Deaths from industrial lead poisoning," J. B. Andrews; No. 100, "List of in- dustrial poisons," compiled for the In- ternational association for labor legis- lation by T. Sommerfeld and R. Fischer; No. 104, "Lead poisoning in potteries, tile works, and porcelain enameled sani- tary ware factories," A. Hamilton; No. 1 20, "Hygiene of the painter's trade," A. Hamilton; No. 127, "Dan- gers to workers from dusts and fumes, and methods of protection," W. C. Hanson; No. 141, "Lead poisoning in the smelting and refining of lead,' A. Hamilton; No. 157, "Industrial acci- dent statistics," F. L. Hoffman; No. 165, "Lead poisoning in the manufacture of storage batteries," A. Hamilton; No. 179, "Industrial poisons used in the rub- ber industry," A. Hamilton; No. 188, "Report of British departmental com- mittee on the danger in the use of lead in the painting of buildings"; No. 207, "Causes of death by occupation," L. 1. Dublin; No. 209, "Hygiene of the print- ing trades," A. Hamilton, C. H. Verrill; No. 219, "Industrial poisons used or pro- BIBLIOGRAPHY duced in the manufacture of explosives," A. Hamilton; No. 231, " Mortality from respiratory diseases in dusty trades," F. L. Hoffman; No. 234, "The safety move- ment in the iron and steel industry, 1907 to 1917." L. W. Cheney, H. S. Hanna; No. 249, "Industrial health and effi- ciency; final report of the British health of munition workers committee"; No. 251, "Preventable death in cotton manu- facturing industiy," A. R. Perry; No. 253, "Women in the lead industries," A. Hamilton; No. 267, "Anthrax as an occupational disease," J. B. Andrews. Monthly labor review. Washington, Govt. print, off., Summarizes current studies of in- dustrial accidents and occupational Bureau of mines. Bulle- tins and technical papers. Wash- ington, Govt. print, off., 1910- Especially valuable are the following technical papers: No. 40, "Metal mine accidents in the United States during . . . 1911," A. H. Fay; No. 46, "Quarry accidents in the United States during . . . 1911." A. H. Fay; and No. 48, "Coal mine accidents m the United States, 1896-1912," F. W. Horton. Bulletin No. 333. "Coal mine accidents; their causes and prevention," C. Hall and W. O. Snelling, is also noteworthy. VIII. SOCIAL INSURANCE Alden, Percy. Democratic Eng- land. New York, Macmillan, 1912. xii, 271 p. Accounts of insurance against sickness and old age in England, together with references to insurance legislation in Australia, p. 122-165. American association for labor legislation. American labor leg- islation review. Quarterly, 1 911- P resents, up-to-date material on de- velopments in various branches of social insurance. V. 3, no. 2, June, 1913, "So- cial insurance"; v. 5, no. i, March, 1915, "Workmen's compensation"; v. 6, no. I, March. 1916, "Health insurance"; v. 6, no. 2, June, 1916, "Brief for health insurance"; v. 7, no. I, March, 1917, "Health insurance"; v. 7, no. 4, Dec., 1917, "Health insurance; a positive statement in answer to opponents"; v. 8, no. I, March, 1918, pt. iv, "Problems and methods of investigating commis- sions"; v. 8, no. 2, June, 1918, "Second national conference of health insurance commissioners"; v. 9, no. i, March, 1919. pt. v, "Workmen's compensation for cripples." . .Present status of unem- ployment insurance: prepared by the German imperial statistical bureau. (American labor legis- lation review, May, 1914, v. 4: 373-387-) Tabular summary of European laws, number of persons covered, and amount of benefits paid. Standards for workmen's compensation laws. Revised ed. Feb., 1920. Essential features of satisfactory law, with annotations showing states already possessing such provisions. Three years under the New Jersey workmen's compensation law. (American labor legislation review, Mar., 1915, v. 5:31-102. Also reprint.) Striking picture of inadequacy due to court method of administration, lack of security for payments, and low scale of compensation. American medical association. Social insurance. Report of the Special committee of the Ameri- can medical association for 1919. Chicago, Council on health and public instruction of the Ameri- can medical association, 1919. 59 P- Treats sickness as a social problem and discusses universal workmen's health in- surance as a means of distributing the cost and providing improved medical care. Urges physicians to take C9nstruc- tive part in shaping pending legislation : Andrews, John B. Limitations of occupational disease compensa- tion. (American labor legislation review, Dec., 1918, v. 8:311-315. Also reprint.) Shows that inclusion of occupational diseases under workmen's compensation laws would meet only slight fraction of the sickness among wage-earners. Bailward, W. A. Some impres- sions of the first six months' working of compulsory insurance against unemployment in Eng- land. (Quarterly bulletin of the International association on un- employment, April, 1914, v. 4: 480-499.) Interesting study of operation of Eng- lish act and of problems arising under it. S 2o PRINCIPLES OF LABOR LEGISLATION Beveridge, William H., and Rey, C. F. State unemployment in- surance in the United Kingdom. (Quarterly bulletin of the Inter- national association on unem- ployment, Jan., 1914, v. 4:129- 187.) Detailed statistical study of operations under the act. Blanchard, Ralph H. Liability and compensation insurance. New York, Appleton, 1917. xii, 394 P- Excellent analysis of existing work- men's compensati9n legislation and ad- ministrative practice. Strong argument for more liberal standards and wider application of the laws. British medical association. In- surance acts committee. In- terim report on the future of the insurance acts. London, 1917. 12 p. Based on replies to questionnaire sent to each branch of the association. Shows wide agreement among physicians on beneficial results of health insurance act and suggestions for its expansion. California. Social insurance commission. Report of the Social insurance commission of the state of California. Sacra- mento, 1917. 339 p. First official American report on the subject. On data secured through two years' study the commission finds for compulsory, contributory, non-commer- cial system. Carstens, C. C. Public pensions to widows with children; a study of their administration in several American cities. New York, Russell Sage foundation, 1913. 36 p. An adverse analysis of the workings of widows' pensions in several states and cities, with suggestions for other methods of meeting the problem. An advance report by Mr. Carstens appeared in the Survey, Jan. 4, 1913. v. 29: 459-466. Coman, Katharine. Unemploy- ment insurance: a summary of European systems. New York, Progressive natl. serv., 1915. 21 p. (Also Survey, 1913-1914.) ^Discusses briefly the Ghent system, Norway, Denmark, France, and Great Britain. Congres international des assur- ances sociales. Rapports. Par- is, 1889; Berne, 1891; Milan, 1894; Brussels, 1897; Paris, 1900; Dtisseldorf, 1902; Vienna, 1905; Rome, 1908; The Hague, 1910. The name of this congress has gone through several changes. The name given is the latest. The proceedings contain valuable articles by specialists in the field in English, French, and German. ....... .Comite permanent. Bul- letin des assurances sociales. Paris, 1889- Contains articles of specialists, in Eng- lish, French, and German. Dawson, William H. Social in- surance in Germany, 1883-1911. New York, Scribner, 1912. xi, 283 p. An up-to-date historical and critical treatise on social insurance legislation in Germany, with special emphasis on pre- vention. Devine, Edward T. Report of an investigation of matters relating to the care, treatment, and relief of dependent widows with de- pendent children in the city of New York. New York, The com- mittee, 191.1. 58 p. Recommends social insurance to pre- vent commitment of children. Eastman, Crystal. Work-acci- dents and the law. New York, Charities publication committee, 1910. xvi, 345 p. A study of the causes of industrial ac- cidents, and the remuneration therefor, in Allegheny county, Pa., in 1906-1907, with argument for a more just law. Fabian research department. Committee of enquiry. The working of the insurance act. (New statesman, Mar. 14, 1914, v. 2, no. 49, special supplement. 32 p.) Discusses operation of the health in- surance part of the British national in- surance act, points out shortcomings, and suggests important improvements. Frankel, Lee K., and Dawson, Miles M. Workingmen's in- surance in Europe. New York, Charities publication committee, 1910. xviii, 447 p. A study of insurance systems in force in Great Britain, Holland, Belgium, France, Switzerland, the Scandinavian countries, Italy, Germany, Austria, with numerous tables. Convenient for refer- ence and international comparison. Friedensburg, Ferdinand. The practical results of workingmen's BIBLIOGRAPHY 521 insurance in Germany. Trans- lated from the German by Louis H. Gray. New York, The work- men's compensation service and information bureau, 1911. 62 p. (Published originally in Zeit- schrift fur politik, Berlin, 1911, v. 4:329-369-) A severe attack on the German system. Fuerth, Henriette. Die Mutter- schaftsversicherung. Jena, Fisch- er, igil. 220 p. A presentation of the case for mater- nity insurance and a resume of maternity insurance legislation in all countries. Gibbon, I. G. Medical benefit; a study of the experiences of Ger- many and Denmark. London, King, 1912. xv, 296 p. A critical work on the health insur- ance laws of Germany and Denmark, their operation, and benefits resulting from them. Unemployment insurance. London, King, 1911. xvi, 354 p. A study of the various schemes of unemployment insurance in continental Europe, with the author's conclusion of the necessity of state voluntary un- employment insurance. The advisability of encouraging the formation of private voluntary insurance associations, and of labor exchanges to cooperate with the state system, is discussed. Great Britain. Board of trade. Unemployment insurance. First report on the proceedings of the Board of trade under part II of the National insurance act, 1911. London, Darling, 1913. 82 p. A complete descriptive and statistical statement of the operation of national unemployment insurance in Great Brit- ain during the year ending July, 1913- Sixteenth abstract of la- bour statistics of the United Kingdom. London, 1913. "Un- employment insurance," p. 12- 21 ; Seventeenth abstract, p. 169- Unemployed benefits of trade unions. London, 1911. 327 P- Gives unemployed benefits of trade unions and earnings in insured trades, with tables showing the rules and ex- penditure of trade unions in respect of unemployed benefits and also showing earnings in the insured trades. Unemployment insurance (umpire regulations). London, Eyre and Spottiswoode, 1912. 6 p. Contains regulations, dated March 26, 1912, made by the Board of trade under section 91 of the National insur- ance act, 1911. Unemployment insurance. Regulations made by the Board of trade under part II of the National insurance act, 1911. London, Eyre and Spottiswoode, 1912. 27 p. Decisions given by the um- pire respecting claims to benefit. London, Darling, 1914. v. i, 327 P. Departmental commit- tee on sickness benefit claims under the national insurance act. Report. London, Unwin, 1914. 87 p. Excellent report upon the alleged ex- cessive claims on the sickness benefit funds, with an analysis of causes and suggestions for readjustment. National health insur- ance joint committee. Re- ports on the administration of the national insurance act, part I, health insurance. London, Dar- ling, 1912-1913, 1913-1914- Detailed descriptive and statistical reports on numbers insured, methods of operation, finances, and administrative problems. Halsey, Olga S. Compulsory un- employment insurance in Great Britain. (American labor legis- lation review, June, 1915, v. 5: 265-278.) Workings of English act. Henderson, Charles Richmond. Industrial insurance in the United States. Chicago, University of Chicago press, 1911. x, 454 p. A revised and enlarged version of the author's Die Arbeiterversicherung in den Vereinigten Staaten von Nord America, Berlin, 1907. Describes the various forms of social insurance known in the United States and Canada. Contains a summary of European laws on working- men's insurance against accident, sick- ness, invalidity, and old age, with statis- tics to 1911. Illinois. Health insurance com- mission. Report of the health insurance commission. Spring- field, 1919. viii, 647 p. Valuable first-hand investigation into sickness, including its economic results 522 PRINCIPLES OF LABOR LEGISLATION and the experience under existing insur- ance plans. Kennedy, James Boyd. Bene- ficiary features of American trade unions. Baltimore, Johns Hop- kins press, 1908. 126 p. Description of benefit systems of American trade unions. Massachusetts. Commission on old age pensions, annuities, and insurance. Report. Bos- ton, 1910. 409 p. The report covers the origin of old age pensions, foreign systems, proposed plans and their estinated costs. The commis- sion concludes that it would be inexpe- dient for an individual state to adopt a system of old age pensions, and that only national legislation can prove effective. Commission on pen- sions. Report. House doc. no. 2450. Boston, 1914. 345 p. Describes pension systems in effect in Massachusetts and other states, with an investigation of probable costs. Recom- mends a compulsory contributory pen- sion system for employees in the public service. Nassau, Mabel. Old age poverty in Greenwich village; a neighbor- hood study. New York, Revell, 1915. 105 p. Description of 100 individuals over 60 years of age, a study of the effects of dependency where it exists, and argu- ments in favor of an old age pension sys- tem, contributed to by the state, em- ployers, and some employees. New York. State commission on relief for widowed moth- ers. Report. Albany, Lyon, 1914. 584 p. A careful study of the provisions for the support of dependent widows and children in New York state and in European countries. Recommendations for county boards of child welfare with power to grant allowances to deserving widows with children. New York state federation of labor. Reports on health in- surance. 