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lawsuit has ever been brought; but in all cases that would not be the
result.]

[Footnote 3: This is law in Utah; but nevertheless a letter from a
State government official informs me that women are willing to [and
do?] work for a smaller salary.]

A principle somewhat akin to that of a vote of a town fixing the rate
of wages is the recent constitutional amendment in the State of New
York (see above, p. 161) which validated the statute requiring that in
public work (that is to say, labor for the State, for cities, towns,
counties, villages, school districts, or any municipality of the
State), or _for contractors employed directly or indirectly by the
State or such municipality_, that rate shall be paid which is usual
at the time in the same trade in the same neighborhood. This was the
earliest statute, which was declared unconstitutional (see above, p.
161). The lack of interest in this tremendously important matter is
shown in the fact that not one-third of the voters took the trouble
to vote on the amendment at all, and that for three days after the
election no New York newspaper took notice of the fact that the
amendment had passed. Up to this constitutional amendment the courts
of New York, as well as those of California and even of the United
States, had resented with great vigor the attempt of statutes to make
a crime the permitting of a free American citizen to work over eight
hours if he liked so to do. But in New York at least (now followed
in Delaware, Maryland, and Oklahoma) it is now settled that so much
interference even with the rate of wages may be allowed, and as the
percentage of public employment is, of course, very large - covering as
it does not only all public contractors, but all labor in or for gaols
or public institutions - it will necessarily, it would seem, drag with
it a certain practical regulation of private industry corresponding to
the public rules.

In England, the New Zealand experiment has been tentatively begun;
that is to say, in the last radical Parliament, in the autumn of 1909,
the law was enacted, already referred to, for fixing wages by mixed
commission (see above, p. 159); but otherwise than as above there is
in the States and Territories of the United States, and in the United
States itself, no regulation of wages, even of women or children, and
no attempt, as yet, at a minimum wage law.

When we come to hours, the matter is very different. In the first
place, we must be reminded that without a constitutional amendment
you cannot have any direct or indirect legislation, as to general
occupations, on the hours of labor of a man of full age.[1] You can
have regulation of the hours of labor of a woman of full age
in general employments, by court decision, in three States
(Massachusetts, Oregon, and Illinois), the Massachusetts decision,
carelessly rendered in 1876, without citing any authority whatever,[2]
being based apparently on a vague notion of general sanitary reasons,
without argument or apparently due consideration of the historical and
constitutional law; but the Oregon case,[3] decided both by the State
Supreme Court and by the Federal Court in so far as the Fourteenth
Amendment was concerned, after most careful and thorough discussion
and reasoning, reasserted the principle that a woman is the ward of
the state, and therefore does not have the full liberty of contract
allowed to a man. Whether this decision will or will not be pleasing
to the leaders of feminist thought is a matter of considerable
interest. A similar statute in Illinois had been declared
unconstitutional twenty years before, largely on the ground that
to limit or prohibit the labor of woman would handicap her in her
industrial competition with man, pointing out also that the Illinois
Constitution itself prescribes and requires that the rights of the
sexes should in all respects be identical, save only in so far as jury
and militia service and political rights were concerned. A new statute
since the Oregon decision has been passed in Illinois and the law was
sustained, reversing the older case. On the other hand New York courts
take a position squarely contrary,[4] and so in Colorado.[5] The
constitutional justification of these decisions must probably be
that the health not only of the women themselves, but of the general
public, or at least of posterity, is concerned, for, as we shall find
more particularly when we discuss general legislation on the police
power, to justify an interference with personal liberty of freemen
there must, under English ideas, be a motive based upon the health,
safety, and well-being of all of the whole community, not merely
of the particular citizen concerned. He has the right to work in
unhealthy trades at unhealthy times, or under unhealthy conditions,
just as he has the right to consume unhealthy food and drink. If it be
prohibited, it must be prohibited when it has a direct relation to the
general welfare. For example, a railway engineer may be prohibited
from working continuously for more than sixteen hours, for that is
a direct danger to the safety of the public; but a man may not
be prohibited from taking service for long hours as stoker on a
steamship, although the life of a stoker be a short one and not over
merry. Apparently, however, a woman can be; and indeed there have for
a long time been laws prohibiting the labor of women in England and
regulating their hours. But then there are laws prohibiting women from
serving in immoral occupations, or occupations which are supposed to
be dangerous to their morals, as, for instance, many States have laws
against the serving of liquor, or even of food, by women or girls in
places or restaurants where liquor is served, or for certain hours, or
in certain places. Very conceivably a law might be passed prohibiting
women and girls from the selling of programmes, or attending upon dime
museums, or even selling newspapers, or being district messengers;
but, as we all know, there are women cabmen in Paris. Would
legislation prohibiting such employment to women be unconstitutional?
There is already a considerable amount of it. The cases are
conflicting, the earlier view, and the view taken in the South and in
at least one Federal court, being that such laws are unconstitutional.
The modern doctrine, backed up by that public opinion which we have
above described as the ethical force, would seem to sustain them. The
truth is probably that the legislature must be the sole judge of the
expediency of such legislation; where the court can see that it does
bear a direct relation to the morals of the young women concerned,
or the morals of the general community, it will be sustained as
constitutional under the police power, although to that extent
interfering with the personal liberty of women and with their means of
getting a livelihood.

