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U. S. DEPARTMENT OF LABOR
JAMES J. DAVIS, Secretary

BUREAU OF LABOR STATISTICS
ETHELBERT STEWART, Commissioner

BULLETIN OF THE UNITED STATES )
BUREAU OF LABOR STATISTICS ) •

No. .321

L A B O R LAWS OF T H E U N I T E D ST A T E S S E R I E S

LABOR LAWS THAT HAVE BEEN
DECLARED UNCONSTITUTIONAL

By UNDLEY D. CLARK

NOVEMBER, 1922

WASHINGTON
GOVERNMENT PRINTING OFFICE
1022

CONTENTS.

Page.
Class of laws considered________________ :_______________________ 1, 2
Basis of legislative action_______________i.-------------------------------— 2, 3
Constitutional restrictions------------------------------------------------------------ 3 -10
Laws, etc., declared unconstitutional______________________________ 10-84
Laws affecting the contract of employment:
Repayment of employers’ advances: Alabama (two statutes),
Florida, Louisiana (two statutes), North Carolina, South
Carolina_____________________________________________ 11-13
Breach: Alabama (two statutes), Georgia (two statutes), Mis
sissippi, South Carolina, Virginia—------------------------- .---------13-15
Statement of cause of discharge: Georgia, Kansas, Massa
chusetts, Texas_______________________________________ 16,17
Blacklisting: Indiana____________________________________ 17
Tips : California, Iowa__________________________
18
Examination, registration, etc., of workmen:
_
Barbers: Louisiana, Michigan, Missouri, Texas, Washington-----18,19
Mechanical employments: Louisiana (statute and ordinance)_ 20
Peddlers: Michigan______________________________________ 20
Horseshoers : Illinois, New York, Washington________________ 20
Plumbers: Georgia (ordinance), Minnesota, New York, Ohio,
Texas (statute and ordinance), Washington, Wisconsin____20-22
Cement contractors: Wyoming (ordinance)_______________—
22
Electricians: Louisiana--------22
Mine foremen : Pennsylvania_____________________________ 22, 23
Stationary engineers: Ohio_______________________________
23
Railroad employees: Alabama, Ohio, Texas_________________ 23,24
Employment of women and children:
Females as waitresses in wine cellars: California__________ 24, 25
Children: Pennsylvania, United States (two statutes)________ 25
Protection of local labor:
Employment on public works: Illinois, New York____________ 26, 27
Tax on alien employees: California, Pennsylvania____________ 27
Employment of aliens: Arizona, California (constitution, statute,
ordinance), Colorado, Idaho, Oregon_____________________ 27-30
Immigration: California (two statutes), Louisiana, United
States________________________________________________ 30,31
Extrastate products: Alabama (ordinance), Maryland (two
statutes), Missouri, New York__________________________ 31,32
Convict-made goods: Massachusetts,New York, Ohio__________ 32, 33
Municipalities engaging in business: Georgia (ordinance), Massa
chusetts (two bills), Michigan, Missouri (ordinance), Virginia
(ordinance)______________________________________________ 33
Employment offices:
Fees: California, Washington___________
34
Service by public offices: Illinois________ !_________________ 34, 35
Emigrant agents : Alabama, North Carolina_________________ 35
Unemployment relief: Idaho--------------------------------------------------35
Compulsory labor: Missouri (ordinance), West Virginia__________ T 35,36
Wages:
Rates on public works: Indiana, Nebraska, New York, Pennsyl
vania (ordinance), Wisconsin (ordinance)_________________ 36-38
Deductions for defective work: Massachusetts_______________ 38
Weighing coal at mines: Colorado (bill), Illinois, Ohio, Pennsyl
vania------------------------------------------------------------------------ 38,39

CONTENTS,

Laws, etc., declared unconstitutional—Concluded.
Wages—Concluded.
PageMechanics’ liens: California, Illinois, Michigan, Minnesota, Ohio,
Pennsylvania_____________________________. ___________ 39-42
Restrictions on contractors: California, Texas-----------------------42,43
Suits—Attorneys’ fees: Alabama, California, Colorado, Florida,
Illinois, Kansas, Michigan (three statutes), Mississippi, Mon
tana, Ohio, Oklahoma, Texas,Utah, Wyoming________________43-45
Garnishment, assignments, etc.: Illinois (two statutes), Minne
sota, Missouri, Texas___________________________________ 45,46
Time of payment: Arkansas, California (three statutes), Illinois,
Indiana (three statutes), Louisiana, Maryland, Michigan, Ohio,
Pennsylvania (two statutes), Tennessee, Texas________ ___ 46-50
Scrip, store orders, etc.: Arkansas (two statutes), Colorado
(bill), Illinois, Indiana, Kansas, Maryland, Missouri (two stat
utes), Ohio, Pennsylvania, Tennessee (two statutes), Texas,
' West Virginia___________________________________
50-53
Hours of labor:
Public work^; California (ordinance), Illinois (ordinance),
Kansas (ordinance), Massachusetts (bill), New York, Ohio,
Washington (ordinance)________________________________ 53-55
Private employments: Alaska, California (ordinance), Colorado
(bill and statute), Louisiana (two statutes), Massachusetts,
Missouri (two statutes), Nebraska, New York (two statutes),
Ohio, Oregon (ordinance), Utah, Washington, Wisconsin____55-60
Women: Colorado, Illinois, New York, Wyoming_____________ 60, 61
Sunday labor: California (three statutes), Illinois (statute and
ordinance), Indiana, Kentucky, Missouri, New York, Tennessee__61,62
Liability of employers for injuries to employees: Alabama, Indiana,
Louisiana, Mississippi, New Mexico, Ohio, Pennsylvania, South
Dakota, United States_____________________________________ 62-67
Workmen’s compensation: Arizona, California (three statutes),
Kansas, Kentucky, Louisiana, Maryland, Montana, New Jersey,
New York (two statutes), Pennsylvania, Tennessee, United States. 67-73
Pensions and insurance systems: Arizona, New Hampshire (bill),
New York (ordinance)_____________________________________ 73
Inspection and regulation of work places!
Factories and workshops: California (statute and ordinance),
Hawaii, Illinois, Minnesota, Missouri, Montana, New York___ 73-75
Street railways: Texas__________________________________
75
Mines: Illinois, Kentucky___________________ ____________ 75, 76
Labor organizations:
Antitrust law exemptions: Illinois, Nebraska________________76, 77
Trade marks and badges: Montana, New Jersey—____________ 77
Union label on public printing: Georgia (ordinance), Illinois
(ordinance), New Jersey (ordinance), Tennessee (ordinance). 77,78
Union labor on public works: Illinois (ordinance), Michigan,
Montana, Nebraska____________________________________ 78
Protection of workmen as members: Colorado, Kansas, Massa
chusetts (bill), Minnesota, Missouri, Nevada, New York,
Ohio, Oklahoma, Pennsylvania, Wisconsin, United States___ 78-80
Notice of labor disputes: Illinois__________________________ 80
Injunctions and contempts: Arizona, California, Massachusetts (two
statutes), Missouri, Oklahoma, Virginia, 'United States_________ 80-83^
Picketing: Missouri (ordinance), Oregon (ordinance)^_____^_____ 83
Arbitration of labor disputes: Kansas, Missouri_________________ 83,84
Protection of employees as voters: United States________________
84
Cases cited-------------------------------------85-90

BULLETIN O F THE

U. S. BUREAU OF LABOR STATISTICS.
n o . 321

WASHINGTON

No v e m b e r , 1922

LABOR LAWS THAT HAVE BEEN DECLARED UNCONSTITUTIONAL
LINDLEY D. CLARK, A . M ., LL. M .

CLASS OF LAWS CONSIDERED.

The enactment of statutes declaring the status and relations of em
ployers and employees and fixing standards of employment condi
tions, contractual and physical, is an expression ox the purpose to
equalize to some extent the situation of the wage earner as compared
with that of the proprietor. The power of determining rates of pay,
hours of labor, safeguarding dangerous occupations, and securing
a measure of relief from the results of industrial accidents does not
rest with the industrial worker; nor can individual employers effec
tively plan and execute the necessary arrangements for all these ends
if they so desire. Laws of general application place all affected on
an equal footing and express a collective opinion as to what is desir
able in the field covered, facilitating its attainment by supervised
cooperation. But the tendency on the part of some to oppose all
change, especially where there is an apparent restriction of pre
viously enjoyed freedom of action, or an increase of responsibility,
has led to frequent legal contests as to the validity of such legisla
tion. While the laws come before the courts usually as the result of
the contention of a party affected thereby, in a few State's, as Massa
chusetts, Maine, and New Hampshire, the supreme court of the State
may advise the legislature, on request, as to the constitutionality of
a bill before it. No such power exists in the absence of an express
provision of the constitution, the custom being a survival of the days
preceding the separation of the legislative and judicial powers, when
the judges were members of the great council of the realm. When
the judges so act, it is “ not as a court, but as the constitutional ad
visers of the other departments.” 1 While by far the greater part of
the laws commonly designated labor laws have been declared a
proper exercise of legislative authority, the courts have in a consider
able number of cases decided adversely to their constitutionality,
either in whole or in part. No exact definition of laws of this class
has been attempted, nor, in the nature of things, is such a definition
1In re Workmen’s Compensation Fund (1918), 224 N. Y. 13, 119 N. E. 1027.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

feasible. There are many laws which more or less directly affect the
conditions of wage earners, but inasmuch as they are of general ap
plication and relate to and in practice affect other persons equally
with wage earners, such laws can not be specifically included under
the head of labor legislation.
This compilation is intended to cover the field of the decisions hold
ing laws and ordinances unconstitutional, so far as a careful exami
nation has discovered such decisions, restricting the discussion to
those provisions of law that in some direct sense affect employers and
employees as such, or that determine the rights and obligations of
these particular classes. In some instances, however, laws of gen
eral application, which were not primarily addressed to the subject
of the relations of employers and employees, have been included
because in actual effect these laws have been found to concern these
classes and their relations in a particular and exceptional way.
The laws that have been found to be unconstitutional and the
grounds for such finding are obviously of value and importance to
any complete understanding of the movement for labor legislation
and of the limitations within which the movement must' necessarily
operate. In all but a very few instances the decisions here noted
have been those of courts of last resort of the State in which the law
was enacted or of the Supreme Court of the United States. Where
this rule is departed from the fact will be noted, and in the main
these exceptions are cases in which the decision has been accepted as
final and no further action attempted under the law. About 300 de
cisions are reviewed, besides a number of contrasting and illustrative
cases.
BASIS OF LEGISLATIVE ACTION.
It may be premised of all legislation of the general class here con
sidered that it is restrictive in some form or degree of the conduct
of the parties to whom it applies, employer or employee, or both; and
as a restriction upon the liberty of action and the free use of property
that are supposed to inhere in all men alike, the courts require that
justification must exist for its enactment. This is found, in general,
in what is known as the police power of the State. What this power
is, is not a matter of accurate definition inasmuch as it concerns the
policy of individual States and is subject to growth and change with
changing industrial and social conditions.2
The police power, in its broadest acceptation, means the general
power of a government to preserve and promote the public welfare
by prohibiting all things hurtful to the comfort, safety, and welfare
of society, and establishing such rules and regulations for the conduct
of all persons and the use and management of all property as may be
conducive to the public interest.3 It relates to the safety, health,
morals, and general welfare of the public. Both property and liberty
are held on such reasonable conditions as may be imposed by the
governing power of the State in the exercise of this power.4 In the
case just cited it was said that this power exists in the sovereignty
of each State, but is none the less subject to the inquiry whether any
2Atkin v. Kansas (1903), 191 U. S. 207, 24 Sap. C t 124; Holden v. Hardy (1897),
169 U. S. 366, 18 Sup. Ct 383.
3 Am. & Eng. Cyc. of Law, vol. 22, p. 916.
4 Lochner v. New York (1905), 198 U. S. 45, 25 Sup. C t 539.

3
particular exercise of it or enactment under it is fair, reasonable, and
appropriate, or whether, on the other hand, it is an unreasonable,
unnecessary, and arbitrary interference with the right of individuals
to their personal liberty. However, not every invasion of the right
of liberty or property will be condemned,56and it will be left to the
legislatures of the States to declare, as the representative of the peo
ple, what restrictions, within the constitutional limitations, will be
placed on the freedom to contract; and it is laid down by our highest
tribunal that, while it is the duty of the courts to guard the constitu
tional rights of the citizen against merely arbitrary power, it is equally
true and imperatively demanded that legislative enactments declaring
the policy of the State should be recognized and enforced by the
courts unless they are plainly and beyond all question in violation of
the fundamental law of the Constitution.*
Though the rule as thus stated is authoritative, it is far from being
self-interpreting, as will appear from diametrically opposite con
clusions arrived at by courts having similar questions before them.
Thus the grounds on which the original compulsory compensation
law of New York was held unconstitutional (p. 68) were before the
Supreme Court of Washington when passing on a like question, and
were rejected, the court saying:
CONSTITUTIONAL RESTRICTIONS.

We shall offer no criticism of the opinion. We will only say that, notwith
standing the decision comes from the highest court of the first State of the
Union and is supported by most persuasive argument, we have not been able
to yield our consent to the view there taken.®

The same contrast is to a greater or lfess degree in evidence in the
following quotations, the first from the opinion and the second from
a dissent in a case recently before the Supreme Court of the United
States.7 The first declares that “ The Constitution was intended—its
very purpose was—to prevent experimentation with the fundamental
rights of the individual; ” the second reads:

There is nothing that I more deprecate than the use of the fourteenth
amendment beyond the absolute compulsion of its words to prevent the making
of social experiments that an important part of the community desires, in the
insulated chambers afforded by the several States, even though the experi
ments may seem futile or even noxious to me and to those whose judgment
I most respect.

The case last cited illustrates an additional point in connection
with the subject of legislation, i. e., that of interpretation. The
statute passed upon8 is practically in the terms of the Clayton Act,
so called, but because of the interpretation put upon it by the Su
preme Court of Arizona, it was declared void (p. 81).
CONSTITUTIONAL RESTRICTIONS.

The exercise by the legislatures of their powers has been cir
cumscribed by some general restrictions designed to safeguard the
rights of the individual citizens of the States and to equalize the situ
ation of citizens of different States. These safeguards are found#n
the fundamental principles contained in the constitutions of the
5 People ex rel. Williams Engineering, etc., Co. v . Metz (1908), 193 N. Y. 148, 85 N. E.
1070; Bunting v. Oregon (1917), 243 U. S. 426, 37 Sup. Ct. 435.
6 State ex rel. Davis-Smith Co. v . Clausen (1911), 65 Wash. 156, 117 Pac. 1101.
7 Truax v . Corrigan (1921), 257 U. S. 312,
4

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LABOR LAWS DECLARED UNCONSTITUTIONAL.

States and of the United States, those most frequently referred to
being the provision of the fourteenth amendment to the Constitution
of the United States, to the effect that no State shall 44deprive any
person of life, liberty, or property without due process of law, nor
deny to any person within its jurisdiction the equal protection of the
laws;” and of the fifth amendment, which declares that no person
shall 44be deprived of life, liberty, or property without due process
of law.” So frequently are these provisions of the Constitution
referred to in the cases herein discussed that their general scope and
meaning may be, with advantage, briefly adverted to as an intro
duction to the presentation of individual cases.
These amendments did not incorporate any new ideas into our
jurisprudence, but are mere expressions of certain fundamental prin
ciples of the common law 44older even than Bunnymede,” their value
consisting in the fact that they operate upon rights already estab
lished, declaring that, such as these rights are in each State, they
shall be enjoyed by all persons alike.9 Their provisions extend not
to citizens only, but to every person within the jurisdiction of any
State of the Union, regardless of race, nationality, or citizenship.10
The phrases most frequently used—44due process of law ” and 64equal
protection of the law ”—have received judicial construction in a
multitude of cases, though the former is said to be incapable of any
but the most general definition. It is held to be the equivalent of
the 44law of the land ” and is not restricted to judicial proceedings,
the meaning and intent of the provision being to 44protect and pre
serve the rights of the citizen against arbitrary legislation as well
as against arbitrary executive or judicial action.” 11 Its effect and
meaning are to be arrived at by the gradual process of judicial in
clusion and exclusion, as the cases presented for decision require.
The principle involved is therefore fundamental and is capable of
application to every possible condition of change or development
affecting the individual or reciprocal rights of citizens, but no fixed
rule can be laid down for such application. It is bounded not so
much by precedent or custom as by the nature and inherent principle
of justice, on, the basis of which it (may occur that legal proceedings
will be newly devised in the furtherance of the public good in view
of changing conditions.12
The provision that all persons are entitled to the equal protection
of laws operates to prevent the passage of laws making discrimina
tions among persons not based on equal and just differences or making
classifications of an arbitrary nature. Burdens and privileges must
affect alike all persons in the same place and in like circumstances,
without addition or diminution. This principle guarantees to all
persons within the jurisdiction of the State the protection of equal
laws and exposes no one to an arbitrary exercise of governmental
power, but it does not interfere with reasonable classifications.13
Security of person and property., the right to acquire property, to
makfe and enforce contracts, to enjoy personal liberty and the pursuit
or happiness, and to be immune from unequal punishments for
• Barbier v . Connolly (1885), 113 U. S. 27, 5 Sup. Ct. 357.
10 Vick Wo V. Hopkins (1886), 119 U. S. 356 6 Sup. Ct. 1064.
11 State i;. Ashbrook (1900), 154 Mo. 375, 55 S. W. 627.
“ Holden v . Hardy (1897), 169 U. S. 366, 18 Sup. Ct. 383.
18Miller v . Wilson (1915), 236 U. S. 373, 35 Sup. Ct. 342; Muller t;. Oregon (1908),
208 U. S. 412, 28 Sup. C t 324.

