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» III., R.S., ch. 58, sec. 7 ; Mass., R.L., ch. 153, sec. 4 ; N.Y., C.L., ch. 14, sec.
60.

* Cal., Civ. Code, sec. 212 ; Minn., R.L., sec. 1812 ; N.Y., C.L., ch. 14 ; sec.
72. » Va., Code, sec. 3652c.



EMPLOYMENT OF WOMEN AND CHILDREN 107

their minor children and live in idleness on their earnings ; ' the
hiring out of wives is coupled with that of children in Louisiana
and North Carolina. The laws generally provide for the pun-
ishment of the delinquent parent as a vagrant.

Laws of which it must be said that their reason and validity
seem doubtful are found in a very few jurisdictions making
special provisions relative to the wages of women ; as, for in-
stance, one prohibiting deductions from their wages on account
of the stoppage of machinery unless they are allowed to leave
the factory,^ or one that declares no property exempt in case of
a judgment for wages earned by a female, if the judgment and
costs do not exceed a specified sum ; ' special allowances of costs
are also made. No good reason appears why distinctions
should be made between adult females and other adults in regard
to such matters.

• Ala., Code, sec. 7843 ; Ga., Acts 1905, p. 109 ; La., Acts 1904, No. 178 :
Miss., Code, sec. 5055 ; N.C., Rev., sec. 3740 ; Tenn., Acts 1907, ch. 25G ; Texas,
Acts 1909, ch. 59 ; Va., Code, sec. 884.

» Mass., Acts 1909, ch. 514. sec. 119.

'Mich., C.L., sec. 900; N.Y., Code Civ. Pro., sec. 3131. The New York
law applies to Brooklyn only, and gives execution against the person.



CHAPTER VI

RESTRICTIONS ON EMPLOYEES

Section 52. Examination, Registration, etc., of Workmen, —
The conditions and requirements of certain occupations are
such that the welfare of fellow workmen or of the public or of
both is dependent on the experience and technical ability of the
employee. Thus in mining, it has been declared the policy of
the state in several jurisdictions to require certain employees,
as managers, mine foremen, fire bosses, and hoisting engineers,
to prove their qualifications by passing an examination and
giving proof of experience, after which a certificate is issued,
without which employment in the designated capacity is pro-
hibited.^ Such laws also penalize an employer who hires
employees of these classes without their having the proper creden-
tials. The second class of laws named, i.e., affecting the public
only, is represented by laws requiring barbers to be examined
and procure licenses ; ^ while both the fellow servant and the
public are interested in the efficiency of railway employees.
Laws relating to them may contemplate, among other qualifi-
cations, physical incapacity, as color blindness of employees
whose duties require them to distinguish signals ; ^ or they may

1 Ala., Code, sees. 1006, 1007 ; 111., Acts 1907, p. 387 ; Ind., Acta 1906, ch.
60, sees. 21, 22 ; Mo., Acts 1903, p. 242.

* Md., Acts 1904, ch. 226 ; Wis., A.S., sees. 1636-18 to 1636-30 ; Mich. Acta
1899, No. 212 ; Ore., Acts 1903, p. 27.

• Ala., Code, sees. 5481-5483, 7655 ; Mass., Acta 1906, ch. 463, Pt. II, sec.
179 ; Ohio, Gen. Code, sec. 12,648.

108



RESTRICTIONS ON EMPLOYEES 109

look merely to the technical skill and experience needed by a
telegraph operator whose duties are connected with the move-
ments of trains.^

Other classes of employees coming within regulations of this
sort are horseshoers,^ plumbers,' electricians/ elevator opera-
tors,^ stationary firemen,' steam engineers,^ street railway
employees,^ and, in some states, all coal miners.^

Section 53. Status of Certified Employees. — The objects in
view in the enactment of these laws are various, as their wide
range would indicate. That foremen in charge of gaseous mines
should be competent, or that mine managers and other em-
ployees having special duties affecting safety should be able to
prove their fitness for their positions is no less important than
that places and appliances should conform to a reasonable
standard of safety.^" Courts have taken radically different
views as to the status of such certified employees as the law
compels to be put in charge of work or places. Thus, the law
of 1891 of the state of Pennsylvania, requiring the employment
of certified mine foremen, contained the provision that for in-

J Ga., Code, sec. 2237.

