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relating to the modes and times of paying wages, and, on public
works, the rate of wages ; to the hours of labor, the condition
of working places, the guarding of machinery, the employment
of women and children, and much also that would not come
within the scope of statutory regulation were it not for the
recognized difference between the average employer and the
average employee in freedom to choose or reject the conditions
of employment. Of wider general scope, but of less importance
as actually affecting the contract of employment, are provi-
sions found in the codes of a few states, taken from the work of
a commission appointed by the state of New York in the year
1857, to draft a code for that state. This draft was a codifica-



THE CONTRACT OF EMPLOYMENT 7

tion in pretty complete form of the common law, and, though
it was rejected by the state for which it was prepared, it was
adopted by California, Montana, and the Dakotas.^ It is, as
indicated, nothing more than a restatement of the principles
of the common law, so that while it embraces many of the topics
to be considered in the present undertaking, its provisions call
for no discussion apart from that given the rules laid down by
the courts as the common law.

Section 5. Police Power. — The question naturally arises as
to the right or authority of legislatures to intervene in the
matter of contracts of employment so as to modify the other-
wise prevalent rule of unrestricted freedom; and the answer is
that it is only as an exercise of the so-called police powers of the
states that such acts can be accepted as valid. What these
police powers are is not a matter of accurate definition, inas-
much as they concern the policy of the individual states, which
is subject to growth and change with changing industrial and
social conditions.^ The poHce power, in its broadest accepta-
tion, means the general power of a government to preserve and
promote the public welfare by prohibiting all things hurtful to
the comfort, safety, and welfare of society, and establishing
such rules and regulations for the conduct of all persons and the
use and management of all property, as may be conducive to
the public interest.' It relates to the safety, health, morals,
and general welfare of the public. Both property and liberty

' See Appendix. This code haa been amended in some respects in at least
three of the states named, but is reproduced in practically its original form as
presenting in brief the principles of the common law governing the contract of
employment. It is referred to as the Field Code, from its chief editor.

« Atkin V. Kansas, 191 U.S. 207, 24 Sup. Ct. 124 ; Holden v. Hardy, 169 U.S.

366, 18 Sup. Ct. 383. » Am.



Online LibraryLindley Daniel ClarkThe law of the employment of labor → online text (page 2 of 32)