CONSTITUTIONAL RESTRICTIONS.

offenses are among the rights thus secured, including the right to
buy and sell labor.14 “ The liberty mentioned in that [fourteenth]
amendment means not only the right of the citizen to be free from the
mere physical 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 contracts which may be proper, necessary,
and essential to his carrying out to a successful conclusion the pur
poses above mentioned.” 15
Perhaps no more satisfactory method of showing the effect and
application of this amendment, when labor legislation is under con
sideration, can be adopted than by reproducing that portion of the
opinion of the Supreme Court which discusses these points in a case
in which the constitutionality of a law of this class was challenged.16
The statute involved was enacted by the Legislature of the State of
Texas, act of April 5, 1889, and provided that in case of claims for
personal services rendered or labor done, or for damages, or for
overcharges on freight, or claims for stock killed or injured by the
train of any railway company, where the amount involved did not
exceed $50, the claimant might submit his claim, verified by his
affidavit, and if within 30 days it had not been paid or satisfied
he might sue. In case of a recovery of the full amount of his claim,
he should be entitled to an award of all costs, and in addition thereto
attorney’s fees not to exceed $10 in amount. The case under con
sideration was an action to recover damages for the loss of live
stock, but the discussion by the court involved the whole scope of
the law, and it was declared unconstitutional in its entirety. The
following quotation from this opinion not only indicates the grounds
on which this particular statute was condemned, but sets forth as
well the general principles which will beiound to be applied in most
of the cases to be considered in this review:

The single question in this case is the constitutionality of the act allowing
attorney’s fees. The contention is that it operates to deprive the railroad
companies of property without due process of law, and denies to them the
equal protection of the law, in that it singles them out of all citizens and
corporations, and requires them to pay in certain cases attorney’s fees to the
parties successfully suing them, while it gives to them no like or correspond
ing benefit. Only against railroad companies is such exaction made, and only
in certain cases.
No individuals are thus punished, and no other corporations. The act
singles out a certain class of debtors and punishes them when for like de
linquencies it punishes no others. They are not treated as other debtors, or
equally with other debtors. They can not appeal to the courts as other
litigants under like conditions and with like protection. If litigation ter
minates adversely to them, they are mulcted in the attorney’s fees of the
successful plaintiff; if it terminates in their favor, they recover no attorney’s
fees. It is no sufficient answer to say that they are punished only when
adjudged to be in the wrong. They do not enter the courts upon equal terms.
They must pay attorney’s fees if wrong; they do not recover any if right;
while their adversaries recover if right and pay nothing if wrong. In the*'
suits, therefore, to which they are parties they are discriminated against, and
are not treated as others. They do not stand equal before the law. They do
not receive its equal protection. All this is obvious from a mere inspection
of the statute.
14 Lochner v . New York (1905), 198 U. S. 45, 25 Sup. Ct. 539.
u Allgeyer v . Louisiana (1897), 165 U. S. 578, 17 Sup. Ct. 427.
M Gulf, C. & S. F. R. Co. v. Ellis (1897), 165 U. S. 150, 17 Sup. Ct. 255.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

While good faith and a knowledge of existing conditions on the part of a
legislature is to be presumed, yet to carry that presumption to the extent
of always holding that there must be some undisclosed and unknown reason
for subjecting certain individuals or corporations to hostile and discriminat
legislation is to make the protecting clauses of the fourteenth amendment
aingmere
rope of sand, in no manner restraining State action.
It is well settled that corporations are persons within the provisions of the
fourteenth amendment of the Constitution of the United States. The rights
and securities guaranteed to persons by that instrument can not be disregarded
in respect to those artificial entities called corporations any more than they
can be in respect to the individuals who are the equitable owners of the
property belonging to such corporations. A State has no more power to deny
to corporations the equal protection of the law than it has the individual
citizens.
But it is said that it is not within the scope of the fourteenth amendment
to withhold from States the power of classification, and that if the law deals
alike with all of a certain class it is not obnoxious to the charge of a denial
of equal protection. While, as a general proposition, this is undeniably true,
yet it is equally true that such classification can not be made arbitrarily.
The State may not say that all white men shall be subjected to the payment
of the attorney’s fees of parties successfully suing them and all black men
not. It may not say that all men beyond a certain age shall be alone thus
subjected, or all men possessed of a certain wealth. These are distinctions
which do not furnish any proper basis for the attempted classification. That
must always rest upon some difference which bears a reasonable and just
relation to the act in respect to wThich the classification is proposed, and can
never be made arbitrarily and without any such basis.
As well said by Black, J., in State v. Loomis, 115 Mo., *307, 314 22 S. W\
350 [see p. 50], in which a statute making it a misdemeanor for any corpora
tion engaged in manufacturing or mining to issue in payment of the wages
of its employees any order, check, etc., payable otherwise than in lawful money
of the United States, unless negotiable and redeemable at its face value in
cash or in goods and supplies at the option of the holder at the store or other
place of business of the corporation, was held class legislation and void :
Classification for legislative purposes must have some reasonable basis upon
which to stand. It must be evident that differences "which would serve for a
classification for some purposes furnish no reason whatever for a classification
for legislative purposes. The differences which will support class legislation
must be such as in the nature of things furnish a reasonable basis for separate
laws and regulations. Thus the legislature may fix the age at which persons
shall be deemed competent to contract for themselves, but no one will claim
that competency to contract can be made to depend upon stature or color
of the hair. Such a classification for such a purpose would be arbitrary and
a piece of legislative despotism, and therefore not the law of the land.
If it be said that this penalty is cast only upon corporations, that to them
special privileges are granted, and therefore upon them special burdens may be
imposed, it is a sufficient answer to say that the penalty is not imposed upon
all corporations. The burden does not go with the privilege. Only railroads of
all corporations are selected to bear this penalty. The rule of equality is
ignored.
But if the classification is not based upon the idea of special privileges, can
it be sustained upon the basis of the business in which the corporations to be
punished are engaged? That such corporations may be classified for some
purposes is unquestioned. The business in which they are engaged is of a
peculiarly dangerous nature, and the legislature, in the exercise of its police
powers, may justly require many things to be done by them in order to
secure life and property. Fencing of railroad tracks, use of safety couplers,
and a multitude of other things easily suggest themselves. And any classifica
tion for the imposition of such special duties—duties arising 'out of the
peculiar business in which they are engaged—is a just classification and not
one within JJie prohibition of the fourteenth amendment.
But arbitrary selection can never be justified by calling it classification.
The equal protection demanded by the fourteenth amendment forbids this.

The court then reviewed a number of cases involving the constitu
tionality of statutes of various sorts, concluding as follows:

CONSTITUTIONAL RESTRICTIONS.

It must not be understood that by citing we indorse all these decisions. Our
purpose is rather to show the extent to which the courts of the various States
have gone in enforcing the constitutional obligation of equal protection. Other
cases of a similar character may be found in the reports, but a mere accumu
lation of authorities is of little value. It is apparent that the mere fact of
classification is not sufficient to relieve a statute from the reach of the equality
clause of the fourteenth amendment, and that in all cases it must appear not
only that a classification has been made, but also that it is one based upon
some reasonable ground—some difference which bears a just and proper rela
tion to the attempted classification—and is not a mere arbitrary selection.
Tested by these principles the statute in controversy can not be sustained.

In addition to the provisions of the fifth and fourteenth amend
ments, noticed above, reference will be found in a few instances to
the second section of Article IV of the Constitution, which provides
that “ The. citizens of each State shall be entitled to all privileges
and immunities of citizens in the several States.” This declaration is
so simple1that it requires nothing more than a mere statement of it,
its application to legislation being clear and unequivocal. A few
cases will also be found in which the law conflicted with technical
provisions of the State constitutions.
Moreover, it may occur that the construction and application of
the law, rather than any actual provision or attendant incident, may
furnish grounds for a finding of invalidity.

Though the law itself be fair on its face and impartial in appearance, yet,
if it is applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations be
tween persons in. similar circumstances material to their rights, the denial of
equal justice is still within the prohibition of the Constitution.17

Identical provisions of law may, therefore, be sustained or con
demned, according to the construction put upon them by the courts,
which may make them as far apart “ in meaning as if they were in
wholly different language.” 18
It is a matter of common knowledge that there is a considerable
amount of opposition to the exercise by the courts of judicial super
vision over legislation in the form and to the extent indicated. This
is accentuated by the number of cases that have been decided in the
Labor field by a narrow margin. A survey of the decisions by the
Supreme Court of the United States, in which questions affecting'
labor were involved, discloses the fact that in the last 40 years there
have been 21 cases decided by a vote of four to five or four to four;
13 of these, or nearly two-thirds of the total, falling within the last
10 years. While only a minority of these passed upon questions of
constitutionality of the laws, several of them did, and it seems apparent
that the constituent members of the final arbiter of law in the
United States are with increasing frequency unable to agree as to
whether or not an act of legislation is “ plainly and palpably, beyond
all question, in violation of the fundamental law of the Constitution.”
Illustrative of this point is the experience of a New York statute,
by which it was undertaken to limit the hours of labor of bakery em
ployees. (See Lochner v. New York, p. 56.) There was first a con
viction in the city court of New York, the judge obviously regarding
the law as valid. Conviction was affirmed in the appellate division,
three to two, and in the court of appeals, four to three. The Supreme
Court held the law unconstitutional, five to four, thus nullifying by
« Yick Wo v . Hopkins (1886), 118 U. S. 356, 6 Sup. Ct. 1064. (See p. 29.)
18 Truax v . Corrigan (1921), 257 U. S. 312, 42 Slip. Ct. 142. (See p. 81.)

LABOR LAWS DECLARED UNCONSTITUTIONAL.

a margin of one in this court a law in support of which a total of 11
judges (or 12 counting the trial judge) had registered, while the
aggregate against it was 10.
Various suggestions have been made of correctives of what can
hardly be regarded as other than an undesirable situation; as by
abrogating the power to review, or requiring a unanimous bench,
or a majority of seven to two, or at least of six to three; but the
matter has never gone beyond discussion and the introduction of
bills in Congress, so far as restrictions on Federal courts are con
cerned. The States, however, have in some cases progressed further.
Thus the Supreme Court of Colorado, in passing upon the consti
tutionality of the “ anticoercion act ” of the State, had to consider
the validity of an amendment to the State constitution which pro
posed to take from all inferior courts of the State the power to de
clare laws of the States or city charters adopted by home-rule cities
unconstitutional. The supreme court of the State might exercise
that power, but subject to the referendum and recall by popular
vote. The principal act under consideration was declared uncon
stitutional (p. 79) ; whereupon the question arose as to the duty of
the officers of the court to arrange for a referendum on the decision.
The court held that, since the statute under consideration was “ a
plain violation of the Federal Constitution ” as determined by prior
decisions of the Supreme Court, to submit the case to a popular vote
would be to propose possibilities of validating a law in the State
which violated Federal constitutional principles. The impossibility
of such a step was obvious, since to hold otherwise would suggest
the power of nullification, and “ there is no sovereignty in a State
to set at naught the Constitution of the Union.” 19 It was further .
held that the inferior courts necessarily retained the power to de
termine the question of the constitutionality of any law which they
are called upon to adjudicate, subject to review and reversal by
superior courts, including the supreme court of the State, and, in
appropriate cases, the Supreme Court of the United States.
While the foregoing discussions and illustrations relate mostly
to the Supreme Court of the United States, it is not to be understood
that this court is chiefly responsible for the number of statutes that
have been declared unconstitutional. As a matter of fact, the large
majority of the decisions have been by the State courts, chiefly by
those of last resort. A cogent reason for this fact exists in the
provisions of the Judicial Code, which until 1914 made a determina
tion of unconstitutionality by a State court of last resort a finality.
This made it impossible for the State to carry to the Supreme Court
its contention that the act of its legislature was constitutional in the
face of an adverse decision bv the State court; on the other hand,
if the law was upheld by the JState court an interested private party
might carry the case to the Supreme Court on grounds of repugnance
to the Constitution, treaties or laws of the United States, and there
secure a reexamination and perhaps a reversal of the case. This
is what occurred in the Lochner case noted above, and various others.
Since 1914, however (act of Dec. 23, 38 Stat. 790), it has been com
petent for the Supreme Court to require a certification of a decision
against the validity of a State statute, claimed to be repugnant to
People

Western Union Telegraph Co. (1921), 70 Colo. 90, 198 Pac. 146.

CONSTITUTIONAL RESTRICTIONS.

the Constitution, treaties or laws of the United States, for review
and determination (Judicial Code, sec. 237, amended as above, and
also by act of Sept. 6, 1916, 39 Stat. 726).
This provision of law makes it possible for the State to secure a
review when an act of its legislature is declared by its own courts to
contravene any Federal provision, and strengthens the hands of the
Court in regard to establishing a uniform rule of interpretation in
the various States so far as Federal principles are involved. There
is a difference in the procedure where the law has been upheld by the
State court of last resort, and where it has been declared invalid. In
the first case review may be had in the Supreme Court upon writ of
error, while in the second the judgment can be reviewed only upon
a writ of certiorari. 44The difference between the two modes of se
curing a review, as contemplated by the statute, lies in the fact that
a writ of error is granted as of right, while a writ of certiorari is
granted or refused in the exercise of a sound discretion.” 20 This dis
tinction is not important for the present study, but suggests a sur
viving disinclination to undertake to reestablish a State law dis
credited by its own courts which is not in evidence when the contrary
procedure is involved. State courts have not always agreed with
each other on points of close similarity or even identity (see the
Clausen case, p. 3), while it has occurred at least once that a prin
ciple laid down by the Supreme Court has been rejected by a State
court {In re Morgan, p. 55), though this is a most exceptional hap
pening. No case has as yet come before the Supreme Court under
the terms of this amendment, or at least none that involves the con
stitutionality of a labor statute.
An incidental question that arises in connection with a declaration
of unconstitutionality, where the unconstitutional law purports to
amend or supersede an existing valid law, may be noted briefly. The
question of amendment appears, for instance, in connection with the
act of Congress amending the Judicial Code with regard to com
pensation legislation, the amendment being declared unconstitutional
in the case Knickerbocker Ice Co. v. Stewart (p. 72); while the super
seding of existing laws is illustrated in the act of the Arizona Legis
lature of 1921, undertaking to enact a compensation law found un
constitutional in the case, Industrial Commission v. Crisman (p. 70) ;
or in the case of the Arkansas Legislature enacting laws regulating
the payment of wages in scrip (Union Sawmill Co. v. Felsenthal,
p. 52). In these cases the rule is that the void enactment was void
ab initio, so that the original act is unaffected in any way. 44An un
constitutional act is not a law; it confers no rights; it imposes no
duties; it offers no protection; it creates no office; it is, in legal con
templation, as inoperative as though it had never been passed.” 21
This decision related to an independent statute, but the principle
is fundamental, and was applied by the Court of Appeals of New
York in a case in which a valid statute had been amended, and the
amendment found void.22 It was said that 44a section in a later act
amending a section in an earlier act, 4so as to read as follows,’ if
followed by a blank space only, would effect no change in the law.
20Philadelphia & Reading C. & I. Co. v . Gilbert (1917), 245 U. S. 162, 38 Sup. Ct. 58.
a Norton v . Shelby County (1886), 118 U. S. 425, 442.
22 People ex rel. Farrington v . Mensching (1907), 187 N. Y. 8, 79 N. E. 884.

