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give effect to the legislature's standards of industrial wel-

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.


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

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-


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

(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



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


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


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

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


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-

2 Report on Condition of Woman and Child Wage-Earners in the United
States (6ist Congress, 2d Session, Senate Doc. No. 645), p. 44.


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.


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

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.


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.


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

Online LibraryJohn Rogers CommonsPrinciples of labor legislation → online text (page 47 of 56)