Twelfth Annual Report of the Bureau of Statistics and Information of Maryland. 1903. Thomas A. Smith, Chief. (Volume 1904) online

3. The Chief shall not grant a permit until after an inspection of
the premises (Sec. 149 EE).

4. He must state in said permit the maximum number of persons
allowed to be employed in such room (Sec. 149 EE).

5. He may revoke said permit at any time the health of the com-
munity, or those employed or living upon the premises may require it
(Sec. 149 EE).

6. Semble. He may withhold a permit for the same reasons that
he may revoke one previously granted.

Now which of these powers is an arbitrary or unreasonable power?

Surely not No. i, nor No. 2, because it simply authorizes him to
enter any room where and while manufacturing is going on, for the
purpose of inspection. Health inspectors have this right, and it has
never been questioned. Nor No. 3, which compels him to inspect or
have inspected the premises before granting the permit. Nor No. 5,
which confers no greater power than the quarantine laws, which have
been upheld by all the Courts of the land. (Deems' Case, 80 Md. 175.)

It is true that powers 4 and 6 are more liable to abuse than the
others, but they are not on that account arbitrary or unreasonable.
They are the only powers the exercise of which may offend the appli-
cant for a permit. To say that the Chief of the Bureau may be in-
fluenced by corrupt or partisan considerations in granting or with-
holding permits is no argument against the law, any more than it would
be against the law creating the Health Department of Baltimore City
and clothing the Health Commissioner and his inspectors with powers
equally as broad and even more far reaching, or against the law creat-
ing the Liquor License Commissioners of Baltimore City and clothing
them with the power to grant and withhold licenses, with no right of
appeal, although the right of personal liberty and private property is
involved.

Discretion must be lodged somewhere, and it is too much to expect
that it will not be sometimes abused. But danger of abuse will not be
permitted to defeat salutary legislation. Laws are seldom, if ever, per-
fect in their operation, and in government, as in business and every
other field of activity, experience and time are the truest and safest
teachers.



88 REPORT OF THE BUREAU OF

BRIEF FOR APPELLEE, BY MESSRS. FOUTZ & NORRIS,
AND MR. MYER ROSENBUSH.

The Appellee was indicted for violating what is known as "the
Sweat Shop Law," the five counts in the indictment being based upon
Chapter loi of the Act of 1902.

Demurrers were filed to all the counts in the indictment, the de-
murrers being sustained by the Court, a motion to quash the indict-
ment was made, the motion was granted, the indictment quashed, and
from the rulings of the Court this appeal taken.

The sole question presented by the Record is the constitutionality
of the Chapter loi of the Act of 1902, and the Appellee contends that
the provisions of the Act violate the rights of the citizen as guaranteed
by Section i of the 14th Amendment to the Constitution of the
United States and the 23d Article of the Bill of Rights of Marylnad.

The act provides

That in no room or apartment in any tenement or dwelling house
shall be used:

For the manufacture of coats, vests, trousers, knee-pants, overalls,
cloaks, shoes, hats, caps, capes, suspenders, jerseys, blouses, waists,
waistbands, underwear, neckwear, furs, fur trimmings, fur garments^
shirts, purses, artificial flowers, cigarettes or cigars; except by the
immediate members of the family living therein, and such family is
limited to husband and wife, their children or the children of either.

That neither such family, nor any member thereof shall use any such
room or apartment, without first having obtained a permit from the
Chief of the Bureau of Industrial Statistics, stating the maximum
number of persons which he may allow to be employed therein.

That such permit shall not be granted until after an inspection of
the premises.

And such permit may be revoked by said Chief at any time when
(in his judgment) the health of the community, or those employed, or
living, in such room or apartment, may require.

The Chief of the Bureau and his deputies have the right at all
reasonable times to enter any rooms or apartments, where any goods
are being manufactured, for the purpose of inspection, and the persons
in control are required to furnish access thereto.

The penalty for any violation of the law is a fine not exceeding
$100, or imprisonment not exceeding one year, or both.

Other provisions of the Act prescribe certain conditions upon which
any person or corporation may hire or employ others to work at mak-
ing the articles referred to; requiring a like permit, revocable in like
manner, and also requiring all persons or corporations contracting for



STATISTICS AND INFORMATION. 89

the manufacture of any of these articles in question, or giving out
materials out of which they are to be made, to keep a register of the
persons with whom they contract, or to whom tlicy give (jut such ma-
terials.