1 0

LABOR LAWS DECLARED UNCONSTITUTIONAL.

That is the legal effect of the situation before us, So far as the ques
tion now involved is concerned. * * * The new section never
breathed. Instead of blotting out the earlier, it was blotted out
itself.”
The principle in question is the same as that which must be con
sidered in deciding whether the invalidity of a single section in an
act destroys an act in its entirety. “ If different sections of a stat
ute are independent of each other, that which is unconstitutional
may be disregarded, and the valid sections may stand and be enforced.
But if an obnoxious section is of such import that the other sections
without it would cause results not contemplated or desired by the
legislature, then the entire statute must be held inoperative.” 23 The
fact that an amending provision will generally be enacted by a sepa
rate legislature from that which enacted the principal law is con
clusive of the fact that the original enactment was intended to be as
it was, the amendatory provision being no inducement to the ap
proval of the original act, so that it can not be said that the original
act would not have been passed except for the amendment.24
The case would be different if the original act had been repealed
in an independent statute, and the unconstitutional superseding act
had been separately enacted; for while it might have been within the
contemplation of the legislature to provide a law, of the same general
character, no charge of unconstitutionality could lie against the in
dependent repealer. A case approximately illustrating this situation
is one, not involving unconstitutionality but involving the evident
intent of the legislature, which failed to materialize by reason of
the veto power of the governor. The instance was one in which the
Legislature of Texas in 1921 repealed the minimum wage law of the
State, enacted in 1919, and then in a separate measure enacted a bill
for another law. This was vetoed by the governor, thus leaving the
State without legislation on the subject, while if the repeal had been
embodied in the substitute law the veto of the governor would have
left the original act unaffected.
LAWS, ETC., DECLARED UNCONSTITUTIONAL.

The present compilation brings together about 300 separate stat
utes, bills, and ordinances whose constitutionality has been success
fully challenged in the courts. The fault may have been found only
with a severable provision, in which case the main provisions were
unaffected, or it may involve the entire force and effect of the enact
ment. The statutes considered are classified under headings indica
tive of the principal subject matter. The method of presentation is
to state briefly the substance of the attempted legislation, following
this with a statement of the grounds on which it was disapproved.
There is also some introduction of contrasting opinions announced
by the courts, or of apparent modifications or departures from posi
tions taken earlier, indicating that some of the positions taken are
no longer tenable, or that courts in different jurisdictions have dif
fered in their judgment on the point of constitutionality.
*3 Connolly v . Union Sewer ?ipe Co. (1902), 184 U. S. 540, 22 Sup. Ct. 431.
24 Ex parte Davis (1884), 21 Fed. 396.

CONTRACT OF EMPLOYMENT.

1 1

CONTRACT OF EMPLOYMENT.
R E P A Y M E N T OF EM PLOYERS’ A DVAN CES.

Practically restricted to a single area is a group of laws under
taking to enforce the fulfillment of a contract of employment follow
ing the receipt of advances either of money or supplies. Failure
willfully and without just cause to perform the services agreed upon,
or contracting with a fraudulent purpose, subjects the offender to
punishment as for a misdemeanor, involving penalties of fine or im
prisonment. By the payment of this fine the payor shall be enabled
to secure the services of the convicted party to “ work out ” the sum
paid as a penalty. Such a law, restricted to farm labor, was em
bodied in section 357 of the Criminal Code of South Carolina
(amended by an act, p. 428, Acts of 1904). Both the Federal court
and the supreme court of the State declared this law unconstitutional,
as an attempt to secure compulsory service in payment of debt; as
violating the equality clause of the fourteenth amendment, since it
applied only to agricultural labor; and, finally, as creating a sys
tem of involuntary servitude, in violation of the provisions of the
thirteenth amendment.25
The Legislature of North Carolina in 1905 enacted laws ap
plicable to agricultural employments, undertaking to regulate the.
conduct of both landlords and tenants or “ croppers.” Acceptance
of advances followed by a willful failure to complete the contract,
or promising to furnish advances and willfully failing to carry out
the agreement, were alike punishable by fine or imprisonment.
(Revisal of 1905, sec. 3366, codifying several acts.) Neither the
provision as to willfully abandoning the contract “ without good
cause,” nor the inclusion of the landlord as a possible offender under
the law, could save it from condemnation by the supreme court
of the State as violating the provision of the constitution of the
State which forbids imprisonment for debt in the absence of fraud.26
A law of this type was enacted by the Legislature of Louisiana
(p. 54, Acts of 1906), for the violation of which conviction was
sought in a local court, but it was there held unconstitutional. The
supreme court of the State took the same position, ruling that the
statute conflicted with the act of Congress forbidding peonage,
which was itself an expression of the purpose of the thirteenth
amendment prohibiting involuntary servitude except as a punish
ment for crime.27 An interesting point in connection with this de
cision is the overruling of “ whatever may have been said in con
flict with our present ruling” in a case before the same court in
1906,28 some 12 years prior to the instant decision. This court had
upheld as constitutional an act (No. 50, Acts of 1892) which the
trial court had declared unconstitutional as in violation of the
peonage laws, but which on appeal was sustained as a justifiable
provision with regard to one who had obtained money in bad faith,
and imposed on another by promising to render service which he
failed to perform—a finding widely departed from in the Oliva
case.
28 Ex parte Drayton (1907), 153 Fed. 9S 6; ex parte Hollman (190S), 79 S. C. 9, 60
S'. E. 19.
26 State v . Williams (1909), 150 N. C. 802, 63 S. E. 949.
27 State v . Oliva (19181, 144 La. 51, 80 So. 195.
28 State v . Murray (1906), 116 La. 655, 40 So. 930.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

The Supreme Court of Alabama maintained the constitutionality
of quite similar legislation, which provided that “ any person who,
with intent to injure or defraud his employer, enters into a contract
in writing for the performance of any act or service, and thereby
obtains money or other, personal property from such employer
and with like intent without just cause, without refunding such
money, or paying for such property, refuses or fails to perform
such act or service,” shall be punished by fine and double damages,
one-half to the county and one-half to the person injured (sec. 4720,
Code of 1896 as amended in 1903 and 1907, becoming sec. 6845, Code
of 1907). A laborer convicted in the trial court for procuring ad
vances in violation of this statute was sentenced to imprisonment
at hard labor in lieu of fine and on account of costs. The supreme
court upheld this statute as constitutional, distinguishing it from
Act No. 483, which had been condemned by both the State and
Federal courts (p. 13), that statute not requiring intent to injure
or defraud, while the act under present consideration’ makes the
intent essential. The court held that this criminal feature of in
tent justified the punishment provided.29
Prior to the amendment of 1903 the statute did not contain the
provision as to the rule of evidence which this amendment incorpo
rated, i. e., that the refusal or failure without just cause on the
part of the person who had made the contract to perform the
service or repay the money shall be prima facie evidence of intent
to injure. This amendment was adopted to cure the situation
pointed out in an earlier case30 in which the difficulty of proving
intent was set forth, and the amendment had been upheld in sub
sequent decisions,81 but prior to the present hearing. The plaintiff
challenged the conclusions reached in this case, but the court de
clared that the reexamination which was made of the points involved
“ has not only not weakened our faith in the correctness of the
conclusions there reached, but confirmed it.” 32 However, when the
case was brought to the Supreme Court of the United States, the
law was declared unconstitutional as violating both the thirteenth
amendment and the peonage laws, enacted “ to secure its complete
enforcement.” 33 As to the amendment of 1903, it was said that
“ the asserted difficulty of proving the intent to injure or defraud
is thus made the occasion for dispensing with such proof, so far as
the prima facie case is concerned. And the mere breach of a con
tract for personal service, coupled with the mere failure to pay a
debt which was to be liquidated in the course of such service, is made
sufficient to warrant a conviction.” Not only the terms of the act,
but also its construction and application, as shown in the instant
case, led to the conclusion that “ although the statute in terms is to
punish fraud, still its natural and inevitable effect is to expose to
conviction for crime those who simply fail or refuse to perform
contracts for personal service in liquidation of a debt.” The viola
tion of a contract of this nature “ exposes the debtor to liability for
loss due to the breach, but not to enforced labor ” The act and*40
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CONTRACT OF EMPLOYMENT.

amendment were an apparent attempt to do indirectly what could
not be done directly, and were held invalid.
Falling under the same condemnation as in the foregoing case, a
statute of Florida similar to others noted above with regard to the
payment of advances was declared unconstitutional by the supreme
court of that State.34 The statute in question (ch. 6528, Acts of
1913) was said by the court to provide punishment “ not for obtain
ing money or other thing of value with intent to injure and de
fraud, but for failure or refusal, without just cause, to perform
labor or service under the contract, or for failure or refusal to pay
for the money or other thing of value so received upon demand.”
Making the failure to perform labor or service under the contract
cause for imprisonment was said to violate the same principles as
those involved in the case Bailey v. Alabama, this decision by the
Supreme Court being accepted as authoritative on this point.
Laws so closely approximating the foregoihg as to call for careful
examination to determine the differences still exist in most of the
States furnishing the cases noted; as an act of the Legislature of
Alabama of 1911 (p. 93) which penalizes the fraudulent obtaining
of advances, but omits the rule as to evidence considered in the
Bailey case;35 and one of Georgia (secs. 715, 716, Penal Code),
which makes failure to pay only “ presumptive evidence ” of intent to
defraud.” 36
B R E AC H .

A statute of the State of South Carolina (General Statutes of
1882, sec. 2084) prescribed penalties for the punishment of em
ployers and employees who *broke their contracts. The penalty
against employers was limited in amount, while that against em
ployees was not, and this difference in treatment was held by the
supreme court of the State to be an unjust and unlawful discrimina
tion between the two parties, invalidating the act.37
The Legislature of Alabama enacted a law (No. 483, Acts of 19001901) which forbade any person who had made a contract in writ
ing, either as an employee or as a lessee of lands, to abandon his
contract or lease or to abandon the leased premises, and make a
second contract of any form of a similar nature with a different
employer without the consent of the original employer and without
sufficient excuse, which was to be adjudged by the court. The State
supreme court held that the act contravened the guaranties of both
the Federal and State constitutions as to the rights of life, liberty,
and property, placing, as it did, the right of contract of one in
dividual under the power of another. “ Because of the restrictions
it purports to place on the right to make contracts for employment
and concerning Jhe use and cultivation of land, this act is wholly
invalid.” 38 In discussing the same law, a Federal judge condemned
these provisions, saying that “ the only constitutional method of
enforcing a contract for personal service is to get judgment and
execution and have compensation for the broken contract by seizure
a* Goode v . Nelson (1917), 73 Fla. 29, 74 So. 17.
35Thomas v . State (1915), 13 Ala. App. 431, 69 So. 908.
36 Paschal v . State (1915), 16. Ga. App. 370, 85 S. E. 358; a l s o Johns v . Patterson
(1919), 138 Ark. 420, 211 S. W. 387; Shaw v . Fisher (1920), 113 S. C. 287, 102 S. E. 325.
** State v . Williams (1890), 32 S. C. 123, 10 S. E. 876.
a* Toney v . State (1904), 141 Ala. 120, 37 So. 332.
11934°— 22------ 2

LABOR LAWS DECLARED UNCONSTITUTIONAL,

and sale of the defendant’s property.” 39 With reference to the pro
vision requiring the employee to secure his former employer’s con
sent, the judge in the latter case laid down the rule that no man can
lawfully be compelled to disclose differences with former employers
or breaches of contract with others as a condition to the making
of a new contract. Such a provision would be, in effect, a com
pulsory method of collecting debts or securing the performance of
a contract and would amount to making an employee blacklist him
self.
The Georgia Legislature (act, p. 63, Acts of 1901, as amended by
Act No. 307, p. 91, Acts of 1903) provided penalties for any person
who should, during the life of the contract, employ or rent lands to
any employee or tenant who was under written contract or under
parol contract duly witnessed and partly performed, or who should
“ disturb in any way ” the relation of employer and employee or of
landlord and tenant without first obtaining the written consent of
the original employer or landlord. The object of this act is evidently
the same as that of the act of the Alabama Legislature noted above,
i. e., to secure the stability of contracts of employment and tenancy,
but the mode of approach differs, since in the Georgia law it is in
form the interference by third parties that *is prohibited, and not the
free action of the employee or tenant. This act was held by the
supreme court of the State to be constitutional in the main.40 Since
however, the constitution of the State requires that no law shall con
tain more than one subject-matter, or matter that is not set forth in
the title, it was held that the clause prohibiting the disturbance “ in
any way ” of the relations mentioned must be stricken out, since it
was not covered by the title of the act^
More vital objections were found by the Supreme Court of Missis
sippi to lie against a statute of that State (sec. 1187, Code of 1906)
which undertook to require a laborer or renter who had contracted
in writing for a term not exceeding one year to give notice to any
subsequent employer or landlord in case he abandoned his-original
contract before its completion and without the consent of his former
employer. Failure to give such notice was declared to be a mis
demeanor, punishable by a fine of not more than $50. The trial
court regarded this statute as unconstitutional because of its arbi
trary interference with the right of making and terminating con
tracts. The supreme court of the State took a similar view, holding
that the effect of the law would be to force citizens into involuntary
servitude.41
Approaching the subject from a slightly different angle, but
seeking to accomplish the same end, sections 3712 and 3713 of the
Civil Code of 1910 of the State of Georgia required the written
consent of the employer, landlord, or landowner before an em
ployee, tenant, or cropper under contract could enter other service:
Damages of double wages or double rental value, the latter fixed at
1,000 pounds of middling lint cotton to the plow, were determined
by the statute as an absolute standard of damages for penalization.
This remedy was optional with the employer, the alternative being
a prosecution for misdemeanor, subjecting to punishment by im* •

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15
prisonment. The supreme court of the State declared the statute
unconstitutional as depriving of liberty and property without due
process of law because delegating to a private individual the power,
at his option, to classify an offense as a private wrong for which
damages might be recovered or a crime punishable by imprisonment.
The act was also denounced as laying an unreasonable restriction
on the right of a workman to contract or of an employer to hire.42
Not originating strictly as a labor law, but by direct sequence de
veloping into the exact situation indicated in the Bailey case, was a
provision of the Alabama Code of 1907 (sec. 6846) which provided
that a person convicted of a misdemeanor might contract in open
court with a person becoming his surety, engaging to work for him
for a sufficient length of time to liquidate the amount of the fine
for which the party became surety. In a case arising under this
statute43 a man convicted of petit larceny contracted to work for 9
months and 24 days to offset a fine of $15 and costs of $43.75. After
working a month the person convicted declined to further serve,
whereupon he was arrested on the charge of violating his contract
of service, a nominal fine and additional costs assessed, and a new
contract made running for 14 months and 15 days. The United
States District Court for the Southern District of Alabama took the
view that this statute was constitutional (213 Fed. 352), but the
Supreme Court held it to be a compulsion to render service for the
payment of a debt incurred by the agreement to reimburse the party
becoming surety. The terms of the contract were not prescribed by
the statute, but were a matter of agreement between the parties, and
the labor was to be performed under the direction of the surety, and
at its completion, if the agreement was kept, the discharge was accom
plished without further action by the State, but if the contract was
not performed there was the coercion and threat of another possible
arrest and prosecution for the violation of a labor contract. 44The
validity of this system of State law must be judged by its operation
and effect upon rights secured by the Constitution of the United
States and offenses punished by the Federal statutes.” The possibility
of cumulative arrests and sentences, demonstrated by the facts
therein, led to the opinion that the system established by the statute
violates the provisions of the thirteenth amendment and the peonage
laws, so that it must be regarded as unconstitutional.
Maritime contracts have differed in many respects from the ordiary labor contract, but the tendency of modern legislation is more
closely to assimilate the status of seamen with that of other wage
workers. As representative of the earlier type of legislation sec
tions 2004 and 2005 of the Virginia Code provided the penalty of
imprisonment for seamen convicted of desertion. Persons sentenced
under these provisions sought release in a Federal court by a writ of
habeas corpus, and the statutes were found inapplicable on account
of their repugnancy to provisions of the Federal laws governing such
employment (seamen’s act Mar. 4, 1915).44 The decision did not go
so far as to invalidate the law absolutely, though the statute does
44if not expressly, certainly by strong implication prohibit the punishment~by imprisonment for deserting seamen.” In any case the Vir
ginia law would not apply to foreign seamen.
CON TRACT OF EMPLOYMENT.