[Footnote 1: Georgia and South Carolina have such law requiring
sixty-six and sixty hours a week respectively in cotton and woollen
manufacturing; but their constitutionality has never been tested. For
_public_ work, see below.]

[Footnote 2: Commonwealth _v._ Hamilton Manufacturing Co. 120 Mass.
383.]

[Footnote 3: Muller _v._ Oregon, 208 U.S. 412. So in Pennsylvania:
Commonwealth _v._ Beatty, 23 Penn. C.C. 300.]

[Footnote 4: People _v._ Williams, 81 N.E. 778.]

[Footnote 5: Bucher _v._ People, 93 Pac. 14.]

As to children there is, of course, no question. Laws limiting their
labor are perfectly constitutional, and some child-labor laws exist
already in all States and Territories except Nevada. The only dispute
on the child-labor question is whether such legislation should be
Federal, or rather whether the Constitution should be so amended as to
make Federal legislation possible. Practically this would meet with
a very much wider opposition than is commonly supposed. The writer,
acting as chairman of the National Conference of Commissioners on
Uniformity of Legislation appointed under laws of more than thirty
States of the Union and meeting in Detroit, Michigan, in 1895, brought
this matter up under a resolution of the Legislature of the State of
Massachusetts requesting him to do so. Nearly every Southern delegate
and most of those from the West and from the Middle States were on
their feet at once objecting, and the best he could do was to get
it referred to a committee rather than have the Commonwealth of
Massachusetts summarily snubbed. This committee, of course, never
reported.

Undoubtedly climatic effects, social conditions, and dozens of other
reasons make it difficult, if not unwise, to attempt to have the same
rules as to hours of labor in all the States of our wide country. Boys
and notably girls mature much earlier in the South than they do in
the North; schooling conditions are not the same, homes are not so
comfortable, the money may be more needed, the general level of
education is less. Doubtless there are still areas in the South where
on the whole it is better for a child of fourteen to be in a cotton
mill than anywhere else he is likely to go, schools not existing. The
Southern delegates resented interference with their State police power
for these reasons. The Massachusetts Legislature, on the other hand,
had in mind the competition of Southern mills, with cheap child labor,
quite as much as any desire to benefit the white or negro children
of the South; but the writer's experience convinced him that a
constitutional amendment on this point is impossible, although one has
been repeatedly proposed, notably by the late Congressman Lovering of
Massachusetts, and such an amendment is still pending somewhere in
that limbo of unadopted constitutional amendments for which no formal
cemetery seems to have been prepared.

Even as to men, the labor of the Southern States is notably different
from the labor of Lowell or Lawrence, Massachusetts, or even
Cambridge; while on the Panama Canal or in most tropical countries the
ordinary laborer likes to pretend that he is working eighteen hours
a day, although most of the time is spent in eating or sleeping.
Nevertheless, under the Federal law, all employees at Panama have
to be given the eight-hour day required by the Federal statute, the
Supreme Court having upheld that act as constitutional.