» Colo., A.S., sees. 2801t-2801z ; Minn., R.L., sees. 2354-2356.
» Cal., Sims' G.L., Nos. 2838, 2839 ; 111., R.S., ch. 24, sees. 498-604 ; Mass.,
R.L., ch. 103 ; Pa., Acts 1909, No. 667.

• Minn., R.L., sees. 2357-2364 ; La., Acta 1908, No. 178.
» Minn., R.L., sec. 761.

•Mass., R.L., ch. 102, sees. 78-86; Mont., Pol. Code, sees. 660 et aeq..
Acts 1905, ch 32.

'Ala., Code, sec. 7091; Minn., R.L., soca. 2174, et aeq.; Ohio, Acta 1910,
p. 361 ; Pa., B.' Dig., p. 535, Acts 1905, No. 75.

• N.Y., Con. L., Ch. 49, sec. 63 ; Wash., Acts 1901. Ch. 103.

• 111., Acts 1909. p. 284 ; Pa.. B. Dig., p. 448 (in anthracite mines only).

>» Wilmington Star Min. Co. v. Fulton, 205 U.S. 60. 27 Sup. Ct. 412 ; Henrietta
Coal Co. II. Martin. 221 111. 400, 77 N.E. 902 ; State r. Murlin, 137 Mo. 297, 38
S.W. 923.



110 LAW OF THE EMPLOYMENT OF LABOR

juries to person or property caused by violations of the act by
such mine foremen, the company should be liable in damages.
In the trial of an action under this provision, ' the supreme court
of the state declared this provision unconstitutional, holding
that the compulsory employment of a certified employee took
out of the hands of the employer his discretion and therefore his
responsibility in the matter. The mine foreman was held to
be the representative of the state, for whose incompetency, if
any, the employer could not be made legally responsible. He
was also held to be but a fellow servant of the miners, and in no
sense the employer's vice-principal, the declaration of the stat-
ute to the contrary notwithstanding. This view is followed
in other jurisdictions, the court stating in one instance that
when the employer had complied with the law by employing a
certified mining boss, no liability attaches for the tortious and
negligent acts of the latter.^

The divergency of views held in different jurisdictions in
regard to the common law doctrine of vice-principalship is noted
elsewhere,^ and it is but natural that this divergence should
affect the construction of statutes that are quite similar in phrase-
ology. The Illinois doctrine of vice-principalship differs from
that accepted in Pennsylvania, and in a case in which the same
point as that above discussed was being considered by the Illinois
supreme court under a law of practically the same form, the
court reviewed the Durkin and Williams cases, and rejected the

1 Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237. See also Golden v.
Coal Co. 225 Pa. 164. 73 Atl. 1103.

» Williams v. Thacker Coal & Coke Co., 44 W. Va. 599,30S.E. 107, citing
14 A. & E. Enc. Law, 809 ; McMillan v. Coal & Coke Co., 61 W. Va. 531, 57
S.E. 129 ; Coal Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251.

» See sees. 82-88.



RESTRICTIONS ON EMPLOYEES 111

doctrine therein laid down, holding that the duties of inspection
and management were the employer's, which he might himself
perform if qualified, otherwise to be performed through some
other person who has been able to obtain a certificate ; but being
still the master's duties, he is responsible for the negligent per-
formance of them, whether by himself or by his agent. ^ The
fact that he is required to employ a manager who is certified by
the state was held to be without significance as relieving him
from responsibility, as the employer was under no obligation
to employ or retain any particular individual, and could dis-
charge for cause of incompetence or otherwise, the effect of the
law being simply to eliminate the obviously unfit, and to form
a class from which the employer might reasonably expect to
procure a fit representative in this respect, but not to enable him
to shift his responsibility to his employees by reason of the act.^
This view and construction of the law were adopted by the
Supreme Court in a case ^ in which this point was under con-
sideration in an action arising under the Illinois statute, and it
seems clear that such a rule is both better law and better reason.
The statute may explicitly put the matter at rest by declaring
that the manager or foreman provided for by the act shall be
regarded as the representative of the mine owner, and not as
the fellow workman of the miners,^ such an enactment being
clearly within the power of the state legislature.*

> Henrietta Coal Co. v. Martin, 221 111. 460, 77 N.E. 902.