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1 6

ST A T E M E N T OF CAUSE OF DISCH A R G E.

In the State of Georgia an act of October 21, 1891, provided that
railroad, telegraph, express, or electric street-railway companies
should, on written request’, furnish to any employee, on his discharge
or removal from employment, a specific statement in writing of the
reason or cause therefor; and if the discharge was made on account
of complaint or information, the statement should disclose the nature
of the same, the name of the person making it, and the time when the
complaint was made. Failure to comply involved a liability of
$5,000, to be recovered in an action for damages. On suit to recover
damages for failure to comply with the request of a discharged em
ployee for a statement of the reasons, it was held that a statute of this
nature served no public interest and was violative of private rights,
since the guaranty of the liberty of speech and writing requires as its
correlative the liberty of silence; it was said by the court that “ state
ments or communications, oral or written, wanted for private infor
mation, can not be coerced by mere legislative mandate at the will
of one of the parties and against the will of the other.” The act was
therefore declared unconstitutional.45
A similar view was taken of a statute of Kansas (G. S. 1901, sec.
2422), which directed “ any employer of labor” within the State to
furnish to a discharged employee, on his request? a statement in writ
ing of the true reason for his discharge. Section 2421 contained a
prohibition against blacklisting. A case arose under section 2422 in
which a railroad employee sued his former employer for refusal to
statement than that contained in a letter declaring
S’veat heanywasother
discharged “ for cause.” It was also charged that there
was a conspiracy between this and other companies to prevent em
ployees from procuring employment without the consent uf former
employers. The evidence showed that employment had been refused
after the letter furnished had been exhibited at the request of pros
pective employers; but since there was no means of knowing that
employment could have been secured if the true reason for discharge
had been fully set forth, the supreme court of the State ruled that
there was no proof of damage resulting from a failure to state the
actual cause of discharge, and that a law requiring such a statement
could not be enforced. The Wallace case, above, was not mentioned,
but the same argument was used, and the law declared unconstitu
tional as^an interference with personal liberty in a matter in which
the public has no interest.46 Opposed to the views of these courts
is that of a Texas court of civil appeals in upholding a statute of
that State which required the reason for discharge to be furnished
on request of the employee. The Wallace and the Brown cases were
mentioned and the views therein expressed specifically rejected, the
statute in question being held a proper one to prevent misrepresenta
tion and blacklisting.47
However, when this case came to the Supreme Court of Texas the
statute was held to establish an unwarranted discrimination between
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CONTRACT OF EMPLOYMENT.

employers and employees, in that while the employee might lawfully
quit without cause or notice, the employing corporation was denied
the same right. It is well established that contracts at will may be
terminated by either party “ for any reason or no reason,” while this
statute would require that there be a “ true cause ” and further that
the employer furnish the employee with “ a true statement ” of the
same. The supreme court, unlike the court of appeals, cited with
approval the Wallace and Brown cases, saying that “ the liberty to
write or speak includes the corresponding right to be silent, and also
the liberty to decline to write.”48
The Legislature of Massachusetts had before it a proposition to
enact a law providing that railroad employees against whom charges
are brought may not be disciplined or discharged until or unless con
fronted by the person making the charge. According to the custom
sometimes followed in that State, the question of the constitutionality
of such a measure was submitted in advance to the supreme court
justices, and was by them declared to be violative of the provisions of
the Constitution.49 The act would apply to railroads only and to no
other kind of common carrier or employer. A corporation as such has
no means of obtaining information except through individuals, and
to limit the right of an employer to discharge an employee on ac
count of information received as to his efficiency, honesty, etc., with
out a compulsory showing, was regarded as an undue, interference
with* the right of free contract and the management of one’s own
affairs.
Over against the foregoing list of decisions may be set cases sup
porting laws of like intent in Missouri (sec. 3020* B. S., 1909), and
Oklahoma (sec. 3769, R. L., 1910).50 The State and United States
courts of last resort here took ground opposing the earlier decisions
on practically every point named above—public interest, freedom of
contract, free speech and silence, etc. The latter were said not to be
interfered with, and the statutes were upheld as a proper exercise of
the power of the State to regulate the conduct of corporations doing
business within the State, to which the laws are restricted.
BLA C K L IST IN G .

A statute of Indiana (A. S., 1901, sec. 7077) addressed to the sub
ject of blacklisting and the protection of discharged employees, con
tained in its body but not in its title provisions relative to employees
who voluntarily left service. The court held that the protection of
discharged employees was a proper subject for an act of the legisla
ture, with which the prevention of blacklisting was properly con
nected; but that the provision as to employees voluntarily leaving
service did not come within the scope of the act as expressed by the
title nor was it properly connected therewith. As it was in conflict
with a provision of the State constitution similar to that noted above
in the Georgia case, Pearson v. Bass, requiring each statute to relate
to a single subject, which must be expressed in the title of the statute,
this portion of the statute was held to be void.51
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LABOR LAWS DECLARED UNCONSTITUTIONAL.
TIPS.

An act of the California Legislature (ch. 172, Acts of 1917) for
bade employers to take over money given employees as tips by any
contract requiring the surrender of such sums. From a conviction
for a violation of this statute an appeal was taken to the supreme
court of the State, and the statute was held unconstitutional as an
interference with the freedom of contract and the due process provi
sion of the constitutions of the State and the United States. “Even
if we consider that the gratuity is essentially a personal earning of
the employee, nevertheless it must be true that one may enter into
a contract involving the expenditure of one’s own earnings.”52
Going beyond the above was a law of Iowa which prohibited em
ployees in any hotel, restaurant, barber shop or other public place
from accepting or soliciting gratuities, tips, or other thing of value.
An employee in a barber shop was arrested for receiving a tip. He
attacked the constitutionality of the statute on several grounds, but
chiefly because it applied to employees only, leaving an employer
working side by side with his employee free to receive gifts of the
nature forbidden to the employee. This discrimination was held not
to afford “ equal protection of the law ” as required by the fourteenth
amendment, so that the law was declared unconstitutional.53
EXAMINATION, REGISTRATION, ETC., OF WORKMEN. v

Restrictions on employment have resulted in many States from
enactments that prescribe a form o'f examination, to be followed by
the registration or licensing of such persons as show themselves
qualified for the employment in view. These provisions may affect
independent workmen in the matter of the pursuit of their trades,
or they may relate to applicants for employment for wages.
BARBERS.

In the first class are barbers, the examination and registration
o"f whom are regulated in many States, the law being in general
upheld as an appropriate exercise of the police power in behalf of
the health and general welfare of the community. The end in view
will not, however, justify the incorporation of extraneous restrictive
features, as was done in the Michigan law, Act No. 212, Acts of 1899,
which contained a provision excluding aliens from the right to take
the examination which was a prerequisite to registration under the
law. This provision was held to be in violation of the fourteenth
amendment, since it denied to persons within the jurisdiction of a
State of the Union the equal protection of its laws.54 A quite simi
lar defect was found in a law of the State of Washington, Acts of
1901, chaptel 172, which contained a provision requiring the appli
cant to show that he had studied the trade for two years as an
apprentice under a qualified and practicing barber, or had served as
a barber in that State or in other States for a like period. This pro
vision was held to be unreasonable and arbitrary, since the only
matter in which the public was interested was the competence of
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EXAMINATION, REGISTRATION, ETC., OF WORKMEN.

the workman and not the method by which such competence was
obtained, whether by apprenticeship, at a barber school, or by his
own efforts.55 In neither of the above cases, however, was the un
constitutional provision regarded as invalidating the remainder of
the statute..
An earlier decision had sustained the Washington statute in gen
eral as a health law.56 However, when an applicant for a license
who had been rejected by the board appeared before a Federal court
in an attempt to secure a declaration of the invalidity of the law, it
was decided that because of the methods of administration adopted
the act was in violation of the Constitution. The tests prescribed
were said to have no relation to the subject of health and were in
themselves not a proper exercise of the police power, but were appar
ently intended to leave it in the power of the board arbitrarily and
capriciously to refuse a license. The act was therefore declared
void.57
The Missouri statute on the subject (ch. 13 of the Revised Stats,
of. 1909) had been upheld in its general provisions as to supervision
and the requirement of a license for barbers on the ground that it
was a health regulation.58 Among the provisions of the law were
regulations as to “ barber colleges.” One provision forbade the
making of any charge for the services of apprentices or pupils for
the ordinary work of barbers, while another restricted the kind of
sign that could be displayed. These provisions were said by the
court to be obnoxious to the Constitution, and not related to the
matter of safeguarding public health.59 ' These items of the law were,
of course, not essential, so that though they were stricken out, its
general constitutionality was not affected.
In a court of criminal appeals of Texas, on the other hand, a law
requiring practicing barbers to pay a registration fee of $2, or an
examination fee of like amount if not engaged in the occupation at
the time the law was enacted (ch. 141, Acts of 1907), was declared
unconstitutional as in violation of a clause of the State constitution
declaring that no occupation tax should ever be levied on the prosecu
tion of mechanical and agricultural pursuits.60 The court held that
the work of barbering was mechanical and therefore not subject to
taxation, and that naming the charge a license fee could not save it
from the condemnation of the Constitution. The law exempted from
its application students working their way through the State uni
versity or other schools of the State by working as barbers, and also
persons acting as barbers in eleemosynary institutions of the State
and in towns of less than 1,000 population, and these exemptions
were held by the court as being discriminatory and unconstitutional,
so that the whole law was void for these reasons as well.
The constitution of Louisiana likewise forbids the levying of taxes
on mechanical, etc., pursuits and occupations. Holding that the
work of a barber is mechanical, an act of the legislature of 1890
(No. 190) providing for a license tax was held unconstitutional.61
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M E C H A N IC A L

EM PLOYM ENTS.

The constitutional objection that overthrew the barbers’ statute
applied to a law of Louisiana (p."143, Acts of 1880) which authorized
cities to tax persons carrying on the business or a mechanic who
employ assistants in their undertakings was declared vbid, as was
also, of necessity, an ordinance of the city of New Orleans, enacted
in pursuance of the provisions of the law.62 The same reason invali
dated an ordinance of the city of New Orleans, passed in accordance
with an act of the legislature of 1908 (No. 15), which provided for
the examination and licensing of stationary engineers, charging also
a license tax.63
PED DLER S.

The licensing of peddlers, subjecting them to local taxation, is
quite generally provided for, and the exception in favor of farmers
and mechanics selling articles of their own production or manufac
ture is frequently incorporated. A Michigan statute, however (Acts
of 1897, No. 248), made an exception of this sort applicable only to
residents of the State of Michigan, which was held to violate the
prohibition of section 2 of Article IV of the Federal Constitution,
granting to the citizens of each State all the privileges and immu
nities of citizens in the several States.64
HORSESH OERS.

' An occupation which has been made the subject of legislation in
several States, but which does not seem to fall properly within the
reasons supporting laws of this class, is that of horseshoer. In the
States of New York (Acts of 1897, ch. 415, sec. 180), Illinois (act
of June 11, 1897), and Washington (Acts of 1901, ch. 67) laws
of this sort were condemned as being unwarranted and unconstitu
tional interferences with the liberty of the citizen to choose and fol
low his calling or employment.65* The laws in question were held
to have no proper reference to the public health or comfort or to the
safety or welfare of society. Since they were not revenue laws,
they could be justified only on the showing of the necessity of regu
lation, in the absence of which the general right of every person to
pursue any’ calling, and to do so in his own way, so long as he does
not encroach upon the rights of others, can not be taken away by
legislative enactment. The necessity for regulation was held not to
appear in the cases cited, and the laws were declared unconstitutional
both for the reason indicated above and as depriving persons of lib
erty and property without due process of law, in violation of the
provisions of both Federal and State constitutions.
PLUM BERS.

The occupation of plumbing is generally held to be appropriately
the subject of laws requiring examination and registration on proof
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EXAMINATION, REGISTRATION, ETC., OE WORKMEN.

of competency,66 but the statute of Washington (Acts of 1905, ch.
66) relative to this subject was held to be an unwarranted inter
ference with the freedom of the citizen to engage in employment,
not grounded on relations to public health, and subject to condem
nation for the same reasons as set forth above in connection with
the consideration of the laws relating to horseshoeing.67 In a few
other States the law relating to the registration of plumbers has
been found to be unconstitutional, but only because of certain
discriminatory or unequal provisions contained in them. Thus in
Minnesota the act of 1901, chapter 356, required journeymen plumb
ers in cities having a population of 10,000 or more, and having a
system of sewers or waterworks, to procure certificates of com
petency. This act was condemned on two grounds; first, that it
adopted as a basis of classification an arbitrary numerical standard
as well as the one relative to systems of sewerage or water supply;
and second, that it required journeymen to prove their competency
while no such test was made as to the qualification of master
plumbers.68 A Wisconsin statute (Acts of 1897, ch. 338) was
said by the court to be addressed to a proper subject of legislation,
but to be unconstitutional because it contained the provision that
“ In the case of a firm or corporation, the examination or licensing
of any one member of the firm or the manager of a corporation shall
satisfy the requirements of the act.” This was said to be an unwar
rantable discrimination in favor of firms and corporations as against
plumbers engaging in business alone.69 The same defect was pointed
out by the Supreme Court of Ohio in discussing a law (Acts of
1896, p. 263) which contained a similar provision;70 so also of an
ordinance of the city of Atlanta of like, tenor,71 and of a statute of
Texas (Revised Stats. 1911, arts. 986-998).72 The Court of Appeals
of New York, on the other hand, in passing on a plumbers’ license
law (Acts of 1896, ch. 803), condemned the provisions of that act
which required every member of a firm to be registered after exam
ination, ,inasmuch as such a provision interfered with the right of
individuals to form partnerships for the conduct of a lawful busi
ness as master plumbers, the objection being that a man with capital
but without experience as a plumber was by this provision debarred
from the opportunity of investing his money in the plumbing busi
ness, even as a silent partner.73
An ordinance of the city of Houston, Tex., undertook to require
the giving of bonds and the securing of a license from the city engi
neer before plumbers who held State licenses could engage in business
in the city. The bonds were to secure the faithful performance and
observance of the city ordinances and to indemnify the city and all
persons against accidents and damages caused by negligence or by any
unskillful or unfaithful work done. The system of licensing estab
lished by the State law was held to be the controlling regulation, and
attempts of the city to add to the requirements prescribed were held
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LABOR LAWS DECLARED UNCONSTITUTIONAL.

to be in excess of its powers, and the inconsistency rendered the ordi
nance invalid.74
CEM ENT CONTRACTORS.

A similar motive to the above underlay the enactment of an ordi
nance by the city of Sheridan, Wyo., which undertook to license
cement contractors, charging them a fee therefor and requiring a
bond conditioned on the work standing for five years after its com
pletion. The case came to the supreme court of the State on the ques
tion of constitutionality. The holding there was against its validity
as not being a proper subject of police regulation affecting either
health, morals, safety, or the general welfare of the public, and be
cause discriminatory as restricted to cement workers while con
tractors using asphalt, etc., were not affected. Other reasons given
were that the city had no power to regulate this vocation, and that
the regulations proposed were unreasonable.75
E L ECTR ICIAN S.

Of like nature with the above laws is one enacted by the Legis
lature of Louisiana (Act No. 178, Acts of 1908), requiring master
electricians to pass an examination and securer license before engag
ing in electrical work, the law being so worded as to apply to the city
of New Orleans only. The lighting companies, the electric railway
companies, and the department of police and public buildings of the
city were exempted from the provisions of the statute “ in so far as
the maintenance and installation of their equipment pole-line services
and meters are concerned.” On account of the exemptions contained
in the law it was held to be discriminatory without just reasons for
the distinctions made, and for this reason void, the invalid portions
so affecting the whole statute that it must fall in its entirety.76
M IN E FO R E M E N .