The Statute applying to every tenement or dwelling house in the
State of Maryland, and the subject matter of the Act being an at-
tempted sanitary regulation of the manufacture of certain articles, con-
sisting chiefly of wearing apparel, in the houses of the people who
make them, the first inquiry is, what is meant by the constitutional
guarantees referred to.

The liberty mentioned in the 14th Amendment to the Constitution
means not only the right of the citizen to be free from the mere physi-
cal restraint of his person, as by incarceration, but the term is deemed
to embrace the right of the citizen to be free in the enjoyment of all
his faculties, to be free to use them in all lawful ways, to live and work
where he will, to earn his livelihood by any lawful calling, to pursue
any livelihood or avocation, and for that purpose to enter into all con-
tracts which may be necessary and essential to his carrying out to a
successful conclusion the purposes above mentioned.

AUgeyer vs. Louisiana, 165 U. S. 589.

In re Jacobs, 98 N. Y. 98.

People vs. Marx, 99 N. Y. 387.

Long vs. State, 74 Md. 565, 572.

Luman vs. Hutchins, 90 Md. 25.

Singer vs. State, 72 Md. 464.

State vs. Broadbelt, 89 Md. 565.

Butchers Co. vs. Crescent City Co., 11 1 U. S. 746, 757.

Lawton vs. Steele, 152 U. S. 136-8.

In re Sing Lee, 96 Cal. 354.

In re Hong Wah, 82 Fed. Rep. 623.

Bailey vs. People, 190 111. 28-37.

Tiedeman S. & F. Control, Sees. 120-147.

The Act absolutely prohibits the manufacture of any of the enumer-
ated articles by anybody, unless a permit is first obtained. And
under what circumstances may a permit be demanded as a matter of
right by a citizen from the Chief of the Bureau of Industrial Statistics?
The Act utterly fails to provide any standard or regulations which
are to govern the citizen in the manufacture of the articles enumerated,
or, the said Chief in the issuance, withholding or revoking of the per-
mit, except the judgment of the said Chief of the Bureau of
Industrial Statistics ; in other words, none of the enumerated article.*
may be manufactured in any house in this State, even when they are for
the USE OF THE FAMILY ALONE, unless a permit is first had and obtained
from said Chief, whose power to issue or withhold the permit is abso-
lutely uncontrolled by anything contained in the Act itself.



90 REPORT OF THE BUREAU OF

(2) Only a husband, wife, their children or the children of either,
under the provisions of the Act, may manufacture any of the articles
enumerated, x\fter having obtained a permit; all others are expressly
excluded ; the parents of a husband or wife, the brothers and sisters
of a husband or wife and all collateral relatives of either living in the
same house or visiting there are absolutely prohibited from the manu-
facture of any of the enumerated articles, even though they are intended
for their own personal use, or the use of the husband, wife, or their
children or the children of either.

(3) The employment of a seamstress in any home in the State for
the manufacture of any of the enumerated articles is absolutely pro-
hibited by the Act.

(4) If a husband's wife be an invalid, and his children too young
to make their own garments, he must either purchase or have them
made outside his home, under the prohibition of the Act; no relative
can make them for him in his home nor can he employ anyone else to
come to his home and make them.

WHAT THE ACT DOES NOT FORBID.

(1) Chewing and smoking tobacco, candy and other articles of like
nature, not being under the ban of the Act, may be made in tenements
or dwelling houses.

(2) The Act does not prohibit the manufacture of ladies' skirts,
although ladies' waists come under the ban of the Act, presenting the
anomaly of allowing the manufacture of that portion of a woman's
dress called 5kirts, anywhere, but prohibiting the manufacture of
that portion of a woman's dress called waist, except under the con-
ditions prescribed by the Act.

The manufacture of the articles enumerated, is not only a lawful
calling, but is universally known to be a necessary and useful occupa-
tion, and it is a matter of common knowledge that its prosecution under
ordinary conditions is not injurious to the health of the public, or those
engaged in it, and an Act which arbitrarily prohibits their manufacture
even under The most favorable sanitary conditions is an unjust
and unlawful discriminating in restraint of trade.

City of Chicago vs. Netcher, 183 111. 104.

Le Blanc vs. Mayor, etc., 106 La. 680.

Long vs. State, 74 Md. 565-572.

City of Denver vs. Back, 26 Colo. 530.