1918- These pamphlets present the attitude of a state federation of labor which has given long and careful study to the sub- ject. No. I. "Official endorsement of the New York state federation of labor." No. 2, "Discussion of bill." No. 3, "Advantages to industry." No. 4, "A demand for the passage of a health in- surance law." No. 5, "Progress toward health insurance legislation." No. 6, "Opposition attempts to mislead work- ers." No. 7, "Digest of the speech of Hon. Frederick M. Davenport on April 10, 1919. immediately preceding the pas- sage of labor's bill." New Zealand. Government in- surance department. A brief survey of New Zealand's state life insurance. Wellington, 1906. 36 p. Description of regulations and manage- ment of the department, with tables. Ohio. Health and old age in- surance commission. Health, health insurance, old age pen- sions; report, recommendations, dissenting opinions. Columbus, 1919. xiii, 448 p. Approves compulsory contributory health insurance, carried exclusively through mutual funds and associations, as a means of distributing the cost of sickness. Pennsylvania. Commission on old age pensions. Report on old age pensions. Harrisburg, 1919. 294 p. Careful study of old age dependency in the state, showing urgency of problem and examining possible methods of meet- ing it. ___ Pigou, Arthur Cecil. Unemploy- ment. New York, Holt, 1913. 256 p. "Unemployment insur- ance," p. 203-228. Popular statement of subject. Rhodes, J. E M 2d. Workmen's compensation. New York, Mac- millan, 1917. 300 p. Traces development of workmen's compensation legislation in the United States, with special reference to insur- ance, administration, and constitution- ality. Rubinow, I. M. Social insurance, with special reference to Amer- ican conditions. New York, Holt, 1913. vii, 525 p. Study of the social results of industria accident, sickness, old age, invalidity death, and unemployment, with the principles and development of social in- surance against these contingencies. Standards of health insur- ance. New York, Holt, 1916. 322 p. Brisk and progressive discussion of such points as the justice of compulsion, coverage, amount of medical and cash benefit, and exclusion of commercial in- surance companies. Schloss, David F. Insurance against unemployment. London, King, 1909. x, 132 p. Suggestions for organizing a national BIBLIOGRAPHY 523 system of unemployment insurance, by legislation of 1913, are given, with sum- trades, in cooperation with labor regis- maries of all foreign laws. No. 155, on tnes. "Compensation for accidents to em- Schwedtman, Ferdinand C., and ployees of the United States " is a report Emery, James A. Accident ore- ?L per M ions c un ^ er ^ e act of *1 ay 3 ?' vention and relief. New York, ^^\*^^*?S$?l National association of manu- 1915. No. 201 is a report on statistics facttirers TOTT xxxvi /ifir n an( * compensation insurance cost by a ' 4 ' * committee of the International associa- d char Seager, Henry Rogers. Social in- SUrance. New York, Macmillan, f the third annual meeting of the In- IQIO 17% O ternational association of industrial acci- A Sympathetic aiscussion of the need SS* ^^ Jf* ^^J^Sfe and the principles of social insurance and of the social ^nsu ranee ronf^ the extent to which it can and should be introduced in the United States Squier, Lee Welling. Old age compensation on woman and child labor. dependency in the United States. No - 2 4 compares the workmen's com- NPW Vnrlr Mnmnillari inro Pfnsation laws of the United States to jNew York, Macmillan, 1912. ft ec t IOI? No 243 co j lect? the work . Xll, 361 p. men's compensation legislation of 1917 The author treats of the causes of old and 1918. No. 248 presents the pro- age dependency, the efforts at relief, and ceedings of the fourth annual meeting plans for prevention, and concludes that of the International association of indus- old age pensions are the best solution for trial accident boards and commissions, the problem in the United States. ipi?- United States. Bureau of labor ........ Monthly labor review. statistics. Bulletins. Washing- Washington, Govt. print, off., ton, Govt. print, off., 1895- 191 5~ These contain much material not else- Gives digests of new workmen's com- where found. No. 90 contains sum- pensation acts, amendments, reports of mary 9f foreign compensation acts and conferences and studies dealing with an article by Miles M. Dawson on the health insurance, old age pensions, and cost of workmen's insurance in various the like. countries. No. 91 contains translati9ns ........ Workmen's insurance and of the old-age and invalidity pension benefit funds in the United States. acts of Germany and France, and a re- /^ ,,. , print of the Australian act. No. 92 Twenty-third anjnual report of on " Industrial accidents and loss of earn- the U. S. Commissioner of labor. ing power; German experience." is an Washington, Govt. print, off. elaborate analysis of accident experience of in 1897 and 1907, published too late to I X 5 -, tt , 10 P- ,. be included in the 24th annual. The Study of 1200 relief funds or insurance purpose of the study is to indicate the societies established by trade unions, by possible measures for the prevention groups of workmgmen, by employers, of accidents, medical treatment, etc. and by the last two conjointly. The No. 96 contains a translation of the final chapter treats of the legal status of industrial insurance code of Germany, benefit and relief organizations. Valu- 1911. No. 10 1 forms a study by P. L. a * e descriptive material and many Hoffman on the care of tuberculous otherwise unpublished statistics. wage-earners in Germany under the in- ........ Workmen S insurance and validity insurance act of January i, compensation systems in Europe. SJfeg?j8$& No^t Twenty-fourth annual report of a translation of the Swiss sickness and the U. S. Commissioner of labor. g^!STi&4SF?V! Washington, Govt. print, off., law relating to insurance of salaried I 99- .2 V., 2749 p._ employees in Germany, December 20, Contains extensive information on 1911. No. in on labor legislation for social insurance in Austria. Belgium, 1912 contains the compensation laws France. Germany, Great Britain. Italy. passed in that year. No. 126 contains a Norway Russia, Spam, and Sweden. review of compensation legislation in the f ext s / the laws on compensation for in- United States, with a summary of the dustnal accidents m twenty-four coun- operations of the recent laws; complete tnes - texts of all United States laws, including ........ Children's bureau. Re- 5 2 4 PRINCIPLES OF LABOR LEGISLATION port of laws relating to mothers' pensions in the United States, Denmark, and New Zealand, 1914. (Its pub., no. 7.) Wash- ington, Govt. print, off., 1914. 102 p. History and texts of laws, with concise report of their operation. Treasury department. Public health service. Health insurance; its relation to the public health. (Public health bul- letin no. 76, B. S. Warren and Edgar Sydenstricker.) Washing- ton, Goyt. print, off., 1916. 76 p. Searching statistical study of economic conditions conducing to sickness, ade- quacy of existing provisions for care and relief, benefits of universal health in- surance. Van Doren, Durand Halsey. Workingmen's compensation and insurance. New York, Moffat, Yard, 1918. viii, 332 p. Well written stimulating discussion of the history and practice of workmen's compensation, together with current problems. Special attention to insurance leads to conclusion in favor of state funds. Wisconsin. Industrial commis- sion. Report on old age relief. Madison, 1915. 76 p. Study of the condition of the aged in Wisconsin, with suggestions for volun- tary state insurance. Contains a de- scription of foreign systems of old age relief. Insurance investigation committee. Report. Madison, 1907. Majority report of the senate committee on the practi- cability of government and state insurance, iv, 52 p. Minority report of the senate committee on the practicability of gpvejn- ment and state insurance, ii, 18 p. (Printed separately but bound in back of joint committee report.) Majority report gives arguments for and against state life insurance, and recommends postponement. Minority report makes a vigorous argument for immediate steps toward establishing state life insurance. Wood bury, Robert M. Social in- surance; an economic analysis. New York, Holt, 1917. 171 p. Finds that the possible disadvantages of economic burden, decrease in thrift, and increase in accidents, are relatively unimportant and are outweighed by the gains through compulsory insurance. IX. ADMINISTRATION American association for labor legislation. American labor legislation review. Quarterly, 1911- Issues which have dealt especially with administration are v. 2, no. 4, Dec., 1912, "Immediate legislative program"; v. 3, no. 4, Dec., 1913, "Administration of labor laws"; v. 7. no. 2, June, 1917, "Labor law administration in New York"; v. 9, no. 3, Sept., 1919, "The peace treaty and the labor legislation program." American bar association. Spe- cial committee on legislative drafting. Report. (Senate doc. 262, 63d Cong., 2d sess.) Wash- ington, Govt. print, off., 1913. Andrews, John B., and Andrews, Irene Osgood. Scientific stand- ards in labor legislation. (Amer- ican labor legislation review, June, 1911, v. i, no. 2:123-134.) Defects of early legislation and ad- vantages of advisory board method. Bourgeois, Leon. The interna- tional organization of social poli- cies. (American labor legislation review, March, 1914, v. 4:186- 202.) Necessity for international cooperation in labor legislation. Brown, Edward F. The efficiency of present factory inspection machinery in the United States. (American labor legislation re- view, Feb., 1013, v. 3:24-28. Inadequacy of then existing adminis- trative agencies. Calder, John. Scientific accident prevention. (American labor leg- islation review, Dec., 1911, V. I, no. 4:14-24.) Emphasizes need for cooperation be- tween employer, employee, an^ e.igineer- ing expert. Commons, John R. Labor and administration. New York, Mac- millan, 1913. vii, 431 p. BIBLIOGRAPHY 525 Essays on various labor questions, the last in the book taking up the subject of administration in connection with the Wisconsin workmen's compensation act. The industrial commission of Wisconsin. ^ (American labor legislation review, Dec., 1911, V. I, no. 4:61-69.) Principles of commission plan. ........ How the Wisconsin indus- trial commission works. (Amer- ican labor legislation review, Feb., 1913, v. 3:9-14.) Operation of commission plan. Gettemy, Charles F. The Massa- chusetts bureau of statistics, 1869-1915; a sketch of its his- tory, organization, and functions, together with a list of its publica- tions and illustrative charts. Boston, 1915. 115 p. Written by the director in connecti9n with the exhibit of the bureau of statis- tics at the Panama-Pacific exposition. Goodnow, Frank J. Comparative administrative law; an analysis of theadministrativesystems, nation- al and local, of the United States, England, France, and Germany. New York, Putnam, 1897. 2 v. Detailed comparative account of the organization and working of the admin- istration in these countries, describing also the relations between the adminis- trative, judicial, and legislative branches of government. International association for labor legislation. Publications. In addition to the Bulletin of the international labor office, published monthly in English, in French, and in German, the fifteen national sections, including that in America, issue periodi- cally reports on labor legislation and its administration. Kaiser, John Boy n ton. Law, leg- islative, and municipal reference libraries. Boston, Boston book co., 1914. Comprehensive exposition of the legis- lative drafting research movement. Kingsbury, Susan M. (cd.). La- bor laws and their enforcement, with special reference to Massa- chusetts. New York, Longmans, Green, 1911. xxii, 419 p. Historical and critical studies on the administration of labor laws in Massa- chusetts, special chapters being devoted to woman and child labor and employ- ment offices. McNeill, Joseph H. The Massa- chusetts board of boiler rules. (American labor legislation re- view, Dec., 1911, v. i, no. 4:70- Description of the joint board plan and its operation. United States. Report on condi- tion of woman and child wage- earners in the United States. (Senate doc. 645, 6ist Cong., 2d sess.) V. 19, " Labor laws and factory conditions." Washing- ton, Govt. print, off., 1912. 1125 p. Summary of laws on child labor, safety, health, and comfort, and study of their enforcement. Senate hearings on a legis- lative drafting bureau and legis- lative reference division of the library of Congress. (Senate rept. no. 1271, 62d Cong., 3d sess.) Washington, Govt. print, off., 1911. Testimony of experts from all parts of the country. Bureau of labor statis- tics. Bulletins. Washington, Govt. print, off., 1895- Espeaally concerned with administra- tion of labor legislation are: No. 142, "Administration of labor laws and fac- tory inspection in certain European countries," George M. Price; No. 211, "Labor laws and their administration in the Pacific states," Hugh S. Hanna; No. 254, " International labor legislation and the society of nations," Stephan Bauer. Monthly labor review. Washington, Govt. print, off., 19*5- Reviews reports of federal, state, and foreign bureaus administering labor laws. Children's bureau. Pub- lications. Washington, Govt print, off., 1913- Issues give investigations of adminis- tration of child labor laws in Connecti- cut, New York, Maryland, and other states. Commission on indus- trial relations. Final report. Washington, 1915. 448 p. "Re- port of commissioners John R. Commons and Florence J. Ham- man," p. 307-403- Breakdown of existing labor laws and proposals for securing more thorough enforcement. TABLE OF CASES CITED In the following table of cases, wherever possible, the refer- ence to the official (state, circuit court, or United States) re- port is given first; for the convenience of those to whom the official reports are inaccessible, references to the unofficial (sectional, federal, supreme court, etc.) reports are added. Aberthaw Construction Co. v. Cameron, 194 Mass. 208, 80 N. E. 478 (1907) 104 Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277 (1908) 113 Adams v. Brenan, 177 111. 