In the second group of workmen for whom examination is pre
scribed, i. e., those who must procure a certificate before they are
eligible to employment as hired workmen, are to be found persons on
whose skill and competence the safety of their fellow workmen, or of
the public, or both,, are dependent. The reasons indicated by these
relationships are held to justify the enactment of laws of this particu
lar class. However, an enactment of the Legislature of Pennsylvania
(Acts of 1891, p. TT6) was held by the supreme court of the State to
contain an unconstitutional provision in that, while compelling the
appointment of a certified mine foreman, it imposed on the employer
liability for the negligence of such employee. The court held that in
so doing an improper burden was laid upon the employer, since it
held him responsible for the acts of a person in whose appointment
he was not permitted by the statutes to act freely, and who was,
as this court maintained, the agent of the State and not of his em
ployer. The act was declared to be void in another respect, because
the foreman was by it made the employer’s representative, while,
according to the common law as administered in Pennsylvania, he*7
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EXAMINATION, REGISTRATION, ETC., OF WORKMEN.

was a fellow servant of the miners who worked in the mine with him.
The statute was, therefore, declared to be an invalid and ineffectual
attempt to change settled law in regard to this matter, though the
provision requiring the employment of licensed foremen stands.77
It may be added in this immediate connection that neither of the
above reasons has been generally held to invalidate such laws, since
the mine foreman, although licensed by the State, is subject to selec
tion, employment, and dismissal at the option of his employer, the
only restriction being that the selection shall be made from a group
of men whose competency has been in some measure tested according
to a standard that is thought worthy of general approval; and a law
of Tennessee (sec. 19, ch. 169, Acts of 1915), declaring the foreman
thus selected “ to be the agent or representative of the operator or
owner of the mine,” was declared to be within the power of the
legislature to enact.78 As to the second point, it is commonly
accepted at the present time that the State has the power to modify
or to abrogate the law as to fellow service.79
Another law of Pennsylvania (Acts of 1897, p. 287) requires
miners in anthracite mines to have certificates of competency, to be
issued only after two years’ experience as a miner or mine laborer
in the mines of the State. A superior court declared this provision
limiting the experience to work in mines in the State to be in con
travention of the rule as to equal right of citizens, as laid down in
Article IY, section 2, of the Constitution.80 On appeal, however, the
supreme court of the State sustained the law in its entirety, on the
ground, as it appears, that the nature of the experience required was
specific and peculiar.81
ST A T IO N A R Y E N G IN E E R S.

The statute of the State of Ohio requiring engineers of stationary
engines of more than 35 horsepower to be examined and procure a
license (Acts of 1900, p. 33), if the applicant should be found trust
worthy and competent, was declared unconstitutional as interfer
ing with the rights of citizens and affecting their equality, as well as
conferring autocratic authority on the examiner, for whom the legis
lature had fixed no standard.82 Subsequent acts of the Legislature
of Ohio have cured the last-named defect, the present statute being
of a form and effect generally regarded as constitutional.83 The con
trolling reasons in the cases cited are obviously different from that
which was decisive in the Louisiana case noted under the heading
“Mechanical employments” (p. 20).
R A IL R O A D EM PLOYEES.

Engineers on locomotives were required by a law of the State of
Alabama (Acts of 1887, p. 87) to be efamined for color blindness,
the cost of the examination devolving on the railroad company.
The provision requiring the railroad company to pay The fees was
held by the supreme court of the State to impose an unwarranted
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labor law s declared u n c o n st it u t io n a l .

burden upon the company and to be unconstitutional.84 A similar
law was, however, upheld in its entirety by the Supreme Court of
the United States, the court saying that to require “ railroad com
panies to pay the fees allowed for the examination of parties who are
to serve on their railroads is not depriving them of property without
due process of law. It is merely imposing upon them the expenses
necessary to ascertain whether the employees possessed the physical
qualifications required by law.” 85
Different reasons were adduced against a statute of Ohio (act of
January 31, 1893), which prescribed the terms of service and experi
ence preliminary to the employment of certain classes of railroad
employees. Employment might be given to men who had had ex
perience covering a period of two years in the past six years, and
those might be retained in their present positions who were employed
at the time of the passage of the law. The court ruled that by these
terms two favored classes were arbitrarily created, the law prescrib
ing no standard or test of efficiency, merely declaring who may labor
and who may not, without providing for the public safety by any
valid rule.86
Similar legislation was attempted by a law of Texas (ch. 46, Acts
of 1909), which required a passenger conductor to have had two
years’ prior service as brakeman or conductor on a freight train.
The case came to the Supreme Court of the United States, having
been upheld by the State courts. The Supreme Court regarded it
as an arbitrary limitation on £he right of persons equally competent
with those admitted to engage in service. A brakeman having
served two years may receive an appointment without any proof of
fitness, while all others are barred from even attempting to show
their competence, thus taking from the hands of the railroads the
power of selection and promotion, which “ is a matter of private
business management,” and enforcing the exclusion of those whom
testimony at the trial declared to be better qualified by reason of
experience than were the brakemen who were favored by the law.87
EMPLOYMENT OF WOMEN AND CHILDREN.
WOMEN.

Kestrictions of an entirely different nature are those which affect
the employment of women and children, these laws being enacted in
the interest of the health and safety of the persons to whom they
relate. The influence of an occupation on individual and public
morals may also receive consideration, and laws based on all these
grounds have been pretty consistently upheld by the courts passing
on them. An ordinance of the city of San Francisco prohibiting the
employment of women in wine cellars was declared unconstitutional
on the ground that it violatecbthe provisions of the eighteenth section
of article 20 of the State constitution, which provides against dis
tinctions in business or vocation on account of sex.88 Laws of identi
cal provisioi# are in force in many States, however, and the same
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EM PLOYMENT OF W O M EN AND CHILDREN.

end seems to have been gained in the enactment of a city ordinance
of San Francisco prohibiting the issue of licenses to liquor dealers
who employ females as waitresses, this act being held to be consti
tutional.89
CH ILD R E N .

The employment of children is universally recognized as being a
proper subject for regulation by the State, though a law of Penn
sylvania (Acts of 1905, p. 344) relating to the employment of chil
dren in coal mines was held to be unconstitutional in some of the
provisions relating to its administration. Thus children who were
able to furnish certain documentary proof of age were released from
some of the requirements as to school attendance that affected chil
dren who were without such documents, putting minors of equal age
and, by fair presumption, of equal qualifications otherwise, on a
different footing merely because one class had certain proofs avail
able which the other did not have.90 The lower court had also con
demned the law on the ground that it imposed onerous duties on
school officers employed for the performance of other services to the
State, and compensated for the latter only.
(A desire to secure a uniform regulation of child labor must be
recognized as the motive for the act of Congress (act of September
1, 1916, 39 Stat. 675) forbidding the movement in interstate com
merce of the products of the labor of a child under the age of 16 in
a mine, or under the age of 14 in a mill^factory, etc.; also if a child
"uder 16 was employed ™ Q ^11 or factory more than 8 hours per
day or between the hours pf 7 p m arid fi a
in' effect only 30 days from the time of such employment, but was
an obvious interference with the employment of children under
16 in all the occupations named, and as such was opposed by em
ployers.) The act was held unconstitutional (four Justices dissent
ing) , as going beyond the commerce power of Congress and
interfering with the powers reserved to the States. The goods
themselves were said to be harmless, so no matter of the public
health was affected by their shipment. The regulation of the condi
tions of manufacture was the apparent purpose of the act, and this
Congress was not authorized by the Constitution to attempt.91 .
A later enactment, known as the child labor tax law (sec. 1200 of
the revenue act of February 24, 1919, 40 Stat. 1138), provided for a
tax of 10 per cent of the net profits of any employer employing
children otherwise than according to the standards set up in the act,
which were the same as in the act of 1916. This was found by the
•court to be so palpably of “ prohibitory and regulatory effect and
purpose,” as regards the employment of children, that “ a court must
be blind not to see that the so-called tax is imposed to stop the
employment of children within the age limits prescribed.” This
being a subject “ not intrusted to Congress but left or committed by
the supreme law of the land to the control of the States,” the-act
must be declared unconstitutional.92 One Justice dissented, but with
out writing any opinion.*8
88 F o ste r v . P o lice C om ’rs. (1 8 9 4 ), 102 C alif. 4 83, 37 P ac. 763.
88 C o lle tt v . S co tt (1 9 0 6 ), 30 P a. S u p erior Ct. 430.
81 H am m er v . D ag en h a rt (1 9 1 8 ), 247 U. S. 251, 38 Sup. Ct. 581.
^82 B a iley v . D rexel F u rn itu re Co. < 1 9 2 2 ), — U . S. — , 42 Sup. C t. 4 49.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

PROTECTION OF LOCAL LABOR.
PUBLIC W O R K S .

Statutes favoring local or citizen labor are found in many juris
dictions, such legislation taking a wide variety of forms. These
laws may directly prohibit the employment of aliens on works carried
on by or for the benefit of the State, or they may seek to gain some
thing of the same end by indirect means. A law of the State of
Illinois (act of June 1, 1889) provided that no officer acting for any
city and no contractor under a municipality should employ any
persons other than citizens or those who have declared their intention
to become citizens, if the sums to be paid as wages for labor were to
be taken in whole or in part, directly or indirectly, out of any funds
raised by taxation. A quite similar law was enacted in 1894 by the
Legislature of New York (Acts of 1894, ch. 622). These laws were
alike held to be unconstitutional, both because they interfered with
the rights of the contractor to contract freely and because they vio
lated the equal-protection clause of the fourteenth amendment, whose
provisions extended to aliens as well as to citizens.93
Despite the adverse finding by the New York Supreme Court,
Appellate Division, in the Warren case above, the provision of the
New York statute restricting employment on public works to citizens
of the United States with preference to citizens of the State of New
York was retained as section 14 of the labor law of the State (ch. 36,
Acts of 1909; Con. L., ch. 31). In a later case94 arising under this
statute a contractor had employed aliens in the construction of a
subway system for New York City, and the public service commis
sion undertook tu declare the contract void for this illegal employ
ment. The trial court sustained the law, but the appellate division
of the supreme court took the same attitude as in the Warren case
and declared the law invalid. The case was then taken to the court
of appeals, where the law was sustained as constitutional (214 N. Y.
629, 108 N. E. 1095). The Supreme Court of the United States
approved the decision of the court of appeals in its recognition of the
State as a unit of which those who are not citizens are not members.
In entering into or providing for contracts for public works the
members of the State are contracting or expending their own moneys
through agencies of their own creation. The power of regulation
rests with the State whether it itself 'undertakes a public work or
whether such work is cared for by one of the governmental agencies
in whom the power is invested.
The foregoing case involved the right of an employer to carry out
the contract in which he had engaged in spite of his disregard for
the provisions forbidding the employment of aliens. The statute also
makes this disregard a misdeameanor, subjecting to penalties, and
in another case a prosecution was undertaken against a contractor
for his violation of this statute. The history of this case paralleled
that of the Heim case, conviction being had in the trial court, a
reversal in the appellate division of the supreme court and a re
versal of the latter decision by the court of appeals of the State.95
»8 C ity o f C hicago v . H u lb ert (1 9 0 3 ), 205 111. 346, 68 N . E. 7 8 6 ; P eo p le
(1 8 9 5 ), 34 N . Y. Supp. 942, 13 M isc. 615.
** H eim v, M cC all (1 9 1 5 ), 2 39 U . S. 175, 36 Sup. Ct. 78.
P eo p le v . C ran e (1 9 1 5 ), 2 14 N . Y. 154, 108 N . E . 4 27.

W arren

PROTECTION OF LOCAL LABOR.

In this case it was pointed out that the construction of public works
involved the expenditure of public moneys, and, “ it may be, to pre
vent pauperism among them, the legislature has declared that the
moneys of the State shall go to the people of the State.” The court
declined to pass upon the wisdom of the act, but declared it within
the power of the legislature—a judgment which was affirmed in 1915
by the Supreme Court on appeal in the same case (239 U. S. 195, 36
Sup. Ct 85).
T A X ON A L IE N EM PLOYEES.

Private employers were affected by a law of Pennsylvania ( Acts of
1897, No. 139) which required employers of aliens to pay a tax of
3 cents per day for each alien in their employment of the age of 21
years or above, which tax could be deducted from the wages of the
employee. This law was condemned as unconstitutional in cases
which came before the supreme court of the State and a Federal
court, both courts holding that the act violated the equal-protection
provisions of the fourteenth amendment, since the classification was
without reasonable basis.96
Not restricted to employees, but by its terms including all aliens,
an act of the California Legislature of 1921 (ch. 424) levied a poll
tax on every alien male inhabitant of the State between the ages of
21 and 60 years. Employers having such aliens in their employment
were authorized, on notice of delinquency, to withhold the tax, with
penalty and interest, from the amount of wages due at the time of
the next payment, with provision for notice to the employee of the
claimed delinquency. To this extent the statute is a labor law. The
constitutionality of this act was challenged by an application for a
writ of habeas corpus to secure the release of a Mexican held for
failure to pay the tax prescribed. The supreme court of the State
declared the law unconstitutional as denying “ to any person within
its jurisdiction the equal protection of the laws of any State.” The
tax, based solely on the alien character of the persons affected, at
tempted a discrimination between them and other inhabitants of the
State who are not required to pay such a tax, and was invalid.97
EM PLOYM ENT OF A L IE N S.

The Legislature of Arizona went a step further than mere taxa
tion, and forbade any employer of more than 5 persons to have more
than 20 per cent of the employees not qualified electors or nativeborn citizens of the United States (initiative act, p. 12, Acts of 1915).
A district court of the United States granted an injunction to pre
vent the enforcement of the act (219 Fed. 273), the court taking the
view that the act was unconstitutional. The case was then appealed
to the Supreme Court of the United States, in which the judgment
of the court below was affirmed.98 The court held that an immigrant
lawfully within the United States was entitled to the equal protection
of the laws of the State within which he resided, without regard to
race, color, or nationality. The purpose of the act, as announced by
its title, was “ to protect the citizens of the United States in their
employment against noncitizens of the United States in Arizona.”
»• J u n ia ta L im eston e Co. v. F a g le y (1 8 9 8 ), 187 P a. St. 193, 40 A tl. 9 7 7 ; F ra ser
M cC onw ay & T orley Co. (1 8 9 7 ), 82 F ed. 257.
W E x p arte K o tta (1 9 2 1 ), 187 C alif. 27, 2 00 P ac. 9 57 .
•• T ru ax v . R aich (1 9 1 5 ), 239 U. S. 33, 36 Sup. Ct. 7.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

This inequality/of treatment imposed limitations upon the conduct
of ordinary private business and interfered with the opportunity of
aliens lawfully within the State to earn a livelihood. The fact that
20 per cent of the workers might be aliens does not save the act from
its vice of unlawful control, since the power to restrict would imply
the power to prohibit, so that the act must fall in its entirety.
An Idaho statute attempted the total exclusion from employment
by corporations, either municipal or private, doing business in the
State of Idaho, of aliens who had not prior to the time of such em
ployment declared their intention to become citizens of the United
States (Revised Codes of Idaho, sec. 1458). An agent of a corpora
tion was convicted of a violation of the -statute in employing an un
naturalized alien, and a fine was assessed, with an alternative of a
jail sentence in default of payment. A writ of habeas corpus was
applied for, and release was ordered by the supreme court of the
State, the law being declared unconstitutional since,under the equality
provisions of the Federal Constitution, race, color, and nationality
are not a basis for the determination of rights."
A State legislature by legislative enactment or otherwise has no authority
to deprive a person of the right to labor at any legitim ate business or to deny
any person within the jurisdiction of the United States the equal protection
of the laws, or to prohibit a corporation that has a right to do business in the
State to employ any person, whether alien or native, in the prosecution of
any legitimate business.