State vs. Granneman, 132 Mo. 326.

Ex-parte Leo Gentzseh, 112 Cal. 468.

Eden vs. People, 161 111. 296.

In re Fee Toy, 26 Fed. Rep. 611.

In re Sam Kee, 31 Fed. Rep. 680.



STATISTICS AND INFORMATION. 9 1

City of Janesville vs. Carpenter, ^^ Wis. 298.
In re Sing Too Quau, 43 Fed. Rep. 359.
Bx-parte Patterson (Texas), 51 L. R. A. 654.
Bailey vs. People, 190 111. 28.
Nole vs. People, 187 111. 587.

It may be argued by the State that the preceding sections of the
sub-title of the Article under which this Act has been placed, furnish
the necessary rules or standard by which the Chief is to be governed
in his inspections ; the only regulation (exclusive of those which apply
to factories, manufacturing establishments, and workshops, which have
no application here, as the Act of 1902 specifically alludes to tenements
and dwelling houses,) is in relation to the number of cubic feet, and if
that were intended, how easy it would have been for the Legislature
to have said that the preceding legislation shall apply to tenements and
dwelling houses, instead of framing entirely new legislation. The Act
is, and was intended to be, applicable to entirely separate and distinct
conditions frorn any other, is complete in itself, and should be so con-
strued; it must stand or fall upon its own strength or weakness, and
the mere fact that it is found in that particular company is no standard
for construction ; it had to be placed somewhere ; but "very little re-
liance can be placed upon the heading under which it may be found."

State vs. Popp, 45 Md. 432.

Dundalk Co. vs. Smith, et al., (Ct. App. Jan. Term, 1903).
D. R. April 20, 1903.

The Act deprives the citizen of his property, without due process of
law, in that he is prevented from using the same in the prosecution of
a lawful trade or occupation, in a lawful manner, when the same is
not a menace to the public health, and where it is not used for purposes
dangerous to the public safety or morals.

The provisions of the Act are unjust and unreasonable, oppressive
and burdensome, arbitrary and unnecessary for the public welfare, and
although by the enacting clause, its object might be supposed to be the
preservation of the public health, the Act itself prescribes no con-
ditions as to cleanliness, no regulations as to sanitation, no rules to
control the issuance of the permit which is a prerequisite to the
making of any of the enumerated articles by anybody. And the
entire question of proper sanitary conditions is left to determination of
the Chief of the Bureau of Industrial Statistics, without prescribing
any rules or standard for his guidance or control in granting or re-
fusing permits, or the revoking of the permits which may be granted.



92 RjePORT OF THE BUREAU OF

ARBITRARY POWER VESTED IN CHIEF OF BUREAU OF INDUSTRIAL STATISTICS.

A permit is not to be granted by the Chief of the Bureau until after
an inspection of the premises has been made.

Neither the Chief of the Bureau of Industrial Statistics nor his as-
sistant are required to be sanitary experts by the Act of 1902, or any
prior legislation. A college president or a coal heaver, a ward poli-
tician or a bank clerk may be appointed to these positions, and there is
nothing in the Act to prohibit it, nor is anything contained in the Act
creating that Bureau (1892, Chap. 29) requiring it.

The houses of the thousands of our citizens who are employed in the
manufacture of the various articles enumerated in the Act, are opened
by the Act of 1902 for the purpose of inspection.

As to the character and extent of that inspection ; as to the condi-
tions that should obtain before a permit is issued, THE ACT IS AB-
SOLUTELY SILENT.

As to the requirements necessary for the safety of the health of the
community or those employed or living in any room or apartment in
any tenement or dwelling house, the violation of which will cause a
revocation of a permit already granted, again the Act is silent, the only
provision as to the revocation of a permit already granted being "such
permit may be revoked by said Chief of the Bureau of Industrial Statis-
tics at any time the health of the community or those employed or
living therein may require it."

Absolutely no conditions are laid down by the Act with which these,
thousands of our people must comply before they can pursue the occu-
pation by which they earn their livelihood and support those dependent
upon them ; as to those working in their homes, no requirements are
mentioned, no standard is provided, their right to pursue their usual
vocations, lawful in itself, in a lawful manner in their own homes, is
left solely and entirely to the arbitrary determination of the Chief of
the Bureau of Industrial Statistics, without any rules to guide or con-
trol his action, or by which the uniform and impartial exercise of his
power may be secured; this right to earn their livelihood is subject to
the undirected and uncontrolled power of this Chief of the Bureau, and
placed at the risk of his incapacity, favoritism, caprice and oppression,
so far as any restraint is to be found in the Act ; he gives, refuses and
revokes the permits as he pleases.