194, 52 N. E. 314 (1898) 180 Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662 (1917) 296 Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct. 3 (1904) 97 Albro J. Newton Co. v. Erickson, 70 Misc. 291, 126 N. Y. Supp. 949 (1911) 105 Allis-Chalmers Co. v. Iron Molders, 150 Fed. 155 (1906) ; 166 Fed. 45 (1908) in Almand v. Scott, 80 Ga. 95, 4 S. E. 892 (1888) 64, 65 American Steel & Wire Co. v. Wire Drawers, 90 Fed. 598 (1898) . in Arkansas Stave Co. v. State, 94 Ark. 27, 125 S. W. 1001 (1910). . 51 Arthur v. Oakes, n C. C. A. 209, 63 Fed. 310 (1894) 45, 106 Atchison, T. & S. F. R. Co. v. Gee, 139 Fed. 582 (1905) 109 Atkin v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124 (1903) 217, 263 Atlanta v. Stein, in Ga. 789, 36 S. E. 932 (1900) 180 Avent-Beattyville Coal Co. v. Commonwealth, 96 Ky. 218, 28 S. W. 502 (1894) 29 Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 145 (1910) 43, 44 Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621 (1911) 264 Barnes v. Berry, 157 Fed. 883 (1908) 107, 117 Barnes v. Typographical Union, 232 111. 402, 424, 83 N. E. 932, 940 (1908) no Barr v. Essex Trades' Council, 53 N. J. Eq. 101, 30 Atl. 881 (1894) 98 Bausbach v. Rieff, 237 Pa. 482, 85 Atl. 762 (1912). 105 528 PRINCIPLES OF LABOR LEGISLATION Beattie v. Callanan, 67 App. Div. 14, 73 N. Y. Supp. 518; 82 App. Div. 7, 81 N. Y. Supp. 413 (1901-3) 105 Beck v. Railway Teamsters, 118 Mich. 497, 77 N. W. 13 (1898). .no Beekman v. Marsters, 195 Mass. 205, 80 N. E. 817 (1907) 109 Berry v. Donavan, 188 Mass. 353, 74 N. E. 603 (1905) 98, 104 Bixby v. Dunlap, 56 N. H. 456 (1876) 109 Blanchard v. District Council, 78 N. J. 737, 71 Atl. 1131 (1909). .104 Booth v. Burgess, 72 N. J. Eq. 181, 65 Atl. 226 (1906) 104 Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062 (1892) 65 Boyer v. Western Union, 124 Fed. 246 (1903) 114 Brace v. Evans, 5 Pa. Co. Ct. 163 (1888) 102 Brennan v. United Hatters, 73 N. J. 729, 65 Atl. 165 (1906) 104 Brown v. Piper, 91 U. S. 37 (1875) 461 Bunting v. Oregon, 243 U. S. 246, 37 Sup. Ct. 435 (1917) 268 Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S. W. 136 (1906) .117 Butterfield v. Forester, n East 60 (England, 1809) 390 Butterick Pub. Co. v. Typographical Union, 50 Misc. i, 100 N. Y. Supp. 292 (1906) in Casson v. Mclntosh, 199 Mass. 443, 85 N. E. 529 (1908) 104 Chaffee v. United States, 18 Wall. 516 (1873) 492 Chase v. McDonnell, 24 111. 237 (1860) 65 Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 31 Sup. Ct. 259 (1911) 34, 458 Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275 (1911) 377 Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197 (1902) 180 Clyatt v. United States, 197 U. S. 207, 25 Sup. Ct. 429 (1904). . .37, 39 Cohen v. Garment Workers, 35 Misc. 748, 72 N. Y. Supp. 341 (1901) 108 Cohn & Roth Electrical Co. v. Bricklayers, 92 Conn. 161, 101 Atl. 659 (1917) 104 Commonwealth v. Beatty, 15 Super. Ct. (Pa.) 5 (1900) 245 Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (1876). . . .244 Commonwealth v.. Hunt, 4 Metcalf in (1842) 94 Commonwealth v. Lancaster Mills, 212 Mass. 315, 98 N. E. 864 (1912) 59 Conners v. Connolly, 86 Conn. 641, 86 Atl. 600 (1913) 104 Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431 (1902) 477 Coppage v. Kansas, 236 U. S. i, 35 Sup. Ct. 240 (1915) .30, 114, 119 Cornellier v. Haverhill Shoe Mfrs. Assn., 221 Mass. 554, 109 N. E. 6 43 (i9 I 5) 104 TABLE OF CASES CITED 529 Coronado Coal Co. v. United Mine Workers (Circuit Court of Appeals, 1919) 121 Ex parte Crane, on Habeas Corpus, Crim. 560 (California, 1914) . 85 Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554 (1911) 397 Curran v. Gallen, 152 N. Y. 33, 46 N. E. 297 (1897) 105 Cutting v. Cox, 19 Vt. 517 (1847) 65 Danbury hatters' case. See Loewe v. Lawlor. Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899 (1905) .357 Davis Machine Co. v. Robinson, 41 Misc. 329, 84 N. Y. Supp. 837 (1903) 109 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900 (1895) 96 Delaware, L. & W. R. Co. v. Switchmen, 158 Fed. 541 (1908) ... 107 De Minico v. Craig, 207 Mass. 593, 94 N. E. 317 (1911).. .103, 104 Ex partc Dickey, 144 Cal. 243, 77 Pac. 924 (1914) 295 Doremusy. Hennessy, 176 111. 608,52 N.E.924, 54 N. E. 524(1898) 98 Dowd v. United Mine Workers, 148 C. C. A. 495, 235 Fed. i (1916) 121 Ellis v. United States, 206 U. S. 246, 27 Sup. Ct. 600 (1907) 250 Empire Theater Co. v. Cloke, 53 Mont. 183, 163 Pac. 107 (1917). in Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 509, 50 S. E. 353 (1905) 109 Epperson^. Howell, 28 Ida. 338, 154 Pac. 621 (1916) 317 Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327 (1903) 105 Erie R. Co. v. New York, 233 U. S. 671, 34 Sup. Ct. 756 (1914) 265, 272 Evansville Hoop and Stave Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 549 (1908) 353 Everett-Waddey Co. v. Typographical Union, 105 Va. 188, 53 S. E. 273 (1906) in, 112 Farwell v. Boston & W. R. Co., 4 Metcalf (Mass.) 49 (1842) .388, 389 Fell v. Berry, 124 App. Div. 336, 108 N. Y. Supp. 669 (1907) 117 Fiske v. People, 188 111. 206, 58 N. E. 985 (1900) 180 Florida Central R. Co. v. Reynolds, 183 U. S. 471, 22 Sup. Ct. 176 (1902) 492 Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 (1911) 104 Foster v. Retail Clerks, 39 Misc. 48, 78 N. Y. Supp. 860 (1902) 98 108, in Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152 (1901) 109, 112 Franklin v. United Railways & Electric Co. of Baltimore, Balto. Common Pleas Ct., April 27, 1904 397 Franklin Union v. People, 220 111. 355, 77 N. E. 176 (1906) no 530 PRINCIPLES OF LABOR LEGISLATION George Jonas Glass Co. v. Glass Bottle Blowers, 72 N. J. Eq. 653, 66Atl. 953 (1907); 7?N. J. Eq. 219, 79Atl. 262 (i9ii).io9, no Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354 (1886) 244 Goldfield Mines Co. v. Miners' Union, 159 Fed. 500 (1908) 112 Grant Bros. Construction Co. v. United States, 232 U. S. 647, 34 Sup. Ct. 452 (1914) 73 Greenlee v. Southern R. Co., 122 N. C. 977, 30 S. E. 115 (1898). 375 Grisson v. Pickett, 98 N. C. 54, 3 S. E. 921 (1887) 65 Haley v. Chicago & N. R. Co., 21 la. 15 (1866) 390 Hall v. Johnson, 87 Ore. 21, 169 Pac. 515 (1917) no Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529 (1918) 336 Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180 (1886) 64 Hanson v. Innis, 211 Mass. 301, 97 N. E. 756 (1912) 104 Harrison v. Ricks, 71 N. C. 7 (1874) 64 Haskins v. Royster, 70 N. C. 601 (1874) 109 Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255 (1917) 398 Hitchman Coal & Coke Co. v. Mitchell, 202 Fed. 512 (1912); 245 U. S. 229, 38 Sup. Ct. 65 (1917) 109, 113 Holcombe v. Creamer, 231 Mass. 99, 120 N. E. 354 (1918) 219 Holden v. Alton, 179 111. 318, 53 N. E. 556 (1899) 180 Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 (1898). .27, 28, 245, 266, 462, 464 Hopper v. Haines, 71 Md. 64, 18 Atl. 29, 20 Atl. 159 (1889) 65 House Painters v. Feeney, 13 Pa. Dist. 335 (1904) 105 Hudson v. Cincinnati, N. O. & T. P. R. Co., 152 Ky. 711, 154 S. W. 47 (1913) 117 Ideal Mfg. Co. v. Ludwig, 149 Mich. 133, 112 N. W. 723 (1907) . . no Inge v. Board of Public Works of Mobile, 135 Ala. 187, 33 So. 678 (1902) 180 Interstate Commerce Commission v. U. S. ex rel. Humboldt Steam- ship Co., 224 U. S. 474, 32 Sup. Ct. 556 (1911) 20 Iverson v. Dilno, 44 Mont. 270, 119 Pac. 719 (1911) 108 Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431 (1911) 28, 397 Jacobs v. Cohen, 183 N. Y. 207, 76 N. E. 5 (1905) 105, 117 In re Jacobs, 98 N. Y. 98 (1885) 367, 464 Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391 (1902) . 108 Jersey Printing Co. v. Cassidy, 63 N. J. Eq. 759, 53 Atl. 230 (1902) 112 Johnson t>. Goodyear Mixing Co., 127 Cal. 4, 59 Pac. 304 (1899) . . 52 Jones v. Van Winkle, 131 Ga. 336, 62 S. E. 236 (1908) in TABLE OF CASES CITED 531 Ex parte Jones, 71 W. Va. 567, 77 S. E. 1029 (1913) 21 Josma v. Western Steel Car & Foundry Co., 249 111. 508, 94 N. E. 945 (1911) 3 oi Journeymen tailors' case, 8 Mod. (England, 1721) 93 Kealey v. Faulkner, 18 (Ohio) Superior and Common Pleas De- cisions 498 (1908) I0 2 Kelly v. Rummerfield, 117 Wis. 620, 94 N. W. 649 (1903) 65 Kemp v. Div. No. 241 Amal. Ass'n of Street and Electric Ry. Em- ployees, 255 111. 213, 99 N. E. 389 (1912) 105 Keoleg v. Phelps, 80 Mich. 466, 45 N. W. 350 (1890) 65 Kimpton v. Broason, 45 Barb. 625 (1866) 35 Knickerbocker Ice Co. v. Stewart (U. S. Supreme Ct., May 17, 1920) 402 Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. i (1901) . 33 Knudsen v. Benn, 123 Fed. 636 (1903) no Kolley v. Robinson, 109 C. C. A. 247, 187 Fed. 415 (1911) no Kroger Grocery & Baking Co. v. Retail Clerks, 250 Fed. 890 (1918) 96 Larsen v. Rice, 100 Wash. 642, 171 Pac. 1037 (1918) 219 Lenahan v. Pittson .Coal Mining Co., 218 Pa. 311, 67 Atl. 642 (1907) 338 Levy v. Rosenstein, 66 N. Y. Supp. 101 (1900) 112 Lewis v. Detroit Board of Education, 139 Mich. 306, 102 N. W. 756 (1905) 180 Lindsay & Co. v. Montana Federation of Labor, 37 Mont. 264, 96 Pac. 127 (1908) 102, 108 Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539 (1905) . . 268, 460 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908); 235 U. S. 522, 35 Sup. Ct. 170 (1915) 96, 107, 108, 121 Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S. W. 997 (1908) 108 Louisville, H. & St. L. R. Co. v. Lyons, 155 Ky. 396, 159 S. W. 971 (1913) 338 Low v. Reese Printing Co., 41 Neb. 127, 59 N. W. 362 (1894) 269 McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206 (1909) 33, 53, 463 Magee v. Chicago & N. R. Co., 82 la. 249, 48 N. W. 92 (1891) . . .388 Malette v. City of Spokane, 77 Wash. 205, 137 Pac. 496 (1913). .218 Marbury v. Madison, i Cranch 137 (1803) 23 Marshall & Bruce Co. v. Nashville, 109 Term. 495, 71 S. W. 815 (1902) 180 Mathews v. People, 202 111. 389, 67 N. E. 28 (1903) 300 Matthews v. Shankland, 25 Misc. 604, 56 N. Y. Supp.i23 (1898) . 108 532 PRINCIPLES OF LABOR LEGISLATION Maxwell v. Reed, 7 Wis. 582 (1859) 217 Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342 (1915) 246, 465 Millett v. People, 117 111. 294, 7 N. E. 631 (1886) 222 Mills v. U. S. Printing Co., 99 App. Div. 605, 91 N. Y. Supp. 185 (1904) Io8 Minneapolis, St. P. & S. Ste. M. R. Co., v. R. R. Commission of Wisconsin, 136 Wis. 146, 116 N. W. 005 (1908) 379 Minnesota rate cases. See Simpson v. Shepard. In re Morgan, 26 Colo. 415, 58 Pac. 1071 (1899) 266, 459, 464 Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260 (1917) 398 Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908) 245, 462 Murray v. South Carolina R. Co., i McMullen 385 (1841) 389 National Protective Ass'n of Steamfitters & Helpers v. Gumming, 170 N. Y. 315, 63 N. E. 369 (1002) 105 Neal v. Brandon, 70 Ark. 79, 66 S. W. 200 (1902) 65 New York Central R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247 (iQi?) 398 Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186 (1911) 28 Noe v. Layton, 69 Ark. 551, 64 S. W. 880 (1910) 65 Northern P. R. Co. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160 (1912) 266 O'Brien v. People, 216 111. 354, 75 N. E. 108 (1905) 105 O'Neil v. Behanna, 182 Pa. 236, 37 Atl. 843 (1897) no, in Otis Steel Co. v. Molders, no Fed. 698 (1901) no Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac. 1027 (1908) 100, 108 Patterson r. Trades Council, 11 Pa. Dist. 500 (1902) 105 Peel Splint Coal Co. v. State, 36 W. Va. 802, 15 S. E. 1000 (1892) 29 Pennsylvania R. Co. v. Ewing, 241 Pa. 581, 88 Atl. 775 (1913).. .377 Pennsylvania R. Co. v. International Coal Mining Co., 230 U. S. 184, 33 Sup. Ct. 893 (1912) 20 People v. Barondess, 133 N. Y. 649, 31 N. E. 240 (1892) 105 People v. Chas. Schweinler Press, 214 N. Y. 395, 108 N. E. 639, ( J 9i5) 273, 276, 461, 463, 477 People v. Elerding, 254 111. 579, 98 N. E. 982 (1912) 247 People v. Erie R. Co., 198 N. Y. 369, 91 N. E. 849 (1910) 265 People v. Ewer, 141 N. Y. 129, 36 N. E. 4 (1894) 230 People v. Fisher, 14 Wendell 9 (1835) 94 People v. Klinck Packing Co., 214 N. Y. 121, 108 N. E. 278 (1915) 281, 283 TABLE OF CASES CITED 533 People v. Kostka, 4 N. Y. Crim. 429 (1886) 107 People v. Lochner, 177 N. Y. 145, 69 N. E. 373 (1904) 268 People v. McFarlin, 43 Misc. 591, 89 N. Y. Supp. 527 (1904) 105 People v. New York C. & H. R. R. Co., 163 App. Div. 79, 148 N. Y. Supp. 495 (1914) 272 People v. Radt, 15 N. Y. Crim. 174, 71 N. Y. Supp. 846 (1900) . . 108 People v. Ruggles, 8 Johnson (N. Y.) 289, 5 Am. Dec. 335 (1811) 256 People v. Schenck, 257 111. 384, 100 N. E. 994 (1913) 363 People v. Weinsheimer, 117 App. Div. 603, 102 N. Y. Supp. 579 (1907) 105 People v. Williams, 189 N. Y. 131, 81 N. E. 778 (1907) 276, 459 People v. Wilzig, 4 N. Y. Crim. 403 (1886) 107 People ex rel. Armstrong v. Warden of the City Prison of New York, 183 N. Y. 223, 76 N. E. n (1905) 295 People ex rel. Cossey v. Grout, 179 N. Y. 417, 72 N. E. 464 (1909) 238 People ex rel. Williams Eng. & Cont. Co. v. Metz, 193 N. Y. 148, 85 N. E. 1070 (1908) 263 Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753 (1906) 104 Pierce v. Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909) 100, 108, no Plant v. Woods, 176 Mass. 492, 57 N. E. ion (1900) 104 Pope Motor Car Co. v. Keegan, 150 Fed. 148 (1906) in Priestly v. Fowler, 3 Meeson & Welsby i, 6 (England, 1837) . . 387, 389 Purvis v. Carpenters, 214 Pa. 348, 63 Atl. 585 (1906) 105 Randall v. Ditch, 123 la. 582, 99 N. W. 190 (1904) 65 Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457 (1908) 104 Riley v. Commonwealth, 232 U. S. 671, 34 Sup. Ct. 469 (1914). .242 Ex parte Riley, 94 Ala. 82, 10 So. 528 (1891) 43 Ritchie v. People, 155 111. 98, 40 N. E. 454 (1895) 245, 460, 464 Ritchie v. Wayman, 244 111. 509, 91 N. E. 695 (1910) ... 28, 246, 460 Robertson v. Baldwin, 165 U. S. 287, 17 Sup. Ct. 326 (1897). ... 