It is curious to note, in passing, the alignment of our courts upon
this subject of hours of labor and general interference with the
freedom of contract of employment. The Western and Southern States
are most conservative; that is to say, most severe in enforcing the
constitutional principles of liberty of contract as against any
statute. The courts of the North and East are more radical, and the
courts of Massachusetts and the United States most radical of all. I
account for this fact on the ground that where the legislatures are
over-radical, the courts tend to react into conservatism, and as the
Western legislatures try many more startling experiments than are
usually attempted in Massachusetts or New Jersey, the more intelligent
public opinion has to depend on the courts to apply the curb.
All this, of course, is a great mistake; for it forces undue
responsibility on the courts, at least tends to control in an improper
way the appointment of judges, and at best forces the most upright
judge into a position where he should not be put - that of being a kind
of king or lord chamberlain, with power to set aside improper or wrong
legislation.

With these preliminary remarks we are now prepared to examine the
legislation as it exists to-day (1910); cautioning our readers that
this subject, as indeed all others concerning labor legislation, is so
often tinkered in all our States as to make our statements of little
permanent value, except that restrictions once imposed are rarely
repealed. We may assume, therefore, that the law is at least as
radical as it is herein presented.

The hours of labor of _adults_, males, in ordinary industries remain
as yet unrestricted by law in any State of the Union; but several
States have laws making a certain number of hours a day's work in the
absence of contract;[1] and New York and a few other States have an
eight-hour day in "public" work - that is to say, work directly for
the State or any municipality or for a contractor undertaking such
work.[2]

[Footnote 1: Thus eight hours (California, Connecticut, Illinois,
Indiana, Missouri, New York, Ohio, Pennsylvania, Wisconsin); ten hours
(Florida, Maine, Michigan - with pay for overtime - Minnesota, Montana,
Maryland - for manufacturing corporations - Nebraska, New Hampshire,
Rhode Island, South Carolina - in cotton and woollen mills - in New
Jersey), fifty-five hours a week in factories; in Georgia eleven hours
in manufacturing establishments, or from sunrise to sunset by all
persons under twenty-one, mealtimes excluded (see below). But these
laws do not usually apply to agricultural or domestic employment or to
persons hired by the month.]

[Footnote 2: In public work, that is, work done for the State, or any
county or municipality or for contractors therefor, the eight-hour day
is prescribed (California, Colorado, Delaware, District of Columbia,
Hawaii, Idaho, Indiana, Kansas, Maryland, Massachusetts, Minnesota,
Montana, Nebraska, Nevada, New York, Oklahoma, Oregon, Pennsylvania,
Porto Rico, Utah, Washington, West Virginia, Wisconsin, Wyoming, and
the United States). But the provisions for overtime and compensation
for overtime differ considerably.]

The labor of women (in mechanical trades, factories and laundries in
Illinois, or in mercantile, hotel, telegraph, telephone, etc., as
well, in Oregon) for more than a limit of ten hours per day in
Illinois, or nine in Oregon, is prohibited and made a misdemeanor; and
both these statutes have been held constitutional. But in many
other States the hours of labor in factories or manufacturing
establishments, even of adult women, are now regulated; while the
labor of children, as we shall find, is regulated in nearly all. Thus,
Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Nebraska, New Hampshire, New York, North Dakota, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia,
and Washington have a ten-hour day in all manufacturing or mechanical
employments for women of any age, which in Connecticut, Massachusetts,
Michigan, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, and
Washington extends to mercantile avocations also, in Louisiana only
to specified dangerous trades; in Wisconsin, eight hours; and in
Connecticut, Maine, Minnesota, New Hampshire there may not be more
than fifty-eight hours a week, or in Massachusetts and Rhode Island,
fifty-six, and in Michigan and Missouri, fifty-four. Arizona has an
eight-hour day in laundries.

And these laws are extended to specified occupations, viz., in
Connecticut to manufacturing, mechanical, and mercantile; in Illinois,
mechanical, factory, or laundry; in Louisiana, unhealthful or
dangerous occupations except agricultural or domestic; in Maine,
mechanical and manufacturing except of perishable products; in
Maryland, special kinds of manufactories; in Massachusetts,
manufacturing, mechanical, mercantile, and restaurants; in Michigan,
Minnesota, and Missouri, manufacturing, mechanical, and mercantile
or laundries; in Nebraska, manufacturing, mercantile, hotel, or
restaurant; in New Hampshire, New York,[1] North Dakota, Oklahoma,
Rhode Island, manufacturing and mechanical; in Tennessee and
Virginia, manufacturing only; in Washington and Oregon manufacturing,
mechanical, mercantile, laundry, hotel, or restaurant, and in
Wisconsin, mechanical or manufacturing. Georgia and South Carolina
regulate the labor of women as they do of adult men[2] in factories.
Such laws of course would not be unconstitutional or, if so, not for
the reason of sex discrimination.