» See further Consol. Coal Co. v. Senigcr, 17'.) 111. 370, 53 N.E. 733 ; Smith r.
Dayton Coal & Iron Co., 115 Tenn. 543, 92 S.W. 62 ; Poli r. Coal Co., (Iowa)
127 N.W. 1105.

« Wilmington Star Min. Co. r. Fulton, 205 U.S. 60, 27 Sup. Ct. 412.

< Tenn., Acts 1907, ch. 540.

• Wilmington Star Min. Co. v. Fulton, supra; Western U. Tel. Co. r. Milling
Co., 218 U.S. 406, 31 Sup. Ct. 59. In the latter case it was said that "The com-



112 LAW OF THE EMPLOYMENT OF LABOR

Section 54. Grounds for Legislative Interference. — The law
of Pennsylvania requiring all miners in anthracite mines to have
certificates of competency has been judicially enforced as a
measure to secure the safety of the employees.^

Laws classifying stationary engineers and requiring them to
procure licenses are held constitutional "^ on the ground that they
are a police regulation designed to secure public safety by re-
quiring only competent persons to be entrusted with the control
of dangerous and widely used instrumentalities ; though a law
of Ohio, providing that if on examination an applicant was
found to be trustworthy and competent, a license should issue,'
was declared unconstitutional as interfering with the rights of
citizens and affecting their equality, as well as conferring auto-
cratic power on the examiner, for whom the legislature had fixed
no standard.*

In the matter of railroad employees, the question of uncon-
stitutional interference with interstate commerce was raised in
a case that arose under an earlier statute of Alabama that ap-
plied only to locomotive engineers. The supreme court of the
state and of the United States overruled the contention, holding
that the law was but a reasonable exercise of the police power of
the state, and not a commerce law.^ The present law extends

mon law did not become a part of the laws of the states of its own vigor. It has
been adopted by constitutional provision, by statute or decision, . . . but
however adopted, it expresses the policy of the state for the time being only, and
is subject to change by the power that adopted it."

1 Com. V. Shaleen, 215 Pa. 595, 64 Atl. 797.

« State V. McMahon, 65 Minn. 453, 68 N.W. 77 ; Hj^onen v. Hector Iron
Co., 103 Minn. 331, 115 N.W. 167. ' Acts 1900, p. 33.

* Harmon v. State, 66 Ohio St. 249, 64 N.E. 117.

« McDonald v. State, 81 Ala. 279, 2 So. 829 ; Smith v. Alabama, 124 U.S. 465,
8 Sup. Ct. 564.



RESTRICTIONS ON EMPLOYEES 113

the test as to color blindness to trainmen, trackmen, switchmen,
and train dispatchers, and has been construed in the same
manner as the more limited law.^ A provision in the earher
law that required the railroad company to pay the fees for the
examinations was declared unconstitutional by the state court,*
though the Supreme Court of the United States ' upheld in its
entirety a statute embodying this provision as to the payment
of fees. A law prescribing the length and grade of service of
various classes of employees prior to their appointment or pro-
motion * was declared unconstitutional by the supreme court of
Ohio^ in a memorandum adopting the opinion of the court
below,' in which it was said that the law affected unequally
employees in the same class of service, and was therefore repug-
nant to the constitution ; but whether or not in any particular
instance a law of this class is aptly drawn, or proper provisions are
incorporated for its enforcement, it does not seem open to ques-
tion that the power of the state cannot be held to fall short of
prescribing standards of ability and competence in matters
affecting the public welfare.