44 Ruddy v. Plumbers, 79 N. J. 467, 75 Atl. 742 (1910) 104 St. Germain v. Bakery Workers, 97 Wash. 282, 166 Pac. 665 (1917) IJ St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908) in Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755 (1901) 363 Schlang v. Ladies' Waist Makers, 67 Misc. 221, 124 N. Y. Supp. 289 (1910) 105 Searle Mfg. Co, v. Terry, 56 Misc. 265, 106 N. Y, Supp. 438 (1905) 105, in 534 PRINCIPLES OF LABOR LEGISLATION Shaughnessy v. Jordan, 184 Ind. 499, n N. E. 622 (1916) in Shoemaker v. Crawford, 82 Mo. App. 487 (1900) 65 Simpson v. O'Hara, 70 Ore. 261, 141 Pac. 158 (1914) 219 Simpson v. Shepard, 230 U. S. 352, 33 'Sup. Ct. 729 (1913) 265 Sinsheimer v. Garment Workers, 59 N. Y. St. 503, 28 N. Y. Supp. 321 (1894) 108 Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564 (1888) 265 Smith v. Atchison, T. & S. F. R. Co., 39 Tex. Civ. App. 468, 87 S. W. 1052 (1905) 254 Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418 (1897) 450 Snow Iron Works v. Chadwick, 227 Mass. 382, 116 N. E. 801 (1917) 104 Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 525 (1917) 402 Southern R. Co. v. Machinists, in Fed. 49 (1901) 109 State v. Barba, 132 La. 768, 61 So. 784 (1913) 270 State v. Brown & Sharpe Mfg. Co., 18 R. I. 16, 25 Atl. 246 (1892) 29, 5i State v. Buchanan, 29 Wash. 602, 70 Pac. 52 (1902) 28, 245 State v. Crowe, 130 Ark. 272, 197 S. W. 4 (1917) 219 State v. Dyer, 67 Vt. 690, 32 Atl. 814 (1894) 104 State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923; 103 Miss. 263, 60 So. 215 (1912) 269 State v. Lange Canning Co., 164 Wis. 228, 160 N. W. 57 (1916). 286 State v. Napier, 63 S. C. 60, 41 S. E. 13 (1902) 295 State v. Nicholls, 77 Ore. 415, 151 Pac. 473 (1915) 282 State v. Roberson, 136 N. C. 587, 48 S. E. 595 (1904) 295 State ex rel. Buell v. Frear, 146 Wis. 305, 131 N. W. 832 (1911) 286 State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S. E. 243 21 State ex rel. Yaple v. Creamer, 85 Ohio St. 349, 97 N. E. 602 (1912) 463 Steel v. Frick, 56 Pa. St. 172 (1867) 64 Steffes v. Motion Picture Operators, 136 Minn. 200, 161 N. W. 524 (1917) "i Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755 (1905) 338 Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914); 243 U. S. 629, 37 Sup. Ct. 475 (1917) 218, 247 Stockwell v. United States, 13 Wall. 531 (1871) 492 Ex parte Stout (Texas), 198 S. W. 967 (1917) in Strafford v. Republic Iron & Steel Co., 238 111. 371, 87 N. E. 358 (1909) 33 8 Sun Ptg. & Pub. Ass'n v. Delaney, 62 N. Y. Supp. 750 (1900) . . . 108 In re Sweitzer (Oklahoma), 162 Pac. 1134 (1917) in TABLE OF CASES CITED 535 Taff Vale case, 70 L. J. K. B. 95 (England, 1901) 123 Taylor v. Bradley, 39 N. Y. 129 (1868) 65 In re Ten Hour Law for Street Ry. Corporations, 24 R. I. 603, 54 Atl. 602 (1902) 257 Thomas v. Cincinnati, N. O. & T. P. R. Co., 62 Fed. 803 (1894) 107 Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. 730 (1893) 102 Truax v. Cooks and Waiters, 19 Ariz. 379, 171 Pac. 121 (1917) . . in Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7 (1915) 73 Tunstall . Steans Coal Co., 195 Fed. 888 (1911) 112 Union Pacific R. Co. v. Ruef, 120 Fed. 102 (1903) in United States v. Atchison, T. & S. F. R. Co., 220 U. S. 37, 31 Sup. Ct. 362 (1911) 264 United States v. Chicago, M. & P. S. R. Co., 197 Fed. 624 (1912) 264 United States v. Edgar, i C. C. A. 49, 48 Fed. 91 (1891) 72 United States v. Gay, 37 C. C. A. 46, 95 Fed. 226 (1899) 73 United States v. Kansas C. S. R. Co., 121 C. C. A. 136, 202 Fed. 828 (1913) 264 United States v. Norris, 255 Fed. 423 (1918) 96 United States v. Northern Commercial Co. & George A. Coleman (1918) ; 270 United States v. Southern Pacific Co., 136 C. C. A. 351, 220 Fed. 745 (1915) 264 Vandalia R. Co. v. Public Service Commission of Indiana, 242 U. S. 255, 37 Sup. Ct. 93 (1916) ^ 379 Vandalia R. Co. v. Railroad Commission of Indiana, 182 Ind. 382, 101 N. E. 85 (1913) 379 Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077 (1896) no Viemeister v. White, 179 N. Y. 235, 72 N. E. 97 (1904) 461 Wabash R. Co. v. Hannahan, 121 Fed. 563 (1903) 107 Walker 0..Cronin, 107 Mass. 555 (1871) 109 Wenham v. State, 65 Neb. 394, 91 N. W. 421 (1902) 245 White Mt. Freezer Co. v. Murphy, 78 N. H. 398, 101 Atl. 357 (1917) IIJ Willcut & Sons Co. v. Driscoll, 200 Mass, no, 85 N. E. 897 (1908) 104 Williams v. Evans, 139 Minn. 32, 165 N. W. 495 (1917) 2I 9 Williams v. Fears, noGa. 584, 35 S. E. 699; 179 U. S. 270, 21 Sup. Ct. 128 (1900) 295 536 PRINCIPLES OF LABOR LEGISLATION Ex parte Williams, 158 Cal. 550, in Pac. 1035 (1910) 100, no Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 289 (1917) 266 Wilson v. Stewart, 69 Ala. 302 (1881) 65 Wiseman v. Tanner, 221 Fed. 694 (1915) 296 Withy v. Bloem, 163 Mich. 419, 128 N. W. 913 (1910) 247 Wright v. Hoctor, 95 Neb. 342, 145 N. W. 704 (1914) 180 Wyeman v. Deady, 79 Conn. 414, 65 Atl. 129 (1906) 104 INDEX Accident prevention, in relation to workmen's compensation, 469. Accident reporting, need for system in, 325, 326; laws, 326, 327; statistics, 328, 329. Action of debt, used in enforcing labor laws, 492 Adamson law, 142-143; upheld, 266. Administration, in relation to in- vestigation, 20, 23, 24, 81, 450, 451; improvements, 47; of mini- mum wage laws, 205-210; of re- strictions on hours of labor, 227, 238-243; of child labor laws, 227, 342-346; of workmen's compen- sation laws, 394, 410, 411; of health insurance, 417-422; of old age insurance, 432-434; of un- employment insurance, 445, 446; in relation to legislation, 450, 466; unified and decentralized, charts, 470, 471; cooperative pressure in, 499, 500. Aeronauts, examination and regis- tration of, 352, 372; minimum age limit, 372. Agricultural holdings act (England), 66. Agriculture, workers, 61-65; credit agencies, 67; no contract labor law needed for, 72; minimum wage legislation, 189; excluded from hour legislation, 234; in re- lation to employment offices, 298, 302, 312; accidents, 328, 329; child labor, 335; excluded from workmen's compensation legisla- tion, 401. See also Land. Alabama, contract labor law, 43; agricultural tenancy law, 64, 68; picketing illegal, 110; concilia- tion and arbitration, 137; no limitation of women's hours, 231. 238. Alameda, Calif., tax to provide work for the unemployed, 317. Alaska, conciliation and arbitra- tion, 138; eight-hour law de- clared unconstitutional, 270; min- ing regulations, 371; workmen's compensation, 397; old age pen- sions, 436; mothers' pensions, 441. Alberta, strike in mines, 171. Alien contract labor. See Induced immigration. Allegheny City, Pa., ten-hour strikes, 232. Alsace-Lorraine, industrial courts, 87. Amalgamated Society of Carpen- ters, out-of-work benefits, 442. Amalgamated Society of Engineers, out-of-work benefits, 409. American Association for Labor Legislation, investigates one day of rest in seven laws, 281; work on accident reporting, 327; on occupational disease reporting, 331; on workmen's compensa- tion, 405, 411; on standards for health insurance, 427; on ad- ministration of labor laws, 452; organization, 454. American Association of Public Em- ployment Offices, 295. American Federation of Labor, ef- fect of Dan bury hatters' case on, 109; opposes compulsory arbi- tration, 171; opposes eight-hour laws, 253; opposes child labor, 334; investigates workmen's com- pensation administration, 410; in relation to unemployment in- surance, 442; investigates labor conditions, 453. American Statistical Association, in- S3 8 PRINCIPLES OF LABOR LEGISLATION dorses standard accident report- ing schedule, 327. Anarchism, development of, 26. Anarchists, forbidden to enter United States, 69. Ankylostomiasis, in mining indus- try, 331; compensation for, 396. Anthracite coal strike, arbitration in, 148, 169. Anthrax, 330, 366; compensation for, 396, 403. Apprentices, Elizabethan statute of, 41, 152. Apprenticeship, as unfree status, 3, 36; characteristics, 41, 42, 54; in relation to minimum wage, 204, 209, 214; in colonial times, 333; Wisconsin regulations for, 473. Arbitration, voluntary, 128-149; compulsory, 127, 149-160, 173; among public employees, 164, 174. Argentina, mediation and arbitra- tion, 136; minimum wage law, 194; night work of women, 274; restrictions on women's work, 347- Arizona, convict labor, 80; mini- mum wage law, 196; hours of labor for women, 239, 281; child labor, 228; hours of la oof in laundries, electric plants, and in plaster and cement mills, 262; restrictions on women's work, 347; old age pensions, 436. Arkansas, coal screening law, 33; fines from employees, 59; mini- mum wage, 205; hours of labor in saw and planing mills, 262. Assignment of wages. See Wages. Assumption of risk, 13, 14, 390, 400; in relation to child labor , 338 ; in relation to safety, 358. Australasia, eight-hour day, 154; unions in public employment, i?5, 179- See also Australia, Melbourne, New Zealand, South Australia, Tasmania, Victoria, Western Australia. Australia, state loans to farmers, 67 ; contract labor law, 73; literacy test against Chinese, 76; arbi- tration legislation, 153-158, 162- 168; labor situation, 154; mari- time strike, 155; sheep-shearers' strike, 155; parties, 161, 162, 165; constitution, 165; federal court of arbitration, 165-168; minimum wage, 187-190, 198, 206, 215; old age pensions, 436, 438. See also Australasia, Mel- bourne, New Zealand, South Australia, Tasmania, Victoria, Western Australia. Austria, wage payment laws, 52- 54; fines from employees, 59; agricultural credit, 67; emigra- tion from, 72; legal aid, 84; in- dustrial courts, 87; statistics of strikes and lockouts, 125; media- tion and arbitration, 136; coal mine accidents, 259, 369; private employment offices, 296; health requirements for industry, 321, 355. 366; health insurance, 417; maternity insurance, 423 ; old age pensions, 432; widows and or- phans' insurance, 439; represen- tation of interests, 480; adminis- tration, of social insurance, 481. B Bakeries, workers in, 54; minimum wage, 189; hours of labor, 262, 268, 460; Sunday employment forbidden, 279; health regula- tions, 352, 496. Ballot, struggle for secret, 5. Baltimore, first city eight-hour law, 25 1 - Bankruptcy laws, 61. Barbers, Sunday employment for- bidden, 279; examination and registration of, 352. Bargaining, power, inequality of, 9, 28-34, 117, 217, 267. Bar-rooms, payment of wages in, 52, 53- Bayonne, N. J. conditions in oil stills, 285. Beet sugar industry, hours of labor, 221. Beggars, professional, forbidden to enter United States, 69. Belgium, wage payment law, 53 ; fines from employees, 59; legal aid, 84; industrial courts, 87, 480 ; statistics of strikes and lock- outs, 125; mediation and arbi- INDEX 530 tration, 136; coal mine accidents, 2 59 369; rest periods for women, 272; night work for women, 274; employment offices, 312; lead poisoning, 350, 356; anthrax, 366; health insurance, 416; old age insurance, 431, 436; repre- sentation of interests, 480. See also Ghent. Berne, wage payment laws, 53, 54; conference on night work of women, 273; vacations for women, 285; conference on poi- sonous phosphorus, 354. Bill drafting, methods of, 466, 476, 488-490. Bill of rights, 22. Bills of attainder, prohibited by constitution, 6. Black Death, effect on wages, 152. Blacklist, in relation to industrial courts, 89; virtually legal, 114; in relation to boycott, 115; legal in England, 124. Blast furnaces, hours of labor, 221. Blue laws for Sunday observance, 278. Bodeker, Dr., on German accident insurance system, 393. Boiler explosions, measures against, 359- Bootmaking, minimum wage, 189. Boston, police strike, 176; Trades- Union National Convention, 231; association of employment man- agers, 320. Bowley, A. L., on regularization of public employment, 316. Box industry, minimum wage, 191, 202. Boycott, as used against intangible property, 96; aim of, 98; legal in California, 100, 108; uncertainty cf term, 102 ; attitude of judiciary towards, 108; primary and sec- ondary, 107; legality of, 112, 115; in Clayton anti-trust act, 112; in relation to blacklist, 115; union responsibility for, 127; legal in England, 124. Brandeis, L. P., briefs supporting labor legislation, 246, 276, 462. Brazil, abolishes slavery, 37. British colonies, tool exemption laws, 49; wage preference, 61. See also Australia, Canada, India, South Africa, West Indies. British Columbia, minimum wage law, 195. Broken Hill, Australia, strike at, 145. Building trades, hours of labor, 226. Bureaucracy, in administration of labor laws, 480. Burlingame treaty, 75. California, Pacific railroad, 3, 374; wage payment law, 53, 85, 90; sanitary requirements for labor camps, 55, 494; opposes Chinese immigration, 74; convict labor, 80; legalizes strike and boycott, loo, 1 06, 108; picketing illegal, 100; minimum wage, 197, 209; hours of labor for women, 241, 246; eight-hour day, 251, 253; one day of rest in seven, 280; va- cations for public employees, 284; regulation of private employ- ment offices, 294, 295; occupa- tional disease reporting, 331; fac- tory ventilation and sanitation, 363, 365; workmen's compensa- tion, 403, 412. Calumet, copper strike, 145. Canada, head tax on Chinese, 70, 76; excludes Japanese and Hin- dus, 76; industrial disputes in- vestigation act, 127, 151, 154, 158, 160, 171, 172; arbitration, 168; Bell Telephone Co. industrial dis- pute, 240; employment offices, 295; prohibition of poisonous phosphorus, 355; old age insur- ance, 431 ; government life insur- ance, 439. See also New Bruns- wick, Nova Scotia, Ontario, Quebec. Canadians, French, in Massachu- setts textile industry, 233. Canneries, hours of labor, 241, 247; enforcement of labor laws, 494. Cardiff, Wales, decasualization of ship-repairers, 321. 'Carlyle, on cash nexus, 53. Casual laborers, in Census, 62 ; casualization, 321 ; excluded from workmen's compensation legisla- PRINCIPLES OP LABOR LEGISLATION 540 tion, 402; included in British health insurance law, 418. Cement industry, hours of labor, 221. Chain industry, minimum wage, IQI, 200, 211. Chase, Justice, on slavery, 36. Chauffeurs, examination and regis- tration of, 352. Chemical industry, hours of labor, 221, 222. Chicago, cooperage industry and convict labor, 78 ; Pullman strike, 139; milk wagon drivers' union, 284; private employment agen- cies, 292. Child labor, competitive character, 2, 68; in indentured service, 41; in agriculture, 62; in relation to compulsory arbitration, 169; minimum wage, 197, 204, 209, 473; hours of labor, 226-230, 233; in relation to contract, 230; in relation to interstate commerce, 230; night work, 276; age re- quirements, 333-340; in relation to tenement house manufacture, 366; safety regulations, 473. Child labor legislation, justified by guardianship power of state, 12; in relation to commerce and po- lice powers, 15; federal legisla- tion, 230, 335-33 6 . 