"A Statute which clothes a single individual with such power hardly
falls within the domain of law."

Mayor vs. Cadeke, 49 Md. 217-235.
Yick Wo vs. Hopkins, 118 U. S. 356-372.
Nole vs. People, 187 111. 589.
Schaezlein vs. Cabannis, 135 Cal. 466.
Bostock vs. Sams, 95 Md. 4CX).
In re Jacobs, 98 N. Y. 98.



STATISTICS ANDINI-'ORMATION. 93

The constitutionality of a law is to be tested not by what has beern
done under it, but by what may by its authority be done.

• Ullman vs. Mayor & C. C, 72 Md. 587. '

If would be difficult, if not impossible, to crowd into so short d Statute
any more or greater violations of that principle so essential to a free
governmenl of equal, general and standing laws.

City of Janesville vs. Carpenter, T] Wisconsin 303.

The Act is void as a whole, all its substantial provisions are so re-
lated to and dependent upon each other that the Legislature could have
had but one main object or system in view, and without the provisions
which are invalid the Act would not have been passed.

If a Statute attempts to accomplish two or more objects and is void
as to one, it may still be in every respect complete and valid as to the
other.

But if its purpose is to accomplish a single object only and some of
its provisions are void, the whole must fail unless sufficient remains to
eflfect the object without the aid of the invalid portion, and if they are
so mutually connected with and dependent on each other as conditions,
considerations or compensations for each other as to warrant the belief
that the Legislature intended them as a whole, and if all could not be
carried into effect, the Legislature would not pass the residue inde-
pendently; then if some parts are unconstitutional all must fail.
Cooley Const. Lim., 6 Ed. p. 211.

In Commonwealth vs. Perry, 155 Mass. 121, the Court said: "The
manufacture of cloth is an important industry =)= * * there is no
reason why men should not be engaged in it * * * the right to
employ weavers, and to make proper contracts with them, is therefore
protected bj^ our Constitution ; and a Statute which forbids the making
of such contract, or to nullify them, or impair the obligations of them,
violates fundamental principles of right which are expressly recognized
in our Constitution."

Godcharles vs. Wigman, 113 Pa. St. 431.

State vs. Goodwill, ZZ W. Va. 179.

State vs. Loomis, 115 Mo. 307.

People Ex. Rel. Rodgers vs. Coler, 166 N. Y. 14.

People Ex. Rel. Treat vs. Coler, 166 N. Y. 146.

It is true that, in order to secure and promote the public welfare, the
State creates Boards of Health, as an instrumentality or agency fok
THE PURPOSE, and invests them with the power to adopt ordinances, by-
laws, rules and regulations necessary to secure the objects of its or-



94 REPORT OF the; bureau op

ganization. While it is true that the character or nature of such
boards is administrative only, still, the powers conferred upon them by
the Legislature, in view of the great public interest confided to them,
have always received from the Courts a liberal construction ; and the
rights of the Legislature to confer upon them the power to make
REASONABLE RULES, by-laws and regulations, is generally recognized
by the authorities.

When these boards duly adopt rules or by-laws by virtue of legislative
authority, such rules or by-laws, within the respective jurisdictions,
have the force and effect of a law of the Legislature.

It is true that such laws or regulations must be reasonable, and
Boards of Health cannot enlarge or vary, by operation of such rules,
the powers conferred upon them by the Legislature, and any rule or
by-law which is in conflict with the State's organic law, or opposed to
the fundamental principles of justice would be invalid.

Such measures must have some relation to the end in view, for,,
under the guise of the police power, personal rights and those pertaining
to private property will not be permitted to be arbitrarily invaded by
the legislative department.

If the Legislature, in the interest of the public health, enacts a law,
and thereby interferes with the personal rights of an individual, de-
stroys or impairs his liberty or property, it then, under such circum-
stances, becomes the duty of the Courts to review such legislation, and
determine whether it in reality relates to, and is appropriate to secure,
the object in view, and in such an examination the Court will look to
the substance of the thing involved, and will not be controlled by mere
forms.