[Footnote 1: Possibly unconstitutional. See above.]

[Footnote 2: See above.]

Now all these laws arbitrarily regulate the hours of labor of women
at any season without regard to their condition of health, and are
therefore far behind the more intelligent legislation of Belgium,
France, and Germany, which considers at all times their sanitary
condition, and requires a period of rest for some weeks before and
after childbirth. The best that can be said of them, therefore, is
that they are a beginning. No law has attempted to prescribe the
social condition of female industrial laborers, the bill introduced in
Connecticut that no married woman should ever be allowed to work in
factories having failed in its passage.

The hours of labor of minors, male and female, are limited in all
States, except Florida, Missouri, Montana, Nebraska, Nevada, New
Mexico, South Carolina, Texas, Vermont, Utah, Washington, West
Virginia, and Wyoming, particularly in factories and stores, usually
under an age limit of sixteen, to ten hours per day or fifty-eight
hours a week.[1] But in Alabama, Arkansas, and Virginia, the age is as
low as fourteen, and in California, Indiana,[2] Louisiana, Maine,[2]
Massachusetts, Michigan, North Carolina, Ohio,[2] Pennsylvania,[2] and
South Dakota,[2] it is eighteen. In California, Delaware, Idaho, and
New York, it is nine hours, and in Colorado, District of Columbia,
Illinois, Indiana, Kansas, New York,[3] North Dakota, Ohio, and
Oklahoma, it is as low as eight hours a day, though the laws in
several States, as in New York, are contrary and overlie each other. A
corresponding limit, but sometimes less, is fixed for the week; that
is, in the nine-hour States and some others, weekly labor may not
exceed fifty-four hours or less.[4]

[Footnote 1: Connecticut, Maine, Massachusetts (in manufacturing,
fifty-six), Mississippi, New Hampshire (nine hours, forty minutes),
Pennsylvania. In others, sixty hours a week (Alabama, Arkansas,
Indiana, Iowa, Kentucky, Maryland (in Baltimore only), Minnesota, New
York, Oregon, South Dakota, Tennessee, Wisconsin).]

[Footnote 2: As to females only (Indiana, Maine, Ohio, Pennsylvania,
South Dakota).]

[Footnote 3: In factories (New York).]

[Footnote 4: Fifty-four hours (Delaware, Idaho, Michigan, New York),
fifty-five hours (New Jersey), fifty-six hours (Massachusetts, Rhode
Island), forty-eight hours (District of Columbia, Illinois, Kansas,
Ohio, Oklahoma), sixty-six hours (North Carolina).]

Night work in factories, etc., is prohibited in nearly all the States
mentioned and in others.[1] Many States require working papers or
certificates of age of the person employed, and there are often also
certificates as to the required amount of schooling when necessary.
Indeed it may be said that we are on the way to the German system of
having time cards or certificates furnished by State machinery for all
industrial workers, and such a system will, of course, be absolutely
necessary should the State ever engage in old-age insurance, as has
been done in Germany and England; though the practical difficulty of
such a scheme would have been thought by our fathers insuperable
on account of our Federal and State system of government, and the
necessary free immigration of American workmen from one State into
another.

[Footnote 1: Thus, night labor in factories to minors under fourteen
(Arkansas, Georgia, Massachusetts, North Carolina, Texas, Virginia),
twelve (South Carolina), eighteen (New Jersey), or sixteen (Alabama,
California, Connecticut, Delaware, District of Columbia, Idaho,
Illinois, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota,
Mississippi, New York, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, Vermont, Wisconsin) is prohibited in
factories or mercantile establishments (Connecticut, Iowa, Kansas,
Michigan, New York), or any gainful occupation (Delaware, District
of Columbia, Idaho, Illinois, Kentucky, Louisiana, Minnesota, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode
Island, Texas, Vermont, Wisconsin). In South Carolina the law
only protects children under twelve from night labor in mines and
factories. So in some as to all females only (Indiana), females
under eighteen (Louisiana, Michigan, Ohio, Oklahoma, Pennsylvania),
twenty-one (New York), and to any minor between 10 P.M. and 6 A.M.
(Massachusetts).]