34 6 ; prob- lems of enforcement, 342-346; character, 450; cumulative pen- alties, 491. Chinese, as strike breakers, 3; in Canada, 70; in Australia, 189; in relation to minimum wage, 211. Chinese exclusion laws. See Orien- tals, exclusion of. Cigar Makers' Union, unemploy- ment benefits, 442. Cigarmaking, hours of labor, 226; in tenement workshops, 366. Citizenship stage of labor legisla- tion, 26. Civil service, in relation to adminis- tration of labor laws, 486-488. Civil War, mentioned, 3, 5, 26, 37, 227, 233, 252. Class legislation, labor legislation considered as, 27-30. Class struggle in labor legislation, 26, 485, 500. Clayton antitrust act, 96, 112. Clerical employment, minimum wage, 189; Saturday half -holiday, 278; social insurance, 418. Cleveland, Ohio, conciliation court, 89; hours on street railroads, 258. Cleveland, President, vetoes literacy test, 76. Closed shop, legality of demand, 98, 1 06, 114; in relation to damage suits, 107; in New Zealand, 158; in public employment, 180. See also Collective bargaining, Open shop, Trade unions, Union pref- erence. Clothing industry, minimum wage, 189, 191, 211. Coal mines. See Mining. Coal screening laws, 53, 463. Coke- works, hours of labor, 221. Collective bargaining, in relation to labor contract, 2; history, 91- 125; as restricting liberty, 91, 92; as conspiracy, 91, 93-101; by capital, 92, 93; by labor, 93-125; true kind of, 116-120; legal dis- crimination, 113-116; in relation to minimum wage, 182; repre- sentation of interests, 483. See also Closed shop, Open shop, Trade unions, Union preference. Colonial stage of labor legislation, 25, 26. Colora-do, picketing illegal, no; compulsory arbitration, 127, 151, 154, 172: coal strike, 145; mini- mum wage, 203, 207, 209; hours of labor for miners, 266, 267, 459; regulation of private employment offices, 294; safety regulations, 363; industrial commission, 471. Commerce, regulated by govern- ment, 15. Commerce power, how used, 15; indefinite character, 16. Commission plan, as applied to safety, 359, 381, 469; place in governmental system, 485. See also Industrial commissions, Rail- road commission laws. Commutation of service, 37. Company houses, as medium of payment, 55. Company stores, in relation to peon- age* 39! character of legislation on, 55, 450. INDEX 541 Competition, in relation to labor Constitution, guarantees, natural legislation, 2, 68-8 1; of women rights, 6; in relation to Congress, and children, 2, 68, 186; of im- 6,22,23; thirteenth amendment, migrants, 2, 69-78, 186; of con- 3, 4, 32, 37, 38, 70, 103, 170; victs, 2, 78-81; in relation to doc- fourteenth amendment, 6, 7, 22, trine of conspiracy, 99; in rela- 38, 245, 246, 279, 282, 300. See tion to minimum wage, 186. also State constitutions. Compressed air work, health haz- Constitutionality of laws, how de- ards, 331; health regulations for, termined, 19, 24, 25, 27, 450, 349, 35 1 . 365, 37i; included under 458-465, 492; of labor laws, 30, workmen'scompensation,396,403. 31, 51, 53; of compulsory arbi- Comstock silver mines, conditions tration laws, 170; of minimum in, 260. wage laws, 216-219; of laws Conciliation, defined, 126; board regulating hours of labor, 243- of mediation and, 141. 247, 262-271, 279, 282-284; f Conciliation act of 1867 (England), laws relating to employment of- 89; of 1896 (England), 129. fices, 295, 300; of laws requiring Confectionery industry, minimum examination and registration of wage, 191, 202, 215; rest periods, workers, 352; of workmen's com- 272. pensation laws, 397-400. Congress, in relation to constitu- Consumers' League, obtains half- tion, 6, 22, 23; in relation to holiday for salesgirls, 277; inves- police power, 17; in relation to tigates labor conditions, 453; thirteenth amendment, 38; in publishes L. D. Brandeis' brief relation to contract labor laws, in Mullery. Oregon, 461. 44,71; treatment of seamen, 44, Contagious disease, as reason for 45,373; railwaymen, 45, 374, 378; excluding immigrants, 69; as literacy test, 76; postal employees, reason for exclusion from certain 176; minimum wage bills, 197; occupations, 352. hours of labor, 249, 264-266; Continuous industries, hours of la- poisonous phosphorus prohibi- bor, 254, 279, 281, 284. tion, 324, 355; child labor bill, Contract, in relation to intangible 346; establishes Bureau of Mines, property, I, 95; interference with, 370; health and safety legislation, 6, 31, 51, 52, 245-247, 262, 271; 378; workmen's compensation, development, 36; croppers, 64, 397 ; represented on Industrial 65 ; in relation to labor disputes, Commission, 455; organized la- 109. bor and capital in, 487. See also Contract labor, servile characteris- Legislative. tics, 36 ; in relation to peonage, 42. Connecticut, fines from employees, Contract labor, alien. See Induced 59; decisions on strikes, 1 04; con- immigration, ciliation and arbitration, 137; Contractors' liens, 60, 61; for gov- child labor, 227, 228, 333; night ernment supplies, 249, 251. work of women, 275; ; one day of Contributory negligence, 13, 14, rest in seven, 280; childbirth pro- 253, 390, 391, 400; in relation to tection of women, 348; factory child labor legislation, 338. See lighting, 360; health and safety, also Employers' liability, Work- 372. men's compensation. Conspiracy, collective bargaining Convict labor, in relation to labor treated as, 91, 93-101, 170; com- contract, 2; numbers involved, mon law doctrine, 97; modifica- 78; industries affected, 78; in re- tions, 98-101; not affected by lation to interstate commerce, 79; Clayton antitrust act, 113; in legislation on, 80. England, 123. See also Collec- Copenhagen, employment office, tive bargaining, Trade unions. 312. 542 PRINCIPLES OP LABOR LEGISLATION Corporations, own towns, 56; fur- Dickson, William B., on hours of nish insurance, 58; historical de- steel workers, 223. velopment, 93; have legal per- Diminishing returns, law of, in re- sonality, 98; distinguished from lation to industrial fatigue, 224. trade unions, 117. Discharge, employers' right to, 113- Council of National Defense, com- 116. rnittee of, mediates in railroad District of Columbia, wage exemp- labor dispute, 143. tion law, 48; minimum wage law, Court procedure, in administration 197; eight-hour law for women, of workmen's compensation laws, 237; hours of labor on public 410. works, 249; hours of labor for Courts. See Damage suits, Judi- railwaymen, 254; regulation of ciary. employment offices, 294; licens- Craft gilds. See Gilds. ing of stationary engineers, 353. Credit Foncier, system of agricul- See also Washington, D. C. tural credit. 67. Dockers, decasualization, 320. Criminal syndicalism, a felony, 102. Domestic service, characteristics, Criminals, forbidden to enter United 54; excluded from hour legisla- States, 69. tion, 234, 247; from child labor Croppers, agricultural labor-ten- legislation, 335; from workmen's ants, 63-66. compensation legislation, 401. Czechoslovakia, health insurance, Dover, N. H., agitation for shorter 417, 418, 419; maternity insur- hours, 231. ance, 423; old age pensions, 432. Dredging, hours of labor, 250. Dressing-rooms, legislation provid- D ing, 363, 371. Due process of law, guaranteed by Dallas, Tex., hours on street rail- constitution, 6; meaning of, 9- roads, 258. 34; in relation to investigation, Damage suits, in relation to closed 475, 479, 482. shop strikes, 107; influence on Duluth, Minn., regularization of trade unionism, 121-122; in public work, 316. English trade linion law, 123- Dust, as cause of occupational dis- 125. ease, 330. Debt, imprisonment for. See Im- -p prisonment for debt. Declaration of Independence, equal- Education, in relation to labor con- ity clause, 5, 6. tract, 2; in relation to taxation, Delaware, railroad employees' law, n; demand for, 26; in relation 45; seats for women, 364; en- to padrone system, 47; in relation forcement of labor laws, 494. to competition, 68; in relation Democracy, in relation to represen- to child labor, 341. See also tatiori of interests, 208. Industrial education, Vocational Denmark, legal aid, 84; mediation guidance. and arbitration, 136; employ- Education (choice of employment) ment offices, 312; prohibition of act, 1910 (England), 309. poisonous phosphorus, 354; health Efficiency, how affected by mini- insurance, 416; old age pensions, mum wage, 215; by hours of 436; unemployment insurance, labor, 224. 443. See also Copenhagen. Eight-hour day, in Australasia, 154; Detroit, Mich., hours on street rail- in United States, 221; in con- rpads, 258; Employers' Associa- tinuous industries, 222; for chil- tion, 339. dren, 228; in public employment, Development act of 1909 (England), 249, 262; President authorized S 1 ^. to suspend during war, 250; early INDEX 543 agitation for, 252; in mines and smelters, 253, 259; in plaster and cement mills, 262; for railroad employees, 142-143, 255; in fac- tories and workshops, 260; con- stitutionality, 262-271, 459. Electrical industry, accidents in, 328; examinations and licenses, 352. Elevator operators, examination and registration of, 352. Embroidery industry, minimum wage, 191. Emergency work, as relief for un- employment, 313-3*5- Eminent domain, defined, 12, 13; differs from police power, 14. Employees' representation in man- agement, 177. Employer and employee law. 31, 32, 36. Employers' advances, 39, 43. Employers' associations, as controll- ing legislature, 24 ; deal with wage bargain, 93, 118; check abuses of trade unionism, 119; in Eng- lish law, 123; employment of- fices of, 292; in relation to repre- sentation of interests, 479-481. Employers' liability laws, 31, 387- 392; in relation to payment of benefits, 58 ; in relation to safety, 356, 387; character of, 451. See also Assumption of risk, Con- tributory negligence, Fellow ser- vant rule. Employment, methods of finding, 291, 297; regularization of, 319- 322. Employment agencies, misrepre- sentation by, 39, 292. Employment certificates for work- ing children, 344-345. Employment offices, in relation to padrone system, 47; private, 292- 297, 472; state and municipal, 297-304; federal activities, 304- 307; European national systems, 308-312; for juveniles, 309; in relation to unemployment in- surance, 445. Enforcement of labor laws. See Labor legislation, enforcement. Engineers, hours of labor, 254. England. See Great Britain. Epileptics, forbidden to enter United States, (><;. Equality, in relation to labor con- tract, 9; before the law, 28-34. Erdman act, working of, 139- 140. Europe, humanitarian movement in, 26; war in, 311, 312. Evidence, rules of, in enforcement of labor laws, 494, 495, 497. Ex post facto laws prohibited by constitution, 6. Executive, enforces laws, 18-21; in relation to investigation, 450- 493- F Factory act of 1901 (England), 234. Factory legislation, 81, 450-451; inspection, 8j, 452-453. Fair wage clauses in contracts, 13. Fall River, Mass., agitation for shorter hours, 226, 231. Family, in relation to status, 36. Fellow servant rule, 13, 14, 388, AGO. See also Employers' liability, Workmen's compensation. Feudalism, serfdom connected with, 37- Fines, as deductions from wages, .57-59- Finland, unemployment insurance, 4431 prohibition of poisonous phosphorus, 354. Fire, protection against, 359. Firemen, excluded from eight-hour law, 251; two-platoon system, 252; hours, on railroads, 254. First aid kit, provided in industrial establishments, 365; in mine^, 370- Florida, vagrancy law, 39, 40; con- tract labor law, 44; payment of benefits to injured employers, 58; no limitation of women's hours, 233, 238. France, abolishes colonial slavery, 37; wage payment law, 52, 53; anti-truck law, 55; fines from em- ployees, 59; wage preference, 6l ; agricultural credit, 67; industrial courts, 87-88, 481; strikes anl lockouts, 125, 175, 176; media- tion and arbitration, 136; pul>li- employment, 175, 178; coopera- tive contracts, 181; minimum 544 PRINCIPLES OF LABOR LEGISLATION wage law, 193; coal mine acci- dents, 259, 369; night work of women, 274; employment of- fices, 297; public employment as relief for unemployment, 318; protection of women, 348; com- pressed air work, 350; lead in- dustry, 350; prohibition of poi- sonous phosphorus, 354; glass blowing, 356; anthrax, 366, 396; workmen's compensation, 396; health insurance, 416; old age insurance, 431, 432, 436; govern- ment employees' pensions, 437; government life insurance, 439; widows' and orphans' insurance, 440; unemployment insurance, 443; representation of interests, 480, 48 1 ; superior council of la- bor, 480. See also Lyons, Paris. Freedom of speech, guaranteed by constitution, 6, 97; in relation to unionism, 116. Fruit preserving industry, rest peri- ods, 272. Furniture making, minimum wage, 189, 211. Garnishment, in relation to wage exemption, 48, 82. Gas plants, hours of labor in, 221. Geneva, industrial courts, 87, 88. Georgia, contract labor law, 44; wage exemption law, 47, 48; wage assignment law, 50; pay- ment of damages to injured em- ployees, 58; Sunday rest law, 224; hours of labor in textile mills, 262; regulation of private employment offices, 295; child labor, 334. German Law Protection Society, S3- Germany, wage payment law, 53; fines from employees, 59; agri- cultural credit, 67; emigration from, 72; legal aid societies, 84; industrial courts, 86-88, 136, 481 ; statistics of strikes and lockouts, 125; mediation and arbitration, 136; coal mine accidents, 259, 369; private employment offices, 269; public employment offices, 312; hotels for itinerant workers, 315; public work to meet unem- ployment, 318; maternity in- surance, 348 ; lead poisoning, 350, 356; occupational diseases, 351, 396; prohibition of poisonous phosphorus, 355; anthrax, 366, 396; social insurance, 391-394, 417, 419, 420, 422, 423, 424, 440, 443, 447; mutual trade associa- tions, 394; unemployment in- surance, 443; representation of interests, 480, 481. See also Alsace - Lorraine, Nuremberg, Prussia, Rhine territory. Ghent, International Exposition, address by Leon Bourgeois, 448; system of unemployment insur- ance, 443. Gilds, in relation to collective bar- gaining, 92 ; compared