It was contended that corporations are the creature of the State,
and are not “ persons ” within the meaning of the fourteenth amend
ment, but this was overruled on the authority of a decision by the
Supreme Court of the United States, holding to the contrary.*1
It can not be overlooked, however, that the principles expressed
in general terms in the foregoing case have been made the subject
of exceptions. Thus a municipal ordinance of the township of
Weehawken, N. J., forbade the operation of motor vehicles for
hire on the public ways except under license, for which only citizens
of the United States could apply. This was contested as unconsti
tutional, but the supreme court of the State sustained the provision,
saying that the privilege of so using the jpublic streets of the town
ship was subject to the control of the township, not being a general,
inalienable right belonging to human beings, like the right to labor
lor a living.2* Cases outside the field of the labor contract or of
industry were cited, as those upholding laws forbidding aliens to
hunt and fish, which are found in several States.
In a f e w t h e Western States legislation addressed specifically
to the employment of Chinese was enacted, prohibiting their employ
ment by municipal corporations (Colorado, Acts of 1872, p. 9) or
by corporations generally (California, constitution, art 19, sec. 2;
act of February 13,1880). These laws were declared void as in con
travention of the provisions of the fourteenth amendment and also
as conflicting with the treaty rights of the Chinese.8 The right of
Chinese to work mining claims was denied them under legislation
99 E x p arte C ase (1 9 1 1 ), 20 Id ah o 128, 116 P ac. 1037.1 G u lf, C. & S. F. R. Co. v . E llis (1 8 9 7 ), 165 U . S. 150, 17 Sup. C t. 255.
2 M orin v . N u n an (1 9 1 8 ), 91 N. J. L. 506, 103 A tl. 378.
8 B ak er v. C ity o f P o rtlan d (1 8 7 9 ), F ed. C ases, N o. 7 77, 5 S aw y. 5 6 6 ; In re P a r r o tt

( 1 8 8 0 ), 1 F ed. 481.

PROTECTION OF LOCAL LABOR.

authorized by section 8, article 15, of the constitution of the State
of Oregon. In a case coming before a Federal court, involving this
right, it was held that the Chinese were within their treaty rights in
working claims, any law of the State or provision of its constitution
to the contrary notwithstfnding.4
The foregoing legislation was directed against the Chinese in
terms. Other attempts were made to accomplish the same ends by
indirection. Thus the city of San Francisco passed ordinances pre
scribing the kinds of buildings in which laundries may be located,
forbidding the use of any other than a brick or stone building
within the corporate limits of the city and county of San Francisco,
without prior consent of the board of supervisors. These ordinances
were passed in 1880, and in experience resulted in a practically uni
form refusal by the supervisors to license Chinese, while other laun
dries operated under similar conditions by Caucasians were “ left
unmolested and free to enjoy the enhanced trade and profits arising
from this hurtful and unfair discrimination.” The records showed
that practically 200 Chinese were refused licenses in frame buildings,
while some eighty-odd licenses were allowed for other applicants in
similar buildings, but one refusal having been made.
Cases under these ordinances came before the supreme court of the
State5 and the circuit court of the United States.6 The former
took the view that the ordinances gave the board of supervisors dis
cretion to decide upon the propriety of each individual case and act
accordingly, holding that the orders themselves were not in contra
vention of common right or of unjust or oppressive effect “ in such
sense as authorizing us in this proceeding to pronounce them in
valid.” The United States circuit court was of the opinion that
while the supervisors might properly pass a valid ordinance regu
lating the laundry industry, it was improper to reserve an arbitrary
discretion, or permit a discrimination which would nullify the
provisions of the National Constitution as had been done in this case.
However, in deference to the decision by the supreme court of the
State, though contrary to his own opinion, the judge remanded the
defendant for imprisonment for his violation of the ordinance. The
Supreme Court of the United States was unanimous in its judgment
that the ordinance was not a proper regulation, but merely laid
down “ an arbitrary line, on one side of which are those who are
*permitted to pursue their industry by the mere will and consent of
the supervisors, and, on the other hand, those from whom that con
sent is withheld, at their mere will and pleasure.” Aliens legally
resident in the United States, whether permanently or temporarily,
Chinese laborers or Chinese of any other class, are entitled to “ the
same rights, privileges, immunities, and exemptions as may be en
joyed by the citizens or subjects of the most-favored nation,” accord
ing to the treaty then in force. This brought them under the direct
protection of the fourteenth amendment as to equality of rights, and
invalidated the ordinances as they were being construed and
enforced.7
* C hapm an v . T oy L on g (1 8 7 6 ), F ed . C ases, N o. 2610, 4 S aw y. 28.
6In re Y ick W o (1 8 8 5 ), 68 C alif. 294, 9 P ac. 139.
• I n re W o L ee (1 8 8 6 ), 26 F ed . 471.
7Y ick W o v . H op k in s (1 8 8 6 ), 118 U . S'. 356, 6 Sup. C t. 1064.
11934°— 22------ 3

LABOR LAWS DECLARED UNCONSTITUTIONAL.

Over against this clear-cut decision, unanimously rendered, atten
tion may be directed to what must be looked upon as a close case
involving quite similar conditions.8 This case considered a law of
the State of Montana (Revised Codes, sec. 2776) which imposed
upon the laundry business a license tax hut exempted steam laun
dries and laundries in which women were engaged if not more than
two women were employed. The contention was made that these
exemptions and discriminations rendered the law invalid, denying
to men operating hand laundries the equal protection of the laws
as contrasted with women. The statute was upheld, one justice dis
senting, the court holding that 44if the State sees fit to encourage
steam laundries and discourage hand laundries that is its own affair;
and if, again, it finds a ground of distinction in sex that is not
without precedent.” However, it was conceded that if the objection
was raised and properly presented that the statute is a discrimina
tion aimed at the Chinese, such an objection might prove real.
Since counsel had omitted to take the proper steps, the court was
not called upon to institute inquiries on its own account. The de
cision, therefore, did not take this feature into consideration, even
though 44it is impossible not to ask whether it is not aimed at the
Chinese, which would be a discrimination that the Constitution does
not allow,” citing Yick Wo v. Hopkins, above.
IM M IG R A T IO N .

Section 2952 of the Political Code of California immediately
affected immigration by directing the State commissioner of immi
gration to require of the master, owner, or consignee of any vessel a
bond of indemnity for the benefit of any municipality that might be
at costs on account of the infirmities or vices of certain classes of
immigrants. This act was deemed in effect if not in form as ad
dressed to immigrants of a particular nationality, and was held to
be in conflict with a statute of the United States (act of May 31,
1870), which prohibited the imposition or enforcement by any State
of any tax or charge upon persons immigrating thereto from a for
eign country which is not equally imposed or enforced upon every
person immigrating from any other foreign country.910 A law was
enacted by the legislature of this State in 1891 (ch. 140) attempting
the absolute prohibition of Chinese immigration. This act was held#
to go beyond the power of the State and to conflict with the Constitu- *
tion of the United States, which gives to Congress the exclusive
power of legislation on the subject of immigration.19 The Federal
Government itself was held to have exceeded its legislative powers
by an act (sec. 4, ch. 60, act of May 5, 1892) which provided that
if Chinese were found to be unlawfully within the boundaries of the
United States they should be imprisoned at hard labor for not more
than one year and then deported. The Supreme Court held that
while immigration might properly be restricted by congressional
action, imprisonment at hard labor without trial was in violation
of the fifth and sixth amendments of the Constitution, which pro
vide that no one shall be held for capital or otherwise infamous
8 Q uong W in g v . K irk en d a ll (1 9 1 2 ), 2 2 3 U . S. 59, 32 Sup. C t. 192.
• In re A h F o n g (1 8 7 4 ), F ed . C ases, N o. 1 02, 3 S aw y. 144.
10 E x p a rte C ue (1 8 9 4 ), 101 C alif. 1 97 , 35 P ac. 556.
A

PROTECTION OF LOCAL LABOR.

crimes unless ©n presentment or indictment by a grand jury, and that
in all criminal prosecutions the accused shall have speedy and public
trial by an impartial jury. The act in question conferred am ex
cess of authority upon the executive officers of the United States
and was therefore void.11
The difficulties attendant upon legislation of the above nature
were foreshadowed in an act of the Louisiana Legislature of 1842
(Act No. 123), providing that no free Negroes should come into the
State on any vessel as a member of the crew or as a passenger, and
requiring the commitment of anyone so brought, the costs to be
paid by the master of the vessel. This statute was declared void
as in violation of the provisions of the fourth article of the Constitu
tion of the United States as to the rights of citizens of each State
being recognized in all the States.12
E X T R A S T A T E PRODUCTS.

A law, the intent of which was to protect domestic labor from the
competition of outside labor was embodied in the labor law of New
York (Acts of 1897, ch. 415, sec. 14), which provided that “ all stone
of any description, except paving blocks and crushed stone, used in
State or municipal works in this State, or which is to be worked,
dressed or carved for such use, shall be so worked, dressed, or carved
within the boundaries of the State.” A contractor on public works
in New York City set a sewer basin of granite, cut, dressed, and
carved in New Jersey, and was denied payment, in accordance with
the provisions of the above law. The law was declared unconsti
tutional as conflicting with the property rights of the contractor,
invading his powers as a citizen to make contracts, and attempting
to make acts and omissions penal which are in themselves innocent
and harmless. It wa§ also held to be in conflict with the commerce
clause of the Federal Constitution.13 It may be mentioned in this
connection that an ordnance of the city of St. Louis which con
tained a provision similar to the above was held by the Supreme
Court of Missouri not to be of itself invalid, and, according to the
facts developed in the case under consideration, not to have re
stricted competition nor increased the cost of the public works in
connection with which the action was brought, and was therefore
valid.14
In sustaining this ordinance the court cited a decision by the
Supreme Court of the United States, declaring the constitutionality
of a Kansas statute, which regulated the conditions of employment
on public works, on the ground that the State had the power as
guardian and trustee of its people to prescribe the conditions upon
which it will permit public work to be done.15 This situation reflects
the same principle that is involved in the Heim case (p. 26), in
which a restriction of the employment of aliens on public works is
held valid, in contrast with a similar restriction in private employ
ments (see Truax v. Raich, p. 27), which is condemned.*32
ii W ong W in g v. V n i t e t i S ta te s (1 8 7 0 ), 163 U . S. 228, 16 Sup. C t. 977.
32 T h e C yn osure (1 8 4 4 ), F ed. C ases, N o. 3529, 1 Spr. 88.
i» P eop le ex rel. T rea t v. C oler (1 9 0 1 ), 166 N . Y. 144, 59 N . E . 776.
i* A llen v . L ab sap (1 9 0 5 ), 188 Mo. 6 92, 8 7 S. W . 9 26.
™Atkin v. Kansas (1 9 0 3 ), 191 U . S. 207, 24 Sup. Ct. 124.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

Going perhaps outside the strict boundaries of labor legislation
as such, but expressive of the same purpose to favor State industries
and citizens, are laws and ordinances which provide a special tax or
a different rate of taxation where extrastate products are the sub*
ject matter. Thus a statute enacted by the Legislature of Missouri
defined peddlers as persons going from place to place to sell goods,
etc., “ not the growth, produce, or manufacture of this State,” and
prescribing a license tax. This obvious discrimination against the
goods from outside the State was declared to be beyond “ the power
of the legislature to direct,” nor could it be defined on the ground
that it was “ a tax upon a calling.”. The power of Congress to regu
late commerce between the States being exclusive, the State could
not encroach upon it, and the statute was declared unconstitutional
and void.16 The same defect was fatal to an earlier law of Mary
land (ch. 162, Acts of 1827), which authorized the city council of
Baltimore to collect wharfage for “ goods or articles other than the
products of this State ” on the city wharves;17 so also of an ordi
nance of the city of Mobile.18 Another Maryland statute that was
held invalid required persons not permanent residents of that State
to pay a higher rate of license than resident traders—a provision
that offended against the constitutional requirement as to equal
privileges and immunities in each State for the citizens of the several
States.19
The foregoing cases are cited as illustrative of attempted grants of
privilege to the citizens of the State and its products as against those
of other States, no attempt being made to exhaust the list.
CO N V IC T -H A D E GOODS.

The prevention of competition between free and convict labor is
the purpose of statutes restricting the sale of convict-made goods,
requiring that they be marked, or that dealers therein procure a
license, or both. Laws of New York (ch. 698, Acts of 1894, and
ch. 931, Acts of 1896) and of Ohio (act of May 19, 1894) of the
above intent were declared unconstitutional inasmuch as it was not
competent for State legislatures to pass laws discriminating against
or excluding by unfriendly legislation articles of manufacture trans
ported from another State, the powers of Congress being complete
and exclusive in the regulation of commerce.20
In accordance with the practice permitted by the constitution of
Massachusetts, the house of representatives of that State called upon
the supreme court for an opinion as to the constitutionality of a
proposed measure requiring convict-made goods offered for sale in
the State to be marked with the words “ convict-made,” whether
manufactured within or without the State. This was held to be an
interference with interstate commerce, and the fact that it applied
also to goods manufactured within the State for sale within the
State would not legitimate the act. “ There is nothing wrong in the
nature of things in prison-made goods. Such goods are not insani18 W elton v . M issou ri (1 8 7 6 ), 91 U . S. 275.
17 G uy v . B a ltim o r e (1 8 8 0 ), 100 U. S. 434.
18 W oodruff v . P arh am (1 8 6 9 ), 8 W all. (7 5 U . S .) 123.
“ W ard v . M arylan d (1 8 7 1 ), 12 W all. (7 9 U . S .) 418.
20 P eo p le v . H a w k in s (1 8 9 5 ), 85 H un . 43, 3 2 N . Y. Supp. 5 2 4 ; P eo p le

v . H a w k in s
(1 8 9 8 ), 1 57 N . Y. 1, 51 N . E. 2 5 7 ; A rn old v . Y an d ers (1 8 9 7 ), 5 6 O hio S t. 417, 4 7 N . E.
50 ; In re Y an d ers (1 8 9 2 ), 1 O hio N . P . 190, 2 O hio D ec. 126.

EM PLOYMENT OFFICES.

tary or so inferior in quality that their sale would constitute a fraud
on the public.” The measure, therefore, is riot in the interest of
health and does relate to interstate commerce and can not be con
stitutionally enacted.21
MUNICIPALITIES ENGAGING IN BUSINESS.

Hardly falling within the definition of labor laws, but affecting
employment conditions to some extent, are those laws that undertake
to permit the State or a subdivision of it to carry on business such
as is usually left to private initiative. The city of Kansas City,
Mo., undertook the project of supplying the city institutions with
ice by the maintenance of a municipal ice plant. The ordinance
providing for this purpose also proposed to sell to private con*
sumers, and provided for an election and an issue of bonds for the
carrying out of this purpose. The ordinance was declared to be
outside the power of the city to enact, even though its charter might
have permitted it, both the common law and the constitution of the
State forbidding the levying and collection of taxes by a city for
any private purpose or business.® A similar view was taken by the
Supreme Court of Georgia in regard to a provision undertaking to
authorize the city of Wayeross to engage in the plumbing business
and to furnish supplies as a part of the undertaking to establish
and operate a municipal waterworks system.6 The purpose of oper
ating a stone quarry in connection with the construction and main
tenance of the streets of the city was likewise held by the Supreme
Court of Virginia to be beyond the power of a municipal corpora
tion.22 The same condemnation has fallen upon the proposition to
establish municipal fuel plants in Massachusetts and Michigan, on
the ground that municipal corporations may not engage in private
business or use public money in business ventures in fields of cus
tomarily private business.23
Over against the foregoing opinions may be noted a decision of
the Supreme Court of Maine,24 in which it was held that an enact
ment of the State legislature (R. S. 1916, ch. 4, sec. 64) was valid,
and that under the existing circumstances the use of the money in
that way was a public use. A similar finding was made by the
Supreme Court of Georgia with regard to the establishment of an
ice factory, its operation being an incident to the operation of a light
ing plant already existing.25
EMPLOYMENT OFFICES.

The establishment of employment offices as a private undertaking
involves the element of profit from the service rendered in bringing
employers and employees together. In a number of States this
service is undertaken also by the establishment of free public offices
21 In re O pinion o f th e J u stic e s (m a rk in g o f con vict-m ad e good s) (1 9 1 2 ), 211 M ass.
605, 98 N . E . 334.
« S ta te v . O rear (1 9 1 9 ), 277 M o. 303, 2 1 0 S. W . 392.
b K een v . M ayor o f W ayeross (1 8 9 7 ), 101 G a. 588, 29 S. E . 42.
22 R ad ford v . C lark (1 9 1 2 ), 113 V a. 199, 73 S. E . 571.
23 In re M u n icip al F u el P la n ts (1 8 9 2 ), 155 M ass. 598, 30 N. E . 1 1 4 2 ; in re M unicipal
F u el P la n ts (1 9 0 3 ), 182 M ass. 605, 66 N . E. 2 5 ; B ak er v . G rand R ap id s (1 9 0 6 ), 142
M ich. 687, 106 N. W . 208.
24 L au g h lin v . C ity o f P ortlan d (1 9 1 4 ), 111 M e. 486, 90 A tL .318.
28 H o lto n v . C ity o f C am illa (1 9 1 0 ), 134 Ga. 560, 68 S. E . 472.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

maintained by the State, the municipality, or by the two in coopera
tion. In the latter case the entire procedure is necessarily based on
statutes creating and prescribing the conduct of the office. The con
duct of private offices is also regulated by statute in many jurisdic
tions, and the validity of such jurisdiction is generally recognized.
F E ES.