Within these reasons fall the laws which restrict the practice
of plumbing to workmen who have been able to prove compe-
tency and secure licenses to prosecute their trade ; ^ though it has
been held that inspection and not a restrictive licensing law is the
proper method of reaching the desired end,^ a law of the latter

> Nashville, etc., R. Co., v. Alabama, 128 U.S. 96, 9 Sup. Ct. 28.
» Louisville & N. R. Co. v. Baldwin, 85 Ala. 619, 5 So. 311.
' Nashville, etc. R. Co. r. Alabama, supra.

* Ohio, Acts 1893, p. 20.

» State V. Cleveland, etc., R. Co., 70 Ohio St. 506, 72 N.E. 1165.

• 26 Ohio C. C. Rep. 348.

' Douglas V. People, 225 lU. 536, 80 N.E. 341 ; Davidson v. State, 77 Md.
388. 26 Atl. 415. » State v. Smith, 42 Wash. 237, 84 Pac. 851.
I ■ •



114 LAW OF THE EMPLOYMENT OF LABOR

class being in this case declared unconstitutional. How far
such laws may properly go is, indeed, a question not yet decided,
nor is it easy of decision. The law relating to the licensing of
horseshoers, for instance, has repeatedly been held to be an
unwarranted and arbitrary interference with the liberty of the
citizen and his right of private property.^ The same language
was used in a case in which a law licensing plumbers was under
consideration,^ though such a view is without doubt opposed
to the better opinion, since such an employment too closely
affects the welfare of the pubUc to demand that it shall not be
subject to proper restrictions as to its practice.'

In the case of barbers there is usually coupled with the ques-
tion of skill that of personal freedom from contagious and in-
fectious diseases, and of such knowledge of the more common
affections of the skin as will enable them to shave one suffering
from them without aggravating their condition ; so that there
is here clearly in view the protection of the public health. The
board of examiners is also frequently a board of inspection as
to the conditions maintained in shops. Within the range of
health provisions, these laws command support under the police
power of the state.* Where, however, under the guise of regu-
lation, provisions are introduced whose apparent intent is to
restrict the practice of the trade by unreasonable requirements
and limitations, such provisions will be declared uncon-

' Bessette v. People, 193 111. 334, 62 N. E. 215 ; People v. Beattie, 89 N. Y.
Supp. 193, 96 App. Div. 383 ; In re Aubry, 36 Wash. 308, 78 Pac. 900.

* State V. Smith, supra.

* Caven v. Coleman (Tex. Civ. App.), 96 S.W. 774 ; State v. Gardner, 58 Ohio
St. 599, 51 N.E. 136.

* State V. Briggs, 45 Ore. 366, 77 Pac. 750; Ex parte Lucas, 160 Mo. 218, 61
S.W. 218 ; State v. Sharpless, 31 Wash. 191, 71 Pac. 737 ; State v. Zeno, 79 Minn.
80, 81 N.W. 748.



RESTRICTIONS ON EMPLOYEES 115

stitutional. Such was the case in a law prohibiting the granting
of a certificate to aUens/ and one making two years' study as an
apprentice under a qualified barber, or practice for a like period
as a qualified barber a prerequisite to the granting of a certifi-
cate ; 2 but a law was upheld which required applicants to pass
an examination before receiving a certificate unless they had
practiced as barbers for two years in the state prior to the mak-
ing of their application, a total of two years without and within
the state being held not to satisfy the provision.^

The statute of Texas on this subject * was held to be uncon-
stitutional ^ both as violating the provision of the constitution
of the state that exempts mechanical pursuits from an occupa-
tion tax, and as making discrimination between students work-
ing their way as barbers at the state university, barbers at the
eleemosynary institutions of the state, and barbers in towns of
less than one thousand population (all of whom are exempt
from the application of the law), and all other barbers, who
must procure certificates or forego practice.