with trade unions, 92, 93; methods of pro- duction, 387; early health in- surance, 416. Glass industry, hours of labor, 222; night work of children, 277; safety regulations, 356. Gloucester, N. J., ten-hour strikes, 232. Glucose industry, hours of labor, 221. Goldmark, Josephine, briefs sup- porting labor legislation, 246, 276. Good will, as intangible property, 8, 95- Goole, England, decasualize tion of dockers, 321. Government, may use force, 10, u, 20,21; as employer, 13; branches of, 18-24; as interfering in wage bargain, 29. See also Public em- ployment. "Granger laws" for railroad regu- lation, 466. Granite cutting industry, hours of labor, 226. Gray, Judge, on night work for women, 459. Great Britain, fair wage clauses in contracts, 13; slave trade abol- ished, 36; tool exemption laws, 49; wage payment laws, 53; fines as deductions from wages, 58; landlord and tenant law, 66; emigration from, 72; history of collective bargaining, 93, 123- INDEX 545 125,152; statistics of strikes and lockouts, 125; history of volun- tary arbitration, 128-136; board of trade, 129, 191, 212, 215, 308, 321; history of wage determina- tion, 152; public employment, 175; minimum wage, 190-193, 200, 206, 207, 211-216; National Anti-Sweating League, 190; health of munition workers com- mittee, 224, 225; coal mine acci- dents, 259, 369; Saturday half- holiday, 278; public employment offices, 308-311; public work for unemployed, 314, 316, 318; ap- prentices sent to colonies, 333; children's employment certifi- cates, 340; lead poisoning, 350, 35i 363 396; prohibition of poisonous phosphorus, 355; an- thrax, 366, 396; exchequer court, 389; employers' liability, 389, 391 ; workmen's compensation, 395, 396; health insurance, 417-424, 428 ; friendly societies, 42 1 ; ma- ternity insurance, 423-425; old age insurance, 431; old age pen- sions, 436; government life in- surance, 439; unemployment in- surance, 443-446; out of work donations, 446; trade unionists, 453; industrial council, 481. See also Goole, Ireland, Liverpool, London, Macclesfield, Manches- ter, Parliament, Scotland, Sun- dertand, Swansea, Wales. Great Lakes, unemployment on, 315. Greece, wage payment law, 52; emigration from, 72. Greeley Horace, on child labor legis- lation, 228. Greenbackism, development of, 26. Guardianship of state, how devel- oped, ii, 12; differs from police power, 14. H Habeas corpus, writ of, guaranteed by constitution, 6, 21. Hair goods industry, anthrax in, 339- Hamilton, Alexander, indorses child labor, 333. Hawaii, contract labor, 42, 43; regu- lar wage payment law, 51; work- 35 men's compensation, 397; moth- ers' pensions, 441. Head tax on immigrants, as prop- erty qualification, 70. Health, protected by immigration legislation, 69; justifies regula- tion of women's wages, 218; effect of long hours, 223; in relation to women's work, 234, 236, 244- 247, 346-348; a social question, 323-325; protected by internal revenue taxation, 355; in relation to tenement house manufacture, 366-368; character of legislation, 450. Health insurance, in relation to oc- cupational disease, 354, 403; his- tory, 415-417; standards, 427. Heating, in factories, 361. Herbergen, hotels for itinerant workers, 315. Higgins, Justice, on minimum wage, 156. Holland. See Netherlands. Hollow-ware industry, minimum wage, 191. Homestead laws, character, 3, 26; purpose, 48, 49. Homeworkers, included in health in- surance, 418. See also Tenement house manufacture. Horseshoers, examination and regis- tration of, 352. "Hotel Liberty," Seattle, 315. Hotels, workers in, 54; child labor, 335- Hours of labor, how regulated, 15; early strikes, 26, 231, 232; legis- lation on, 27, 221-286; statis- tics, 221, 222; for men, 221, 247- 271, 272, 278-281, 459-462; for women, 230-247, 271, 273-278, 459, 463, 473; in relation to ef- ficiency, 224; in relation to trade unions, 226; for children, 226- 230, 233, 271, 273, 276, 473: ad- ministration of laws regulating, 238-243; constitutionality, 243- 247, 253, 262-271, 276, 281-284; character of legislation on, 450. Humanitarian stage of labor legis- lation, 26. Humidity, in factories, 362. Hungary, health insurance. 417; maternity insurance, 423. 54 6 PRINCIPLES OP LABOR LEGISLATION I Ice industry, hours of labor, 221. Iceland, health insurance, 416. Idaho, wage exemption law, 48; state loans to farmers, 67; con- ciliation and arbitration, 137; "right to work," 317. Illinois, railroad employees' law, 45; convict labor, 80; picketing il- legal, no; conciliation and arbi- tration, 137; child labor, 228, 341 ; hours of labor for women, 235, 245, 246, 460, 464; supreme court, 246, 363; eight-hour law, 252; public employment offices, 300, 322 ; regularization of indus- try, 322; occupational disease commission, 330, 371; lead poi- soning, 351; safety regulations for factories, 358; standards of humidity, 362; factory ventila- tion, 362, 363; safety regulations for mines, 370; agencies dealing with labor, 468; decentralized administration of labor law, chart, 471. Immigration, in relation to com- petition, 2, 69-78; increase in, 71 ; change in race composition, 71, 72, 373; proportion of skilled to unskilled workers, 73; legal aid, 83; American compared with Australian, 155; supplies cheap labor, 1 86. Immigration Commission, 72, 455; studies wages, 184. Imprisonment for debt, 26, 31, 47. Indentured service, characteristics, 3.36,41,54; abolition demanded, 26; a form of induced immigra- tion, 70. India, night work of women, 274; child labor, 337. Indiana, wage exemption law, 48; wage assignment, 50; state loans to farmers, 67; convict labor, 80; picketing lawful, in; concilia- tion and arbitration, 137; wom- en's daily hours unrestricted, 233, 238; railroad commission, 378. Individualism, in constitutions, 19. Induced immigrations, as unfree status, 3; laws against, 70-74; effects, 73. Industrial Commission, investigates labor conditions, 455. Industrial commissions, origin, 468; functions, 472; methods, 474; use cumulative penalties, 491. Industrial congresses, investigate labor conditions, 453. Industrial courts, purpose, 86; his- tory, 86, 87; methods, 87, 88, 182; imitated in England, 128. Industrial education, effect on com- petition, 68; Wisconsin regula- tions, 473. Industrial Relations Commission, mentioned, 455. Industry, character of modern, i, 50,323,324. Injunctions against striking, 106; in Clayton antitrust act, 113; waning power of, 120. Inspection, not provided for in earl}' factory acts, 81; of child labor, 342-346; of mines, 370; of rail- roads, 375; old theory of, 379; new methods, 381, 492-498; par- tisanship in appointments, 486- 488. Insurance, in relation to work ac- cidents, 31; in relation to em- ployers' liability, 33; furnished by corporations, 58 ; principle of, 383; in relation to workmen's compensation, 411-415; in ad- ministration of labor legislation, 498-500; voluntary life, 439. See also Social insurance, Workmen's compensation. International Association for Labor Legislation, investigates continu- ous industries, 422; treaty on night work for women, 273; ad- vocates Saturday half-holiday, 278; obtains prohibition of poi- sonous phosphorus, 354; how or- ganized, 453; national sections, 454; turns over certain functions to League of Nations Interna- tional Labor Office, 455. International Labor Conference, recommendation to regulate im- migration, 78; on eight-hour day, 261, 457; on prohibiting night work of women, 274, 457; on pro- hibiting night work of children, 276, 457; on abolishing fee-charg- INDEX 547 ing employment agencies, 296; on establishing public employ- ment offices, 457; on joint com- mittees for public employment offices, 299; on national co-or- dination of employment offices, 304; on use of public work to meet unemployment, 319; on pro- hibition of child labor under the age of fourteen, 337, 457; on ex- clusion of children under eighteen and women from dangerous lead trades, 347, 457; on childbirth protection, 348, 457; on prohibi- tion of poisonous phosphorus, 355, 457; on protection against an- thrax, 366, 457; on maternity in- surance, 425; on unemployment insurance, 442; on government factory inspection, 458; on gov- ernment health service, 458; or- ganized under League of Nations, 457 ; first annual conference, 457- 458- International Labor Office, takes over certain functions of original voluntary body, 455; organiza- tion and staff, 457. International Labor Organization, set up by treaty of peace with Germany, 456. International Conference on Un- employment, recommendations, 3 T 9 International Workingmen's Asso- ciation, 26, 453. Interstate commerce, in relation to convict labor, 79; in relation to child labor, 230, 335-33 6 ; hour regulations, 255: in relation to workmen's compensation, 401. Interstate commerce commission, 139, 468, 476; in relation to railroad employees, 255, 374*375; place in governmental system, 484. Interurban railroads, safety regu- lations, 374- Invalidity insurance. See Health insurance. Investigation, in relation to admin- istration, 23, 24, 449; i n relation to judiciary, 27, 458-465; in vol- untary arbitration, 127; com- pulsory, 127; in relation to ex- ecutive, 450-453; in relation to industrial commissions, 466-479; procedure, 475; character, 479. Iowa, law relating to insurance benefits and employers' liability, 33; wage exemption law, 48; wage payment law, 52; state loans to farmers, 67; convict labor, 80; no limitation of women's hours, 233, 238. Ireland, land system, 66, 68: land commission, 68; statistics of strikes and lockouts, 1 25; employ- ment offices, 311, Irish textile workers in Massa- chusetts, 233. Iron industry, hours of labor, 221, 223; unemployment insurance, 444. Italians, padrone system among, 46. Italy, agricultural credits, 67; emi- gration from, 72; industrial courts, 87, 480; statistics of strikes and lockouts, 125; mediation and ar- bitration, 136; cooperative con- tracts, 181; prohibition of poison- ous phosphorus, 355; anthrax, 366; maternity insurance, 424; old age insurance, 432; govern- mental employees' pensions, 437; government life insurance, 440; unemployment insurance, 443; representation of interests, 480; superior council of labor, 480. Japan, coal mine accidents, 259, 369; child labor, 337. Japanese, exclusion of. See Orien- tals, exclusion of. Judiciary, in relation to police pow- er, 17; in relation to legislative, 18-20; interprets laws and con- stitutions, 19, 20; authority, 22, 23; guided by opinions, 23, 25, 28; changing opinions on labor. 25-28; in relation to investiga- tion, 27. 458-465; considers la- bor legislation class legislation, 29; uses theory of reasonable classification, 30, 31; en: laws on deductions from \v 57, 58: (Mim'^ 'Vropper." (14; in relation to agricultural labor law, 54 8 PRINCIPLES OP LABOR LEGISLATION 67, 68; in relation to contract labor law, 72; inadequacy to secure laborers' rights, 81; treat- ment of collective bargaining, 93- 113. See also Constitutionality. Jury trial. See Trial by jury. K Kansas, constitution, 6; railway employees' law, 45; strikes and lockouts in certain industries for- bidden, 173-174; court of indus- trial relations, 173-174; minimum wage, 209; hours of labor for women, 239; eight-hour day, 263; employment agencies, 293. Kansas City, Mo., municipal legal aid bureau, 83. Kentucky, abolishes imprisonment for debt, 47. Kettle, Sir Rupert, on voluntary arbitration, 128. King, as parens patriae, II, 12. Knights of Labor, oppose contract labor, 71; indorse eight-hour movement, 252; oppose child labor, 334; investigate labor conditions, 453. Labor camps regulated, 55. Labor contract, characteristics, I, 2, 4, 116; in relation to politics, 4, 5; in relation to liberty and property, 7-10; in relation to equality, 9; restrictions on, 27; specific performance, 32; in re- lation to industrial courts, 87. Labor exchanges act of 1909 (Eng- land), 308-311. Labor legislation, relation to labor contract, 2, 10; relation to tax- ing power, II, 15; relation to police power, 13-18; stages, 25- 28; considered as class legisla- tion, 28-30; aims at equality, 36; relation to agriculture, 62, 65-68; relation to competition, 68-8l; exemptions from, 239, 337; enforcement, 326, 449-453, 490-498; solidarism in, 499-500. See also Administration, Consti- tutionality. Labor market, right of access to, 8, 95, 96; influences on, 25. Labor, Secretary of, mediation work of, 144. Lace industry, minimum wage, 191, 211. Land, in relation to labor market, 2-4, 25; laborers' lien, 61. See also Agriculture. Landlord and tenant, law of, 66- 68. Large scale production, influence on labor market, 3, 25. Laundry industry, hours, 235, 247, 262, 277; child labor, 277, 335. Lead industry, 330, 331; effect on women, 347; examination of workers, 350, 351; prohibition of white lead, 355; washrooms and dressing-rooms for workers, 365; character of legislation, 381 ; in relation to workmen's compen- sation, 403. Legal aid, societies, 81; history, 82, 83; as government function, 84, 85; voluntary defenders, 84. Legislation, when unconstitutional, 19, 24, 25, 27, 450, 458-465, 492. See also Labor legislation. Legislative, in relation to judiciary, 18-20; function, 22, 248, 467, 487, 489; investigates labor con- ditions, 455, 456; compared with industrial commission, 475. Liberty, in relation to labor con- tract, 7-10; in relation to prop- erty, 7, 8; in relation to police power, 15; of contract, 6, 31, 51, 52, 244-247, 262, 271; personal, in relation to collective bargain- ing, 91. Liens. See Contractors' liens, Me- chanics' liens. Lighting, factory, Oregon require- ments, 360. Lime industry, hours of labor, 221. Limited liability, doctrine of, 92, .93- Literacy test, for immigrants, 69, 73, 76, 77; for child workers, 341. Liverpool, juvenile employment of- fices, 310; decasualization of dock labor, 321. "Living in'' system, 53, 54. Lockouts, in relation to executive, INDEX 549 21 ; in England, 123, 128; in- creased number, 124, 125; in arbitration proceedings, 127; com- pared with strikes, 150; forbid- den in certain industries in Kan- sas, 173. London, legal aid, 84; police strike, 176; conference on hours in continuous industries, 222; central unemployed body, 308; juvenile employment offices, 310; provision of work for