A law of California, however (Acts of 1903, ch. 11), contained a
provision limiting the fee to be charged by private offices for their
services in procuring employment, and this provision was declared
to be an unconstitutional infringement on the right of citizens to
contract.26 This provision is found in the laws of several States
whose constitutionality generally has been upheld.27 It is clearly
within the principle of laws regulating rates of interest and discount,
and does not appear to have been regarded as invalid elsewhere;
though it may be noted that in the Brazee case above attention was
directed to the section fixing limitations on charges for services, the
court saying that the validity of this provision had not been passed
upon by the supreme court of the State and was not considered by
the United States Supreme Court. It was added that the provisions
appear to be severable and might be eliminated without affecting the
other portions of the act.
An initiative act of Washington (Initiative Measure No. 8, 1914),
prohibited the collection of fees from employees. This act was
construed without any challenge of its constitutionality in a deci
sion by the supreme court of the State.28 However, a somewhat
earlier decision was rendered by the United States District Court
in which the constitutionality was directly passed upon, the court
sustaining the legislation as a valid exercise of the police power of
the State.29 The question was then taken to the Supreme Court of
the United States, where the law was declared unconstitutional by
a divided court (five to four), the court, finding that, though such
agencies are subject to regulation and control, there was no ground
for the suppression of a business that had in it “ nothing inherently
immoral or dangerous to public welfare,” by means of which the
proprietor, “ can earn an honqst living ” by service which “ is use
ful, commendable, and in great demand.80 Vigorous dissent was
expressed in this case on the ground that “ the law in question is a
valid exercise of the police power of the State directed against a
demonstrated evil.”
I e e v ic e b y p u b l ic o f f ic e s .

Where the public undertakes the conduct of employment offices,
the service rendered must be without discrimination, so that a pro
vision of an act of the Legislature of Illinois (Acts of 1899, p. 268)
which forbade the furnishing by public employment offices of names
of applicants for work to employers whose workmen were on strike
was necessarily unconstitutional. Two discriminations were pointed
E x p a rte D ick ey (1 9 0 4 ), 144 C alif. 234, 7 7 P ac. 924.
27 P eo p le ex rel. A rm stron g v . W arden (1 9 0 5 ), 183 N . Y. 223, 76 N . E . 1 1 ; B ra zee
M ich igan (1 9 1 6 ), 241 U . S. 340, 86 Sup. Ct. 561.
® H u n tw o r th v . T an n er (1 9 1 5 ), 87 W ash. 670, 152 P ac. 523.
29 W isem an v . T an n er (1 9 1 4 ), 2 21 F ed . 694.
*> A d a m s v . T an n er (1 9 1 7 ), 244 U . S. 590, 3 7 Sup. Ct. 662.

COMPULSORY LABOR.

out by the court, one against employers whose employees were on
strike and the other *against workmen seeking employment who
were willing to accept service where workmen had gone out as
strikers, the rights of these two classes being under the Constitution
coordinate with those of other groups of employers and workmen.31
E M IG R A N T AGENTS.

A few of the Southern States embody in their taxing laws a
heavy tax on emigrant agents, i. e., persons engaged in the hiring
of laborers to go outside the State for service. An act of the Legis
lature of North Carolina (Acts of 1891, ch. 75) laid a tax of $1,000
on the conduct of the business of emigrant agent in that State, the
law applying to a few designated counties. The court declared
that this law, prescribing no regulation as to conduct of the busi
ness nor any police supervision, was restrictive and prohibitory,
and void as an attempted exercise of police power; or, if to be
considered as a taxing law, it was void for want of uniformity.32
A law of Alabama (Acts of 1881-82, p . 162) that was held to
interfere unwarrantably with the rights of both employers and
workmen, provided that no person should be permitted to employ,
engage, contract with, or in any other way induce laborers to leave
certain counties where the intention was to remove such laborers
from the State, unless the persons so employing, etc., had paid a
license tax of $250 for each county. This act was construed by
the court as restricting the rights arid privileges of laborers to
free emigration as citizens of the United States, inasmuch as it was
not a tax on the occupation of employment or emigrant agent, but
upon the act of hiring even a single employee, and was for this
reason held to be unconstitutional.33
UNEMPLOYMENT RELIEF.

The purposes of unemployment relief are well known. Several
statutes have been enacted looking toward the prosecution of public
works with a view to giving employment to citizens thereon. Such
an act of the Idaho Legislature proposed cooperation between the
State and its counties, the latter to contribute and to carry on the
work, receiving proportionate sums from the State treasury (ch.
27, Acts of 1915). This act was held to violate the State constitu
tion in its plan to divert State funds for expenditure by the counties,
as such money could be paid out only on specific appropriation by
the legislature.34 This finding invalidated only certain sections of
the act, but they were held essential, so the entire act fell.
COMPULSORY LABOR.

In pursuance of a purpose to secure full production during the
period of the war, a number of States enacted laws or otherwise
made provision for compulsory work by able-bodied men for fixed
periods per week. One of these States was West Virginia (ch. 12,
81M ath ew s v . P eop le (1 9 0 3 ), 202
*• S ta te v . M oore (1 8 9 3 ), 113 N.
83Josep h v . R an d olp h (1 8 8 2 ), 71
84E pp erson v . H ow ell (1 9 1 6 ), 28

111. 389, 67 N. E. 28.
C. 697, 18 S. E. 342.
A la. 4 99 , 46 A m . R ep. 347.
Id ah o 338, 1 54 P ac. 621.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

second extra session, 1917)'. The act was limited to the period of
the war and six months thereafter, and at the time of the trial its
status was uncertain in view of the question of whether or not
the war was ended by the armistice or the final determination of
peace. However, the court regarded the act as unconstitutional,
saying that it “ ought to be so declared.” The statute was said
not to subserve any purpose for which a citizen might rightly be
deprived of his liberty, requiring those within its scope, regardless
of financial ability, to work a fixed number of hours without regard
to the necessities of themselves or of those dependent upon them.
Though an actual motive to oppress would not be imputed, still
the actual operations of the statute must be considered, and the
court must “ strike it down if it becomes an instrument ox coercion
forbidden by the Federal Constitution.” 35 It may be noted that a
similar statute was upheld by the Court of General Sessions of
Delaware, the presumption being in favor of the act as a war
measure unless expressly or impliedly prohibited by the Constitu
tion of the United States—a situation that the court did not find.36
The view taken in the Hudgins case was that adopted by the
Supreme Court of Missouri in passing upon the constitutionality
of an ordinance (No. 33205) of the city of Kansas City. This was
in form a vagrancy ordinance, and provided punishment by fine
or imprisonment for able-bodied persons not working and without
visible means of support, and also for those found guilty of certain
political offenses, chiefly^relating to war-time conditions. The vari
ous provisions of the ordinance were considered separately, the one
relating to failure to secure lawful employment, or to “ show reason
able effort” in respect of such employment, being regarded as in
valid because of indefiniteness. The State law defines “ vagrants,”
and “ no municipality in the State can lessen or broaden that defini
tion.” The conflict between State and city regulations furnished
another reason for declaring the ordinance void. The political pro
visions were found to be subjects of Federal determination rather
than of State cognizance. The entire ordinance was therefore de
clared void.37
WAGES,

Numerous statutes have been enacted directed to the subject of
wages, regulating the amount, security for payment, medium and
time of payment^ suits, assignments, etc. A considerable number of
laws of this class has been declared unconstitutional by the courts,
either because of their infringing on the right to contract or because
they were discriminatory in their nature.
R A TE S ON PUBLIC W O R K .

A law of the State of New York (Acts of 1897, ch. 415), amended
by chapters 192 and 567 of the Acts of 1899, required that rates of
wages on public work be not less than the prevailing rates in similar
employments in the locality in which the work was done. By its
terms the law applied to employment directed by the city and to
work done by contractors as well, the penalty for violation by a8567
85 E x p arte H u d g in s (1 9 2 0 ), 8 6 W . V a. 526, 103 S. E. 327.
86 S ta te v . M cC lure (1 9 1 9 ), SO D ei. 265, 105 A tl. 7 12.
87 E x p a rte T a ft (1 9 2 0 ), 2 8 4 M o. 5 3 1 , 2 2 5 S. W . 4 57 .

WAGES.

contractor being the withholding of the amount due under his con
tract. In a case in which a contractor sued to compel payment on
a contract for work, done by him for the city of New York, in the
performance of which he had paid less than the current wages, the
act was declared unconstitutional as invading the rights of liberty
and property, denying to the city and to contractors the right to
agree with their employees as to the amount of compensation to be
paid. The statute was also condemned as penalizing acts in them
selves innocent and harmless.38 In a subsequent case the attitude
indicated above was modified to the extent of holding that the city
was governed by this law in so far as it related to direct employ
ment by the municipalities, though it was void as to contractors,
who must simply effect specified results, and who are at liberty to
make contracts freely with their workmen.39
The foregoing decisions are opposed to a decision of the Supreme
Court of the United States, to the effect that municipalities are but
the agent of the State for the performance of certain duties best
attended to locally, and that it rests with the State to make such
conditions for contractors as it may choose, the contractor being free
to make terms or not; but if he undertakes work for the State or a
municipality, both he and the municipality must conform to the con
ditions laid down by the State.40 The people of the State, subsequent
to these decisions, adopted an amendment to the constitution for
mally conferring upon the legislature power to act in the manner
previously attempted, regulating the conditions of employment,
whether the work be done by the city directly or by a contractor.
The legislature thereupon reenacted the law above considered, in
practically its original form (including the regulation of the hours
of labor also held unconstitutional; see p. 53, below), and this law
has been declared constitutional.41
An Indiana statute (act of March 9, 1901) provided that unskilled
laborers employed upon any public work of the State, counties,
cities, and towns, should be paid at a rate of not less than 30 cents an
hour. The supreme court of the State held that counties, cities, and
towns are corporations with a right to make contracts for the expen
diture of money raised by local taxation, and are not subject to the
arbitrary and unlimited control of the legislature. The law was said
to be obnoxious also in that through its operation a citizen might be
deprived of his property without due process of law, and that inas
much as the law merely attempted to fix a minmimum rate of wages
to be paid a single class of laborers, it undertook an unnatural classi
fication, rendering the statute invalid, as class legislation.42 This
decision also conflicts in part with that of the Supreme Court in the
Atkin case, handed down the same year.
The doctrine of the Atkin case was not found to apply in a case
involving the constitutionality of an act of the Legislature of Ne
braska (ch. 17, Acts of 1909) which undertook to regulate the con
ditions of employment on the public wbrks of cities of a designated
class, naming $2 as the rate of daily pay. This was given as one
88 P eo p le ex. rel. R odgers v . C oler (1 9 0 1 ), 166 N. Y. 1, 59 N . E . 716.
39 R yan v . C ity o f N ew Y ork (1904,), 177 N . Y. 271, 69 N. E. 599.
40 A tk in v . K a n sa s (1 9 0 3 ), 191 U . S. 207, 2 4 Sup. C t. 124.
41 P eop le ex rei. W illia m s E n g. & C on st. Co. v . M etz (1 9 0 8 ), 193 N. Y. 148, 85 N . E.
>70.
42 S tre e t v . V arn ey E le c tric a l S u pp ly Co. (1 9 0 3 ), 160 Ind. 338, 66 N . E. 895.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

of the reasons for holding the act unconstitutional, since “ no fixed
rate of wages should be provided by the legislature without reference
to the going wages for that kind of work at the time and place where
it is to be performed.”43 This was on the ground that the law favored
one citizen at the expense of another,.taking the property of the latter
without due process of law. Another decision falling in this group
is one of the Supreme Court of Pennsylvania declaring invalid a
stipulation in a contract of the city of Reading fixing $1.50 as the
minimum daily wage to be paid by contractors for public works.44
It was held that this provision was a violation of the law that re
quired such contracts to be let to the lowest responsible bidder, wages
being one of the essential elements of the work, every part of which
must be subject to competition.
The latest expression on this subject is by the Supreme Court of
Wisconsin, in a case involving the constitutionality of an ordinance
%and a resolution based upon it, fixing the rates of wages to be paid
by the city of Milwaukee, or by contractors with the city for public
works, at the prevailing wages for such (skilled) labor, “ said pre
vailing wage to be determined by the wage paid to members of any
regular and recognized organization of such skilled laborers for such
skilled; labor.” This rate was to be approved by the council before
becoming effective, but even this provision did not save the ordinance
from condemnation by the supreme court of the State as an unlawful
attempt to delegate power of a legislative nature to an outside body,
i. e,, a labor organization.45* The ordinance and a resolution under
taking to fix wages in accordance therewith were therefore declared
invalid, though it was declared (in direct conflict with the case
Frame v. Felix, and others, above) that, as a general proposition, a
legislative body such as the city council “ may fix, within a reasonable
and fair compass, the rate of wages to be paid to laborers on city
work,” citing a decision by the Supreme Court of Washington,40 in
volving the identical proposition, the ordinance there being upheld
on the authority of the case Atkin v. Kansas, supra.
DEDUCTIONS FOR D E F E C T IV E W O R K .

The regulation of private contracts was attempted by a law of
Massachusetts (Acts of 1891, ch. 125) providing that “ no employer
shall impose a fine upon, or withhold the wages of, an employee
engaged at weaving for imperfections that may arise during the
process of weaving.” This statute was condemned as interfering
with the right to iiiake reasonable contracts,47 and has been suc
ceeded by a law which permits deduction for imperfect weaving
according to a rate previously agreed upon by the parties in interest.
W E IG H IN G COAL AT M IN ES.

The determination of the amount of wages earned by coal miners
has been made a frequent subject of legislation, the gist of the statute
usually being that coal should not be screened until it has been
weighed and credit given to the miner for the full amount mined by
« W rig h t v . H octor (1 9 1 4 ), 95 N ebr. 342, 145 N. W . 704.
44 F ra m e v . F elix (1 8 9 5 ), 167 F a. 47, 31 A tl. 375.
45 W agn er v . C ity
M ilw au k ee (1 9 2 2 ), — W is. — , 188 N. W . 487.
*® M alette v . S p o k a n e ( 1 9 i3 ) , 77 W ash. 205, 137 P ae. 496.
47 Com . v . P erry (1 8 9 1 ), 155 M ass. 117, 2 8 N . E. 1126.

WAGES.

him. Laws of this class (Illinois, acts of June 14, 1883, June 29,
1885, June 10, 1891, and July 1, 1891; Ohio, act of March 9, 1898;
and Pennsylvania, act of July 15, 1897) were declared unconstitu
tional as depriving property owners and laborers of the right of
making contracts concerning their respective interests, without ad
vancing the general welfare or the public health or morals. They
were also declared invalid as affecting the freedom of contract of
only one class of persons.48 A bill before the Legislature of Colo
rado in 1895 proposing to regulate the weighing of coal and the
mode of determining the basis of compensation for mine labor was
submitted to the supreme court of the State, which held that such a
law would be in conflict with the constitutional provisions to the
effect that no person shall be deprived of liberty or property with
out due process of law.49 Such laws as those considered above have,
however, been declared constitutional,50 and it is significant that
all the findings of unconstitutionality antedate the decision of the
Supreme Court in the McLean case.
M ECH A N ICS’ LIEN S.