Blue vs. Beach, 155 Ind. 121.
; State vs. Burdge, 95 Wis. 390.

i State vs. Julow, 129 Mo. 163.

Matter of Pell, 171 N. Y. 48-51.
; " Cotting vs. Kansas City, 183 U. S. 79-93.

'â– . Cleaveland vs. Clemen & Bro. (Ohio 1903), 6$ N. E. Rp. 885.

' Street vs. Varney (Ind. 1903), 66 N. E. Rep. 895.

i People vs. Orange, etc. (N. Y. Ct. App. April 28, 1903),

New York Law Journal, May 4, 1903.

The Act is unreasonable, arbitrary and oppressive; it interferes with
the right of the citizen to pursue unmolested a lawful calling in a law-
ful manner; it invades the privacy of the home, and, without due pro-
cess of layvr, it deprives the citizen of the free and profitable use of his
property, and infringes upon his right of personal liberty. The Act of
1902, Chapter loi, is unconstitutional and void and the demurrers
were properly sustained.



STATISTICS AND INFORMATION. 95



OF THK .

FREE EMPLOYMENT BUREAU



The report of the work of the Free Employment Bureau
for the first six months, published in the Eleventh Annual
Report of this Bureau, was encouraging and satisfactory, and
led to the hope that the commercial and manufacturing estab-
lishments of the city and State would avail themselves of its
facilities and be constant applicants for whatever help they
might need in their business. In this the Bureau has been
somewhat disappointed.

Through the courtesy of Secretary Forrest, of the Mer-
chants and Manufacturers' Association of Baltimore, letters
were sent to all its members, and a number of cardboard signs
were also placed in numerous places, informing the public
that the Free Employment Bureau was ready to supply them
with help.

The great need of the Bureau is advertising and making
known to the people of the State, and especially in the indus-
trial centres, the fact that this Bureau is doing business, and
will furnish them with good help free of charge. It is very
difficult to make our citizens understand that this work,
assumed by the State, is not a charitable work alone, but one
designed to make it easy for our citizens to secure places to
earn a living, and at the same time to lessen the number of
victims of the agencies which have ofttimes made it a busi-
ness to fleece their patrons.

To the credit of the people in the counties it is to be said
that they have recognized the merit of this institution, and
have, to a very large extent, availed themselves of its service
in securing farm labor, and as the institution becomes better
known it becomes better appreciated, and the field of its
work enlarges.

It is safe to say that in a very short time this Bureau will be
supplying help to all parts of the State, if such help is avail-



96 REPORT OF THE BUREAU OF

able. In this connection it is well to say that some steps
ought to be taken to bring foreign labor to the State of
Marj'land. It is well known that thousands of Germans,
Swedes, Russians and .others in the crowded portions of the
old country would be glad to find homes and regular employ-
ment in such a pleasant location as Maryland, and it is our
belief that facilities and means should be offered for bringing
these immigrants into Maryland, where there are so many
needed on the farms and in the factories.

The negro help in the counties has, according to the
farmer, been considerably deteriorating in value, the younger
generation of negroes especially seeking city life and city
attractions.

The Bureau of Immigration, if provided with ample means,
should easily be the instrument for increasing our population
by a large influx of this foreign element. Thousands are
brought over annually into the port of Maryland for the far
West, and if steps were taken on the other side, before they
left their homes, they might find their destination in the
counties of this State, adding to its growth, its wealth audits
prosperity. Many of the Western States have time and
again devoted thousands of dollars to this work, through
agents stationed in European countries, by offering some
incentive to those who directed the stream of immigration.

A total of 652 persons made application to the Bureau
during the past year for situations. Of this number 543
were males and 109 were females. This was 150 persons more
than applied for positions last year, and shows a healthy
growth and a widening knowledge of the existence of the
work of the Bureau. The greatest number of applications
for various positions were received in the month of March,
thus indicating that more people were idle early in the year
than in the later months. The greatest number of positions
secured was in the month of May; but this was owing to the
fact that a number of laborers and others were sent to the
country as berry-pickers, though they had not applied for
this kind of position particularly. The records show that
early in the year, and in the latter part of the year; that is



STATISTICS AND INFORMATION. 97

January, February and March, and in the months of Novem-
ber and December more persons are out of positions than in
any other portions of the year. This is probably due to the
fact that the spring season has not commenced and the fall
business is nearly over.

The applications for help, however, were greatest in the
months of March and June, but mostly from farmers.