unemployed, 314- Longshoremen, in relation to work- men's compensation, 402. See also Dockers. Los Angeles County, Calif., public defender, 84. Louisiana, contract labor law, 44; hours of labor for firemen, 262, 269; accident reporting, 327. Lowell, Mass., factory women's agitation, 231. Lumbering, mechanics' lien in, 60. Lunatics, forbidden to enter United States, 69. Luxemburg, prohibition of poison- ous phosphorus, 355; health in- surance, 417; maternity insur- ance, 423; old age and invalidity insurance, 432. Lyons, industrial court, 87. M Macclesfield, England, conciliation board, 128. McPherson, Judge, on picketing, 1 10. Madison, James, cited, 16. Magna Charta, mentioned, 28. Maine, peonage, 39; contract labor law, 43; railroad employees' law, 45; child labor, 227; limitations on women's hours, 232. Malice, in labor cases, 98, 99. Manchester, England, decasualiza- tion of cloth porters, 321. Manchester, N. H., agitation for shorter hours, 231. Manila, P. I., boiler regulations, 359- Manitoba, minimum wage law, 195. Manor, lord of, determines wages, 152. Manufactureres* associations, con- trol prices, 93, 118. Maryland, Justice Chase, 36; anti- truck laws, 55; convict labor law 79; conciliation and arbitration, 137; union preference, 180; hours in certain textile mills, 262; hours of labor for railroad employees, 272; night work of women, 275; employment offices, 298; work- men's compensation, 397. Marx, Karl, founds International Workingmen' Association, 453. Massachusetts, Pacific railroad, 3; wage exemption law, 48; wage assignment law, 50; wage pay- ment law, 52; anti-truck law, 55; fines from employees, 59; child labor, 226, 334; convict labor, 80; decisions on strikes, 94, 103; on picketing, no; conciliation and arbitration, 137; minimum wage, 196, 202-203, 209, 213; ten-hour law, 231-233, 235, 242- 244, 278; posting notices, 242; hours in public work, 251, 278, 284; hours on street railroads, 257; regulations for work in com- pressed air, 260, 349, 371; hours of railroad employees, 272; night work of women, 274; one day of rest in seven, 280-281; unem- ployment statistics, 289; em- ployment offices, 300, 495; acci- dent reporting, 326; childbirth protection of women, 348, 422; safety, 356; board of boiler rules, 359; sanitary standards, 365; fellow servant rule, 389; old age insurance, 431, 437; life insur- ance, 439; appoints first factory inspectors, 451; establishes first bureau of labor statistics, 456; railroad commission, 478. See also Boston, Fall River, Lowell, Suffolk County. Master and servant, stage in in- dustry, 36, 40-50. Matches, poisonous phosphorus in manufacture of. See Phosphorus. Maternity insurance, connection with childbirth protection, 348; provisions for, 422-425. Mechanical engineering, unemploy- ment insurance in, 444. 550 PRINCIPLES OF LABOR LEGISLATION Mechanics' lien laws, 50, 60, 6 1, 451. Mediation. See Conciliation. Medical benefit, deductions from wages for, 57, 58; in German social insurance system, 393, 420; importance of, 404; in United States, 404-408. Melbourne, Victoria, sweating in, 162; Age, 187; chief factory in- spector, 212. Mercantile employments, minimum wage, 189, 201, 203, 204, 212, 215; hours of labor, 235, 239, 241, 247; Saturday half -holiday, 277; child labor, 335; seats for women, 364. Merchant adventurers, 92. Merchant gilds. See Gilds. Mexico, slavery and peonage, 37; contract laborers imported from, 73; prohibition of poisonous phosphorus, 355. Michigan, padrone system, 46; con- tract labor law, 44; convict labor, 80; picketing illegal, no; mini- mum age limits, 339. See also Calumet, Detroit. Milk wagon drivers' union of Chicago, trade agreement, 284. Milwaukee, Wis., public employ- ment office, 299. Minimum wage, in England, 153, 190-193, 200, 206, 207, 211, 214- 216; basis, 185-187; in Australia, 187-190, 198-200; for men, 188- 193, 21 1 ; France, 193; Norway, 194; Argentina, 194; Switzerland, 195; for women, 193-198, 200- 205, 473; in Canada, 195; in United States, 195-198, 470; for children, 197, 201, 204, 205, 209, 473; in relation to profits, 203; in relation to unemployment, 202, 213; exemptions, 204; adminis- tration, 205-210; flat rate laws, 205; commissions, 207-210, 466; results, 210-216; constitution- ality, 216-219. Mining, labor legislation, 27, 30/31; wage payment laws, 52, 53, 153; mechanics' liens, 60; strikes, 164, 171, 191; minimum wage, 189, 191 ; hours of labor, 248, 253, 259, 266-267, 461; industrial acci- dents, 259, 328, 329, 369; occu- pational disease, 331 ; child labor, 334, 336; women's work forbid- den, 347; safety regulations, 353, 368-371; early mutual accident insurance, 386. Minnesota, contract labor law, 44; railroad employees' law, 45; con- vict labor law, 80; conciliation and arbitration, 137; minimum wage, 208, 214, 219; seven day labor, 222. See also Duluth. Minors. See Child labor, Child labor legislation. Mississippi, ten-hour law, 253; up- held, 268-269. Missouri, wage assignment law, 49; boycott cases, 108; picketing lawful, in; hours of labor for women, 236; accident reporting, 326; childbirth protection, 348; lead poisoning, 351; railroad full crew law, 377. See also Kansas City. Montana, constitution, 6; convict- made goods, 80; boycott cases, 108; child labor legislation, 229; hours of labor for women, 239; workmen's compensation, 397; enforcement of labor laws, 494, Mothers' pensions, 441. Moving picture machine operators, examination and registration, 352. Mundella, A. J., establishes board of conciliation and arbitration, 129. Municipalities, maintain employ- ment offices, 297; provide work for unemployed, 317. Munition plants, night work of women in, 275. N National Association of Legal Aid Societies, 83. National Child Labor Committee, 334,343,453- National Civic Federation, investi- gates workmen's compensation, 410. National Conference on Industrial Diseases, 330. National _ Council for Industrial Safety, indorses standard accident reporting schedule, 327. INDEX National Farm Labor Exchange, 302. National Labor Union, 26; indorses eight-hour movement, 252; in- vestigates labor conditions, 453. National Metal Trades' Association, employment offices, 292. National War Labor Board, estab- lished, 145; principles and ac- tivity, 146. Navy yards, ten-hour day, 248. Nebraska, convict labor, 80; con- ciliation and arbitration, 137; proposed minimum wage bill, 196; minimum wage law repealed, 197. Netherlands, colonial slavery abol- ished, 37; regular wage payment laws, 51; fines from employees, 59 ; legal aid, 84; mediation and arbitration, 136; night work of women, 274; compressed air work, 350; stone masons, 351; prohibition of poisonous phos- phorus, 355; factory lighting, 361; health insurance, 417; ma- ternity insurance, 423; invalidity and old age insurance, 432; or- phans' pensions, 440; unemploy- ment insurance, 443. Neuchatel, industrial courts, 87. Nevada, wage payment law, 53; conciliation and arbitration, 138; Comstock silver mines, 260; hours of labor in plaster and cement mills, 262 ; no provision for seats for salesgirls, 364. New Brunswick, state loans to farmers, 67. New England Female Labor Re- form Association, 231. New England Labor Reform League, 231. New England Workingmen's Asso- ciation, 231. New Hampshire, child labor, 227; hours of labor for women, 232, 2 35 243. $ ee a ^ so Dover, Man- chester. New Jersey, railroad employees' law, 45; deductions from wages for benefits, 57; convict labor law, 80; decisions on strikes, 104; on picketing, no; child labor, 227, 333; compressed air work, 260, 273, 349, 351, 37 1 ; no rs of labor in bakeries, 262; poisoning, 351; fire protection. 359 \ t ventilation, 362; work- men's compensation, 411. See also Bayonne, Gloucester, Pater- son. New Mexico, contract labor law, 44; no limitation of women's hours, 233, 238; no provision for seats for salesgirls, 364. New South Wales, deductions from wages for benefits, 57; compul- sory arbitration, 153, 162-165; suffrage law, 155; strikes, 155, 163; union preference, 167, 180; cooperative contracts, 181. See also Australasia, Australia. New York City, employment agencies, 39, 293; legal aid, 82; voluntary defenders, 84; street cleaning department, 177; board of estimate fixes street cleaners' wages, 195; cost of living, 195; vacations for public employees, 285; ^ unemployment, 287, 313; association of employment man- agers, 320; children's employ- ment certificates, 340; tenement house manufacture, 366-368 ; compressed air illness, 260, 371. New York state, abolishes imprison- ment for debt, 47; wage exemp- tion law, 48; inspection of work- ers' living quarters, 55; anti- truck law, 55; deductions for benefits to injured employees, 57 ; mechanics' liens and wage prefer- ence, 60; bureau of agricultural information, 67; convict-made goods, 80; bureau of industries and immigration, 86; legal aid, 82-84, 86; industrial commission, 86, 470, 472, 482, 488, 497; seven day labor, 222; child labor, 341, 495; hours of labor for women, 239; hours of labor for railroad employees, 254, 265, 272; hours of labor in compressed air, 260, 273; hours of labor in brick- yards, 263; bakeries, 268, 495; night work of women, 275, 459, 463, 466, 478; court of apj>< 276, 283; Saturday half-holiikiy in stores, 277; one day of n-st in seven, 280, 281, 283; unemploy- 552 PRINCIPLES OF LABOR LEGISLATION ment statistics, 289; employment offices, 297, 298, 305; occupa- tional disease, 349, 403; night messenger service, 338 ; children's employment certificates, 340, 341 ; restrictions on women's work, 347, 34 8 ; compressed air work, 349. 351, 37i; fire protection, 359; factory ventilation, 362; seats for salesgirls, 364 ; tenement house manufacture, 366-368, 496; employers' liability, 391; work- men's compensation, 397-400, 403 ; number oi factory inspectors, 451; administration of labor law, chart, 470; commission for safety and workmen's compensation, 472; prosecutions, 490; tagging sweatshop products, 497. New Zealand, mechanics' liens, 61; state loans to farmers, 67; liter- acy test against Chinese, 76; trade union law, 153: labor situa- tion, 155-161; arbitration acts, 155-161, 1 66; parties, 160; union preference, 158, 165, 166; coop- erative contracts, 181; old age pensions, 436; mothers' pensions, 441. Newlandsact, working of , 138, 141- 142, 143. Newsboys. See Street trades. Night messenger service, age stand- ards for, 338. Night work, prohibited, for women, 234, 239, 273-277, 454, 459, 463, 477; for children, 276; for young persons, 338. North Carolina, Sunday law, 282; child labor, 336, 343. North Dakota, contract labor law, 44; state loans to farmers, 67; minimum wage law, 196. Norway, minimum wage law, 194; employment offices, 312; health insurance, 417; maternity in- surance, 423; unemployment in- surance, 443; superior council of labor, 480. See also Scandinavia. Nova Scotia, state loans to farmers, 67. Nuremberg, convention of legal aid societies, 84. Nurses, included in hour legislation, 246. O Occupational diseases, defined, 330; investigations, 330, 331; report- ing. 33 1; statistics, 332; exami- 'nations, 349-352; in relation to workmen's compensation, 354, 385. 396, 403 ; in relation to health insurance, 354, 403. Ohio, deductions from wages for benefits, 57; convict labor, 80; conciliation and arbitration, 137, 138; industrial commission, 197, 382, 472; minimum wage, 197; child labor, 227, 228, 339; ten- hour law for women, 233; eight- hour day, 252; public employ- ment offices, 297; accident re- porting, 326; restrictions on women's work, 347; lead poison- ing, 35 1 1 362; factory ventilation, 362. See also Cleveland. Oklahoma, state loans to farmers, ' 67; boycotts probably legal, 108; conciliation and arbitration, 137. Old age insurance, state assisted, 431; compulsory, 432; pensions, 435- Oleomargarine, colored, suppression of, 15. One day of rest in seven, need of legislation, 279; existing laws, 280; sustained by courts, 282- 284. Ontario, licensing system for private employment offices, 294. Open shop, true character of, 120. Oregon, deductions for benefits regu- lated, 57; state loans to farmers, 67; convict labor law, 80; picket- ing illegal, no; secrecy regarding wages, 1 86; minimum wage law, 196, 202, 209, 212, 213, 218; hours of labor for women, 233, 239, 241, 245-247,462; social survey, 236; hours of labor in manufacturing, 248, 253, 262, 268; ten-hour law upheld, 248, 268; eight-hour day, 253; night work of women, 275; Sunday law, 282; lighting re- quirements, 360; workmen's compensation, 412. See also Portland. Orientals, exclusion of, 69, 74-76. Orphans, special regulations for INDEX 553 employment of, 334; social in- surance for, 394, 439-441. Pacific railroad, completion, 3. Padrone system, 46, 47. Panic of 1837, 26. Paper industry, hours of labor, 222. Parasitic industries, 203. Paris, industrial courts, 88; labor clause in subway franchise, 258; exposition of 1900, 453. Parliament, treatment of seamen, 44; enacts trade disputes act, 123; fixes wages, 152; prohibits labor combinations, 152; in relation to trade boards, 191. See also Great Britain. Parties, in New Zealand, 160, 161; in Australia, 161, 166; in United States, 169; in Great Britain, 190. Partnerships, distinguished from trade unions, 117, 124. Paterson, N. J., ten-hour strikes, 232. Patria potestas, 12. Pawnbrokers, abuses by, 82. Peacock, -Sir Alexander, on mini- mum wage boards, 188. Penalties for violating labor laws, 490-492; cumulative, 492; civil and criminal actions, 492. Pennsylvania, railroad employees' law, 45; labor camps regulated, 55; convict labor law, 80; at- tempt to establish industrial courts, 89; picketing illegal, no; anthracite coal strike, 148; ten- hour law for children, 227, 228; ten-hour law for women, 232, 234; regulations for work in compressed air, 260, 349, 371; eight-hour day in public em- ployment 263 ; fund for emergency public work, 317; public employ- ment offices, 322; regularization of industry, 322 ; lead poisoning, 351; factory ventilation, 362; railroad full crew law, 377; in- vestigates woman and child labor, 455; industrial commission, 472. See also Philadelphia, Pittsburgh. Pennsylvania-East River tunnels, Peonage, as stage in industry, 36- 41; characteristics, 37; abolished in Mexico, 38; abuses, 39, 40; in relation to contract labor, 42. Pere Marquette railroad strike, 145. Petroleum refineries, hours of labor, 221. Philadelphia, American Federation of Labor convention, 253; street railroads, 256; association of em- ployment managers, 320; Work- ing Men's Party congress, 334. Philippines, contract labor, 42. See also Manila. Phosphorus, prohibition of poison- ous, ii, 15, 324, 355, 454; com- pensation for poisoning by, 403. Picketing, in relation to executive, 2 1 ; as used against intangible property, 96; illegal in Califor- nia, 100, no; judicial views on, 109-112; in Sherman antitrust act, 12 1 ; in English law, 123; in South Australia, 165. Pittsburgh, Pa., conference of legal aid societies, 83; steel workers, 222, 224; women textile workers, 232. Plumbers, registration and examina- tion of, 352. Poisons, list of industrial, 330. See also Lead, Occupational Disease, Phosphorus. Poland, health insurance, 417; ma- ternity insurance, 423. Police power, belongs to states, 11, 15; in relation to guardianship, 12, 14; defined, 13; in relation to labor legislation, 13-15, 476; in relation to eminent domain, 14; in relation to taxing power, 14; in relation to liberty and property, 14, 15; indefinite char- acter, 1 6, 17; in relation to other governmental powers, 17; in re- lation to public benefit, 25; in relation to health, 27; in relation to shifting population, 25; in relation to inequality of bargain- ing power, 33; in coal screening laws, 53; in minimum wage law*. 