These laws will be found summarized in full in _Legislative Review_,
No. 5, of the American Association for Labor Legislation, by Laura
Scott ("Child Labor"), and in No. 4, by Maud Swett ("Woman's Work").

It will be seen that in all respects practicable with our necessary
system of individual liberty, doubly guaranteed by the constitutions,
State and Federal, we are quite abreast of the more intelligent
legislation of European countries as to hours of labor, women's and
children's, except in a few States. But it should be remembered that
these are largely agricultural or mining States, and doubtless when
the abuse of child and woman labor presents itself it will be met as
frankly and fairly there as in others.

On the constitutionality, if not the economic wisdom of laws
regulating the hours of labor of women, at least of adult years, there
still is decided difference of opinion. Logically it would perhaps
seem as if those who believe in the "Woman's Rights" movement of
uniform function for women and men, should be opposed to all such
legislation; both on theoretical grounds as being a restraint of
personal liberty, and as unequal legislation handicapping woman in her
industrial competition with man. This was certainly the earlier
view; but under the influence of certain voluntary philanthropic
associations the tendency at present seems to be the other way.

The States which have laws prohibiting any labor of children whatever,
even, apparently, agricultural or domestic,[1] are: Arizona, Arkansas,
Connecticut, Colorado, Delaware, Florida, Idaho, Illinois, Kansas,
Kentucky, Maryland, Missouri, Massachusetts, Minnesota, Montana,
Nebraska, New York, North Dakota, Oregon, Washington, and Wisconsin.

[Footnote 1: The New York law applies to "any business or service,"
but I assume this cannot mean service rendered to the parents in the
house or on the farm; in fact it may be generally assumed that all
these laws, even when they do not say so, mean only employment for
hire; the Oregon and Wisconsin laws, to "any work for compensation";
the Washington law to "any inside employment, factory, mine, shop,
store, except farm or household work." Arkansas, Delaware, Idaho, and
Wisconsin, to "any gainful occupation"; Maryland, to "any business,"
etc., except farm labor in summer; Colorado, to labor for
corporations, firms, or persons; the other State laws to any work.]

And the age limit fixed for such general employment is (without regard
to schooling) under twelve, in Idaho and Maryland; under fourteen in
Delaware, Illinois, and Wisconsin; and under fourteen for boys and
sixteen for girls in Washington, if without permit, and under fifteen,
for more than sixty days without the consent of the parent or guardian
in Florida; in other States the prohibition rests on educational
reasons, and covers only the time of year during which schools are in
session; thus, under eight during school hours, or fourteen without
certificate (Missouri); under fourteen during the time or term of
school sessions (Connecticut, Colorado,[1] Massachusetts, Idaho,
Kansas, Kentucky, Minnesota, New York, North Dakota); or under
fourteen during actual school hours (Arizona,[2] Kentucky, Nebraska,
Oregon); or under fifteen in Washington,[1] and under sixteen as
to those who cannot read and write (Colorado, Connecticut,[3]
Illinois,[3],[4]) or have not the required school instruction (Idaho,
New York[1],[4]), or during school hours (Arkansas, Montana[1]), or
who have not a labor permit (Maryland, Minnesota, Wisconsin). This
résumé shows a pretty general agreement on the absolute prohibition of
child labor under fourteen, or under sixteen as to the uneducated; and
the penalty is in most States only a fine inflicted on the employer,
or, in some cases, the parent; but in Florida and Wisconsin it may be
imprisonment; as it is in Alabama for a second offence.

[Footnote 1: Without schooling certificate.]

[Footnote 2: Without certificate of excuse.]

[Footnote 3: Unless the child attends a night school.]

[Footnote 4: Without age certificate.]

But more States fix a limit of age in the employment of children in
factories or workshops, and particularly in mines; not so usually,
however, in stores.[1] The age of absolute prohibition is usually
fixed at fourteen or at sixteen in the absence of a certain amount of
common-school education. These States are: Alabama,[2] Arkansas,[3,9]



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