The entire subject of examination and licensing, as is true of
the whole subject of the regulation of the conditions of employ-
ment, is affected by the development of industry in its modern
forms, and the corresponding growth of ideas of public policy.
The contractor for work no longer does it himself, and neither
fellow servants nor the employer are able to observe and guard
against the negligent acts of unskillful workmen as may easily
have been the case in days of small undertakings and intimate

» Templar v. State Board. 131 Mich. 254. 90 N.W. 1058.

* State V. Walker. 48 Wash. 8. 92 Pae. 775.

» Wasa V. State Board, 123 Mich. 544, 82 N.W. 234,

«Act3 1907, ch. 141.

» Jackson v. State, 55 Texas Cr. App. 557, 1 17 S. W. 818.



116 LAW OF THE EMPLOYMENT OF LABOR

relationships between workmen and employer. The remark of
the court in the Pennsylvania case relative to the compulsory
employment of a certified mine foreman, that it is as if the state
were saying, "You cannot be trusted to manage your own busi-
ness ; left to yourself, you will not properly care for your own
employees," ^ is more and more the attitude of the state, and is
being approved by legislatures and courts alike as the necessary
viewpoint in a time when great corporations and deputed
directive agents are so largely in evidence in the conduct of
industry. The law indicates to the individual a standard that
has been fixed upon as the result of the collective experience of
the many, with something of the inevitable bias of ex parte
determination eliminated, and it cannot be questioned that the
condition of both employer and employee is the better for such
provisions. The fact remains that a just ground for interven-
tion must appear, and that the rights of liberty and property
may not be arbitrarily infringed upon under the guise of either
health or safety regulations, or for the alleged prevention of
fraud or oppression where the parties concerned are sui juris and
on a reasonably equal footing.

A simple and clearly defensible law is one that forbids the
employment on railway engines of illiterate engineers.^ One
state applies this rule to flagmen, hostlers, and assistant host-
lers.'

Section 55. Age as Condition of Employment. — Among
other conditions that may be embodied in statutes determining
the fitness of employees for certain duties is that of age, as of

» Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237.

« Minn., R.L., sec. 4999 ; N.Y., C.L., ch. 40, sec. 1982 ; Wash., Acts 1909,
ch. 249, sec. 274. » Ohio, Gen. Code, sec. 12,551.



RESTRICTIONS ON EMPLOYEES 117

telegraph operators,^ elevator operators,'^ mine foremen,' and
the like. The reasons for such laws are for the most part dif-
ferent from those limiting the employment of young children,
as the classes of persons covered are those whose acts and dis-
cretion involve the safety of others quite as much as their own
welfare.'* The reasonableness of such regulations is apparent,
coming within that of other provisions looking to the safety of
workmen.^ The employer may make such rules of his own
volition, and it has been held that an employee who misrepre-
sents his age to evade the regulation is not entitled to recover
damages if he is injured in the course of his employment, being
no better than a trespasser.^ The better reason, however, rests
with the view that the employer is relieved of liability only if
the age is a cause of the injury;^ but while the employment
continues, there is a relation of master and servant subsisting,
and a corresponding liability for negligence toward such an em-
ployee, the contract being voidable but not void.^

A statute that prohibits the discharge of any person between
the ages of eighteen and sixty solely on account of age ® may be
mentioned in this connection.

Section 56. Resident Laborers — Aliens. — Laws that have

> Colo., A.S., sec. 1396a ; N.Y., C.L., ch. 40, sec. 1982.

» Mass., Acts 1909, ch. 514, sec. 74.

« Mont., Acts 1909. ch. 69 ; Mo., Acts 1903, p. 242.

* Moranr. Dickinson, 204 Mass. 559, 90N.E. 1150.
' Moran v. Dickinson, supra.

• Norfolk & W. R. Co. v. Bondurant, 107 Va. 515. 69 S.E. 1091.

' McDermott v. Iowa Falls, etc. R. Co., 47 N.W. 1037 (Iowa) ; Luphcr c.
Atchison, T. & S. F. R. Co.. 81 Kans. 585. 106 Pac. 284 ; Denver



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 10 of 32)