217-218; in relation to hours of labor, 247, 262, 282, 283; in child labor legislation, 338; in relation to investigation, 464. 554 PRINCIPLES OF LABOR LEGISLATION Policemen, excluded from eight- Public domain, in relation to home- hour laws, 251. stead laws, 3. Political offenders, not excluded Public employment, mechanics' from United States, 69. liens, 60; unions, 175-180; mini- Politics, in relation to labor con- mum wage, 195, 217; hours of tract, 4, 5. labor, 248-252; annual vacations, Polygamists, forbidden to enter 284; as remedy for unemploy- United States, 69. ment, 312-319; workmen's com- Poor law, Eiizabethan,*337. pensation, 397, 401 ; pensions, 437. Poor Man's Lawyer's Association, Public opinion, on labor, 25-28; in- 84. fluences judicial opinion, 25, 28. Population, shifting of, in relation Public utilities, controlled by gov- to police power, 25. ernment, 13; laws regulating, 29; Portland, Ore., public defender, 84; labor clauses in franchises, 258; minimum wage, 213; maximum commissions, 476, 484. hours, 218, 241. Pullman strike, 134. Porto Rico, eight-hour law for women, 237; workmen's com- Q pensation, 397. ** Portugal, abolishes colonial slavery, Quarrying industry, accidents, 328; 37; health in glass industry, 356. occupational disease, 330. Postal employees, unionism among, Quebec, minimum wage law, 195; 176-177; hours of labor, 250; one private employment offices, 296. day of rest in seven, 280. Queensland, compulsory arbitra- Preferential union shop. See Union tion, 153, 165; labor ministry, preference. 162; minimum wage, 189. See President, powers regarding media- also Australasia, Australia. tion and arbitration, 138, 141, 143, 145, 148; issues executive -D orders, 176; memorial to, on oc- cupational diseases, 330; ap- Raiffeisen banks, 67. points members of industrial Railroad brotherhoods, oppose corn- commission, 455. pulsory arbitration, 171; in re- Price bargain, history, 92, 93; con- lation to corporations, 179; se- trasted with wage bargain, 116- cure reduction of hours, 254. 118. Railroad commission laws, 119, Printing industry, hours of labor, 378; origin of, 467; compared 226; employment offices, 292. with industrial commission laws, Prison labor. See Convict labor. 468. Profits, in relation to minimum Railroads, terms of service, 15, 45, wage, 203. 46; work accidents, 33, 328, 329; Property, varying conceptions, I, payment of benefits, 58; me- 7~9. 2 5. 26, 95, 96; in relation chanics' liens, 60; hours of labor, to labor contract, 7-10; in rela- 143, 222, 253-256, 263-266, 272, tion to police power, 14, 15. 279; accident reporting, 327; Prosecutions, for violating labor safety regulations, 352, 372, 374- laws, 451, 492-498. 379- Prostitutes, forbidden to enter Railway Wage Board, appointed, United States, 69. 143. Prussia, railroad employees, 178; Reasonableness, as a standard for labor homes for unemployed, 315. labor legislation, 30, 31, 469, 472, See also Germany. 479, 482. Public benefit, as a principle of Regularization of industry, 319-322. government, 24-28, 476; stage Rehabilitation of industrial crip- in labor legislation, 27, pies, 410, INDEX 555 Representation of interests, in wage boards, 208, 482, 483; in employ- ment offices, 299, 308, 309, 481; in administration of labor laws, 479-486. Republican government, guaranteed by constitution, 6. Responsible government, in relation to administration of labor laws, 484. Rest, weekly day of, 248, 278-284. Rest periods, 271-286. Restraint of trade doctrine, as ap- plied to labor, 96. Rhine territory, industrial courts, 87. Rhode Island, suffrage, 4; weekly wage payment law, 51; early child labor laws, 227; hours on street railways, 257; accident re- porting, 326. Right to work, Idaho, law, 317. Rock Island, 111., arsenal, em- ployees' representation in man- agement, 177, Rolling mills, hours of labor, 221. Roman law, on slavery, 36. See also Patria potestas. Roosevelt, President, appoints an- thracite " coal strike commission, 148. Rossi, Dr., on padrone system, 46. Roumania, mediation and arbitra- tion, 136; government employees, 175; health insurance, 417; ma- ternity insurance, 423; invalid- ity and old age insurance, 432. Rubinow, I. M., study of work ac- cidents, 405. Rural credits law, 67. Russia, agricultural credits, 67; em- igration from, 72; government employees, 175; lead poisoning, 350; health insurance, 417; ma- ternity insurance, 423; govern- ment life insurance, 439. S Safety, adoption of devices, 15; a social question, 323; prohibitive method, 332-356; in relation to employers' liability, 356, 387; regulative methods, 356-3791 de- fects of early legislation, 379-381 ; administrative orders, 381, 382; movement for, 382, 385; en- couraged by workmen's compen- sation legislation, 447; employ- ers' work for, 498. Saloons, women forbidden to work in, 347- Saskatchewan, minimum wage law, 195- Saturday half-holiday, 277-278. Sawmilling, mechanics' liens, 60. Scandinavia, emigration from, 72. See also Norway, Sweden. Schultze-Delitsch banks, 67. Scientific management. See Time study. Scotland, employment offices, 311. Seamen, contracts of, 4, 36, 44, 45, 372; hours of labor, 258; safety, 352, 372-374; early mutual ac- cident insurance among, 386. Seattle, Wash., municipal employ- ment office, 302; provision for itinerant workers, 315. Seats, legislation providing, 364. Senate committee on labor and capital, 455. Separation of powers, 22. Serfdom, as stage in industry, 35- 37, 53- Servia, wage payment law, 53; mediation and arbitration, i.y>; health insurance, 417; maternity insurance, 423. Servitude, gradual transition from, 3 1 . 32. Shaw, Chief Justice, decision on fellow servant rule, 389. Sherman antitrust act, 96, 122. Silk weaving, occupational disease in, 330- Slavery, in southern states, 3, 41; as stage in industry, 35-37, 53'. in England, 36; abolition, 36-38. Sleeping in workrooms forbidden, 365- Social insurance, against unemploy- ment, 289, 303, 310, 321, 442-448; denned, 384; against industrial accidents, 392-415; against ill- ness, 415-429; maternity, 422- 425; against old age and invalid- ity, 429-438; for widows an; in relation to unemployment in- surance, 442; in relation to rep- resentation of interests, 480-486; in relation to civil service, 486- 488. See also Closed shop, Col- lective bargaining, Open shop, Union preference. Trades Union Congress, 130, 131. 558 PRINCIPLES OF LABOR LEGISLATION Trades' Union National Conven- tion, 231. Transportation, influence on labor market, 25; hours of labor, 253- 258. See also Railroads, Seamen, Street railroads. Treitschke, H., cited, 16. Trial by jury, guaranteed by con- stitution, 6; in Clayton anti- trust act, 113. Truck system, 55, 56. Trusts, fix prices, 93. Tuberculosis, reason for excluding immigrants, 69. Tunnel workers, occupational dis- ease among, 331. Turkey, public employees, 175. Turnover of labor, extent, 288; wastes, 288. Typographical union label, 180. U Unconstitutionally of legislation. See Constitutionality. Unemployment, defined, 2; history, 3, 26 in relation to minimum wage, 202, 213; statistics, 287- 291; waste of, 287; causes, 288; insurance against, 289, 310, 442- 448 ; lack of information on, 289, 302 ; in relation to public employ- ment, 312-319; regularization of industry to reduce, 319-322. See also Employment, Employment offices. Unfreedom, stage in economic de- velopment, 3, 4. tJnion preference, 166, 167, 180. Unionism. See Trade unions. United States, abolishes slavery, 37, 38; rural credits law, 67; statis- tics of strikes and lockouts, 125; Commissioner of Labor, 138; De- partment of Labor, 138, 302, 305, 456, 468; parties, 169; arbitra- tion, 136-151, 168-174; unions in public employment, 176, 177; War Department, 177; mini- mum wage, 195-198; Census of 1870, 235; statistics of mine ac- cidents, 259, 369; Bureau of En- graving and Printing, 284; Gov- ernment Printing Office, 284; Census of 1900, 287; Census of Manufactures, 290; workmen's compensation , 3 9 7-4 1 5 ; army , 328; Bureau of Alines, 370, 468; health insurance discussed, 417; old age and disability insurance for federal employees, 434, 435; Bureau of Labor, 452, 456; American section of International Association for Labor Legisla- tion, 454; Department of Agri- culture, 302; Department of the Interior, 468; Department of Commerce, 468; Bureau of Im- migration, 468; Bureau of Labor Statistics, 468; Children's Bu- reau, 468; Treasury Depart- ment, Public Health Service, 468; Board of Mediation and Concilia- tion, 468; Trade Commission, 476,484; Federal Reserve Board, 484. United States Steel Corporation, 3. Unorganized workers, representa- tion of on joint councils, 485. Unskilled workers, and compulsory arbitration, 169. Usury laws, 29. Utah, state loans to farmers, 67; minimum wage, 205; eight-hour law for women, 237; for miners, 266, 267. Vacations, provision for annual, 284-286. Vagrancy laws, as cause of peonage, 39, 40, 81. Van Buren, President, establishes ten-hour day, 248. Vermont, decisions on strikes, 104; conciliation and arbitration, 137; hours of labor for women, 271. Vessels, construction of, mechanics' liens, 60; unemployment insur- ance, 444. Victoria, minimum wage, 153, 162, 163, 166, 188-189, 199, 211-214; anti-labor ministry, 162; Anti- Sweating League, 188; Chamber of Manufacturers, 188, 189, 214; Employers' Association, 214. See also Australasia, Australia, Mel- bourne. Villeinage. See Serfdom. Virginia, picketing legal, in. INDEX '559 Vocational guidance, in relation to employment offices, 301, 309, 310. See also Education, Industrial education. Voluntary defenders, 84. W Wage bargain, history, 92, 93; con- trasted with price bargain, 116- II 8. See also Labor contract. Wage-earners, development as class, 4- Wage, minimum. See Minimum wage. Wages, prevailing rate, 13, 195; exemption laws, 26, 31, 47, 48, 60, 61, 451; payment laws, 33, 50-56, 183, 450; assignment, 49, 50; preference laws, 50, 60, 61; deductions from, 56; rates, 154, 185, 384- Wages boards. See Minimum wage. Wales, employment offices, 311. See also Cardiff, Swansea. Washington, picketing illegal, no; minimum wage, 201, 202, 209, 216; hours of labor for women, 241; eight-hour day, 253; night work prohibited, 277; private employment agencies prohibited, 295, 296; law declared unconsti- tutional, 296; workmen's com- pensation, 412; sanitary require- ments for bakeries, 496. See also Seattle, Spokane. Watertown, Mass., arsenal arbitra- tion plan, 177. West Indies, contract labor, 42. West Virginia, supreme court, 21; no regulation of children's hours, 229; no limitation of women's hours, 233, 238. Western Australia, deductions from wages for benefits, 57; compul- sory arbitration, 153, 165; labor ministry, 162; union preference, 167. Widows, pensions for, 394, 439. Wilson, President, vetoes literacy test, 77. Wisconsin, wage exemption law, 48; minimum wage, 201, 204, 209; public employment offices, 300, 488; industrial commission, 299, 359, 404, 472; workmen's com- pensation, 403, 404; old age i; ance, 432 ; state life insurance, 439 ; Merchants' and Manufacturers' Association, 481; Slat tion of Labor, 48 1 . See also M il- waukee. Women, basis of labor legislation for, 30, 31, 346, 363; as petitors, 68; in relation to com- pulsory arbitration, 169, iH; rates of wages, 183-187; unions among, 186; minimum wage for, 195-198, 200-202, 203, 207-209, 2 1 8, 473; budgets, 202; on minimum wage commissions, 207 ; legislation on hours for, 230-247, 271, 273-277, 281, 459, 463- 465,473; organizations, 231-233; freedom of contract, 244-246; employments forbidden, 346- 348, 473; childbirth protection, 348; maternity insurance, 422- 425. Wood, mayor of New York City, message on unemployment, 313. Work accidents. See Employers' liability, Workmen's compensa- tion. Working Men's Party, opposes child labor, 334. Workmen's compensation, in rela- tion to police and commerce pow- ers, 15, 463; in relation to equal- ization of bargaining power, 31; in relation to occupational disease, 354, 369, 385, 395-396, 403; develops out of employers' liabil- ity, 386-392; German system, 392-394; American laws, 397- 415; scope of laws, 401-403; scale of compensation, 403-410; administration, 410, 411; insur- ance, 411-414; encourages safety movement, 414; investigations on, 410, 412; commissions, 469- 472; introduces "cooperative pressure," 498-500. Workmen's Compensation Service Bureau, indorses standard acci- dent reporting schedule, 327. Wyoming, convict labor law, 80; child labor, 343. THE END 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. LD MAY 2 5 1962 5 1968 S LD JUL1 19S8 LD 21A-50m-3.'62 (C7097slO)476B General Library University of California Berkeley l-95m-7,'37 .LB 64657 UNIVERSITY OF CALIFORNIA LIBRARY J V