John Rogers Commons.

Principles of labor legislation online

. (page 7 of 56)
Online LibraryJohn Rogers CommonsPrinciples of labor legislation → online text (page 7 of 56)
Font size
QR-code for this ebook

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.


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.


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

(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.


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.


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.


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).


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).


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.


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.


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


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.


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-


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

Online LibraryJohn Rogers CommonsPrinciples of labor legislation → online text (page 7 of 56)