The laws of most States give a lien on the property worked on as a
security for the payment of the wages of labor or value of material.
These laws are, in themselves, approved by the courts, but certain
incidental provisions or methods of enforcement have been incor
porated in the statutes of some States in such form as to receive
their condemnation as invalid. Thus a law of California (Code of
Civil Procedure, sec. 1203), was declared void because it made
the owner of the property and the contractor for labor thereon
jointly liable for wage debts, thus virtually charging the owner with
all debts a contractor might incur, and destroying the value of his
agreement with the contractor, by this means depriving the owner
to some extent of his property, interfering unduly with contracts of
a certain class, and effecting unconstitutional discriminations.51
Much the same defect was found to exist in the act of June 8, 1891,
of the Pennsylvania Legislature, which declared contractors to be
the agents of the owner in ordering work or materials in or about the
construction or erection of any work, and gave the subcontractor a
lien, notwithstanding stipulations to the contrary between the owner
and the contractor, unless the subcontractor had agreed in writing
to waive his lien. This statute was held to change without their
consent the contract entered into by the owner and his contractor,
thus violating the provision of the State constitution which declares
indefeasible the right of acquiring, possessing, and protecting prop
erty.52
A later codification of the lien law of the State (act of June 4,
1901, P. L. 431) was found to contain a number of provisions which
were said to conflict with the State constitution, particularly the
provision forbidding the passage of any “ special law providing
^ R a m se y v . P eo p le (1 8 9 2 ), 142 111. 3 80, 32 N. E . 3 6 4 ; M ille tt t\ P eo p le (1 8 8 6 ), 117
111. 294, 7 N . E . 6 3 1 ; H ard in g v . P eo p le (1 8 9 6 ), 1 60 111. 4 59, 43 N. E . 624 ; In re P resto n
(1 9 0 0 ), 63 O hio S t. 428, 59 N. E . 1 0 1 ; Com . v . B row n (1 8 9 8 ), 8 P a. Super. Ct. 339.
» In re H ou se B ill N o. 203 (P a y m e n t for coal m in ed ) (1 8 9 5 ), 21 C olo. 2 7, 39 P ac. 431.
» M cL ean v . S ta te (1 9 0 9 ), 211 U . S. 5 39, 29 Sup. C t. 2 0 6 ; P eel S p lin t C oal Co. v . S ta te
(1 8 9 2 ), 36 W . V a. 8 02 , 15 S. E. 1000.
si G ibbs v. T a lly (1 9 0 1 ), 133 C alif. 373, 65 P ac. 9 70.
w W a ters o. W o lf (1 8 9 4 ), 162 P a. S t. 153, 29 A tl. 646.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

or changing methods for the collection of debts” (art. 3, sec. 7).
Section 28 of the foregoing act proposed to give subcontractors and
material men a right to an attachment on any sum owed the prin
cipal contractor by the owner or other party indebted to him—a
provision which was held to violate the section of the constitution
noted.53 Section 38 undertook to give a lien on the building alone,
without the land, where it appeared to be to the advantage of the
creditor claimant to have the structure or other improvement sold
alone, this also was held to offend the same provision of the consti
tution.54 A third case affecting this act55 held section 46 invalid
in its attempt to give a lien on the property of a public service
corporation in a form that was practically a personal judgment,
and not merely against the property improved, since it went to
the property of the owner as such, and not simply to that on which
work was expended. The same opinion was expressed, but in a more
general form, in another case,56 in which it was said that the law
attempted to give subcontractors and material men a double remedy,
one in rem and one in personam, against owners and contractors,
which the constitution would not permit. A somewhat later case57
passed upon the constitutionality of a section (13) of the act under
consideration, which gave mechanics’ liens priority over mortgages
for advanced money secured by the property being worked on. It
was found that prior to the constitution of 1874, such priority had
not existed, so that this would effect a change of a nature forbidden
by the section of the constitution already noted; the section was
therefore held invalid.
Laws of Ohio (Ann. Stat., sec. 3184, as amended by act, p. 135,
Acts of 1894), and of Illinois (p. 230, Acts of 1903, sec. 21), and
Michigan (No. 270, Acts of 1887), resembled the act of Pennsylvania
of June 8,1891, in their purpose to give subcontractors certain rights
independent of the contracts made by the contractor. Like that act,
they were found to interfere with the freedom and to impugn the
validity of contracts, contrary to the provisions of the constitution.58*
In the Ohio case cited the supreme court of the State found that
the law attempted to make the contractor the agent of the owner to
enlarge the cost of the work undertaken, enabling laborers and mate
rial men to collect of the owner for services for which he had not him
self contracted, nor had he authorized anyone else to contract for him.
The contractor and the owner, being opposed parties in respect of
their own, it does not lie within the power of the legislature to make
of the contractor an agent of the owner in a matter of conflicting
interests, impairing the obligation of the contracts entered into
between them. In the Michigan case the law was said to be “ a
gross perversion of all the essential rights of property.”
A case involving the constitutionality of the Ohio statute reached
the Supreme Court of the United States, the. decision being rendered
subsequent to the ruling by the Ohio court in the case, Palmer v.
53 V u lc a n ite P o rtla n d C em en t Co. v . A lliso n Co. (1 9 0 8 ), 2 2 0 P a . 3 82, 69 A tl. 855.
84 H en ry T ay lo r L um ber Co. v . C arn egie I n stitu te (1 9 0 9 ), 2 2 5 P a. 4 86 , 74 A tl. 357.
88 V u lc a n ite P a r in g C o. v . T ra n sit Co. (1 9 0 8 ), 2 2 0 P a. 6 03, 6 9 A tl. 111 7 .
56 S ter lin g B ron ze Co. v . Im p rovem en t A ssn . (1 9 1 0 ), 2 2 6 P a. 475, 75 A tl. 668.
87 P a g e v . C art (1 9 1 1 ), 232 P a . 371, 81 A tl. 4 30.
58 P alm er v* T in g le (1 8 9 7 ), 55 O hio S t., 4 23 , 4 5 N . E . 3 1 3 j K elly a. Joh n son (1 9 1 1 ),
2 5 5 111. 135, 95 N . E . 1 0 6 8 ; R itte n h o u se & E m b ree Co. v . W . W rigley, J r., Co. (1 9 1 4 ),
2 6 4 111. 40, 105 N . E . 7 4 3 ; S p ry L um ber Co. v . S a u lt S a v in g s B an k , L oan & T ru st Co.
(1 8 8 9 ), 77 M ich. 199, 4£ N . W . 778.

WAGES.

Tingle, above, though the rights of the parties to the contracts on
which the case was based had been fixed before that decision was
made. This left the Supreme Court free to pass upon the validity
of the law as a matter of independent consideration, though recog
nizing the desirability of accepting (the same views for the sake of
harmonv and to avoid confusion. The case came from the United
States Circuit Court of Appeals,59 which had asserted the right of
a citizen of another State to have his contract construed and enforced
by a Federal court. Since no peculiar provision of the Ohio con
stitution was involved, the question was held to be open to full and
free consideration. It was carefully argued, and many citations
made to support the position that the law was not an undue restraint
of the owner’s liberty of contract, and was “ constitutionally unob
jectionable.” The contributions made by laborers and material men
were for the benefit of the owner, and equity favored his liability.
When the case came to the Supreme Court all the points involved
in jurisdiction and the relative rights of State and Federal courts
were considered; but the phase of the opinion upholding the court
of appeals in its position as to the validity of the law was quite
brief, the decision being based by reference on the “ able and elabo
rate opinion ” of that court which found the provisions of the statute
“ no more onerous than required by the necessity of protecting those
who actually do the work or furnish the material by which the
owner is benefited.” 60 This decision was quite recently cited by the
Supreme Court of Wyoming in an opinion upholding a law of
that State of similar tenor, in which it also said that it was fol
lowing “ the decisions of the courts of last resort of a large majority
of the States where the question has been decided,” sustaining a lien
where material and labor have actually entered into a structure.61
The Minnesota Legislature enacted a lien law (ch. 170, Acts of
1887) which was condemned by the supreme court of that State on
six separate grounds. It was held, first, that a provision making
homesteads subject to liens was invalid, since homesteads can not
be made the subjects of liens in the absence of an agreement between
the parties; secondly, that a provision making a mere failure of a
contractor who has received his pay from the owner to pay his
laborers and material men from such fund, though not guilty of
fraud, a felony punishable by imprisonment, violated that provision
of the State constitution which prohibits imprisonment for debt;
third, that making the fact that the person who performed the labor
or furnished the material was not enjoined by the owner from doing
so conclusive evidence that the service was rendered with his consent
was an attempt to make evidence conclusive which is not so neces
sarily in and of itself, thus precluding a party from showing the
truth and practically depriving of *vested rights without due process
of law. Another invalid provision was one that declared that the
deed of a sheriff after sale under a lien should take precedence over
any other title; also one that assumed to give a mechanic’s lien
precedence over prior encumbrances, the court ruling that liens must
take effect in the order of time, since to hold otherwise would
deprive other creditors of property without their consent. The last
69 J o n es v . G reat S ou th ern F irep ro o f H otel Co. (1 8 9 8 ), 86 F ed. 370, 30 C. C. A. 108.
69 G reat S ou th ern H o te l Co. v . J on es (1 9 0 4 ), 193 U . S. 5 32 , 24 Sup. Ct. 576.
61 B eck er v . H opper (1 9 1 4 ), 22 W yo. 237, 138 P ac. 179.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

ound named for condemning this act was its provision making it
e duty of the courts, where there was doubt as to the construction
of the act, to so construe it as to give a person performing any labor
the full amount of his claim, this provision being pronounced to be
an invasion of the function of the judiciary, to which alone belongs
the right of construing such laws as legislatures may enact.82
It is obvious that there is an irreconcilable conflict between the
two theories that are embodied in some of the foregoing decisions.
The situation with regard to the Ohio Statute is not as clear as
would have been the case otherwise, by reason of the fact that the
parties in the case, Great Southern Hotel Co. v . Jones, had entered
into their agreement and established their apparent rights under
an assumption of the validity of the law which the State supreme
court subsequently invalidated. This raises the question whether
or not the Supreme Court of the United States- would have given
to the claimants the relief sought if it had been shown that the
contract was made subsequent to the construction placed upon the
law applicable to the case by the State supreme court. The fact
remains that a number of courts of last resort have sustained legis
lation of this type.63 The list of decisions rendered under the
Pennsylvania statute is less influential by reason of the peculiar pro
vision of the State constitution restricting legislative power with
regard to “ providing or changing methods for the collection of
debts.” To say the least, this is an expression of a high degree of
concern for the protection of property as contrasted with the pro
tection of the rights of laborers and material men who have under
an apparently valid arrangement increased the value of the prop
erty of the owner without a possibility of guaranteeing the return
of such value to them otherwise than through a recovery secured by
a lien on the property improved.
S

R E STR ICTIO N S ON CONTRACTORS.

Section 506 of the Penal Code of California as amended by Acts
of 1919 (ch. 518) undertook to punish as for embezzlement a con
tractor receiving money on his contract and using it for any other
purpose than that for which it was received. The payment of
laborers and material men was declared by the statute to be the
use and purpose to which the contract price or a part thereof must
be applied. The district court of appeals found this provision un
constitutional as in effect making it a crime for one to use that which
is absolutely his own property according to his own choice and
judgment. The money paid to him on the contract was not a trust
but a payment of that for which he had contracted and which was
legally his.64 This finding parallels the second one noted under the
Minnesota statute above. The supreme court of the State denied
a hearing on the Holder case, thus in effect making the decision of
the court of appeals final. A like law of South Carolina (Cr. Code,
ea M eyer v . B erla n d i (1 8 8 8 ), 39 M inn. 438, 4 0 N. W, 513.
68 L aird v . M oonan (1 8 8 4 ), 32 M inn. 358, 2 0 N . W . 3 5 4 ; B a r d w e ll v . M ann (1 8 9 1 ),
46 M in n . 2 85 , 4 8 N . W . 1 1 2 0 ; H en ry & C oa tsw o rth Co. v . E v a n s (1 8 8 9 ), 9 7 M o. 4 7,
10 S. W . 8 6 8 ; G la ciu s v . B la ck (1 8 7 6 ), 67 N. Y. 5 6 3 ; C ole M fg. Co. v . F a lls (1 8 9 1 ),
9 0 T en n . 4 66 , 16 S. W . 1 0 4 5 ; M a llory v . A b a tto ir Co. ( 1 8 9 1 ), 80 W is. 170, 49 N . W .
1 07 1 , etc.
64 P eop le v. H old er (1 9 2 1 ), — C alif. A pp. — , 199 P ac. 832.

WAGES.

sec. 338), was held valid by the supreme court of that State, as not
contemplating imprisonment for mere failure to pay a debt.65
A Texas statute (R. S. 1911, art. 5623a, added by ch. 143, Acts of
1915) directed the owner of a building to require of his contractor
engaging to do work for him a bond conditioned for the true
and faithful payment of all subcontractors, workmen, material men,
etc. Either the owner or the parties to whom the money was owed
migh sue upon the bond. This was held to be a compulsory con
tract, beyond the power of the legislature to require, “ because of
its interference with the law of the liberty of contract.” 66 The
supreme court of the State refused a writ of error in this case, and
later itself held the act void.67
SUITS— A T T O R N E Y S ’ F E E S.

Suits for wages have been made the subject of legislation with the
intention pf giving special privileges to a class of small claimants on
whom the costs and delays of legal procedure are supposed to be
unduly burdensome. Thus in connection with the enforcement of
mechanics’ liens, a provision has frequently been incorporated giving
to lien claimants an award of a limited sum for attorneys’ fees in t
cases where they establish their claim. Such laws are found in Illi- ’
nois (Revised Statutes (1905), ch. 82, sec. 31); Colorado (Acts of
1893, ch. 117, sec. 18); Utah (Revised Statutes, sec. 1400); Kansas
(General Statutes, sec. 5125); Alabama (Acts of 1890-91, p . 578, sec.
2); California (Code of Civil Procedure, sec. 1195) ; Wyoming
(Code 1910, sec. 3799); Florida (Gen. Stat. 1906, sec. 2218); Mon
tana (R. C., sec. 7166), etc.
In each of the States named the courts of last resort (a Federal
court in Florida) have condemned the provisions as being unlawful
discriminations in favor of certain-suitors who are not distinguish
able from other litigants on any proper basis, the laws being, there
fore, subject to condemnation as special or class legislation. Inas
much also as the rights are not reciprocal, a defendant property
holder is subjected to the liability of a compulsory payment of addi
tional costs without the privilege of recovering like costs in case of
its successful defense, in conflict with the fourteenth amendment
of the Federal Constitution.68
In a somewhat later case-the Supreme Court of California was
called upon to reexamine the position taken in the case of Builders’
Supply Depot v. O’Connor, but expressed the view that the question
had been settled in that State, “ though differences of opinion might
reasonably exist.” 69 Indeed such provisions have been held con
stitutional.70
S ta te v. H ertzo g (1 9 1 2 ), 92 S. C. 14, 75 S. E. 374.
66 H ess v. D en m an L um ber Co. (T ex. C iv. A pp., 1 9 2 0 ), 218 S. W . 162.
67 W illiam s v. B ald w in ( 1 9 2 1 ) , T e x .— ,2 2 8 S. W . 5 5 4 ; see also W right v. M cA dam s
Lum ber Co. (T ex . Com . A pp., 1 9 2 1 ), 234 S. W . 8 7 8 ; E q u itab le S u rety Co. v . S tem m on s
(T ex. C iv. A pp., 1 9 2 2 ), 239 S. W . 1037.
68 R an d olp h v. B u ild e rs’ and P a in te r s’ Supply Co. (1 8 9 5 ), 106 A la. 5 01, 17 So. 7 2 1 ;
B u ild e rs’ S u pp ly D ep o t v. O’C onnor (1 9 0 7 ), 150 C alif. 2 65, 88 P ac. 9 8 2 ; D a v id so n v.
J en n in g s (1 9 0 0 ), 27 Colo. 187, 60 P ac. 3 5 4 ; M anow sky v . S tep h an (1 9 0 8 ), 233 111. 409,
8 4 N . E. 3 6 5 ; A tk in so n v. W ood m an see (1 9 0 3 ), 6 8 K an s. 71, 74 P ac. 6 4 0 ; B ru b aker v .
B e n n e tt (1 8 9 9 ), 19 U ta h 4 01, 57 P ac. 1 7 0 ; B eck er v . H op p er (1 9 1 4 ), 22 W yo. 2 3 7 . 1 3 8
P ac. 1 7 9 ; M ills v. O lsen (1 9 1 1 ), 43 M ont. 129, 115 P ac. 8 3 ; U n io n T erm in al Co. v.
T u rn er C onst. Co. (F la . S ta t.) (1 9 1 8 ), 2 47 F ed. 727, 159 C, C. A . 585.
68 M erced L u m b er Co. v, B r u sc h i ( 1 9 0 7 ) , 1 5 2 C a lif. 3 7 2 , 9 2 P a c . 8 4 4 .
TO S ch m oll v . L u ch t (1 9 0 8 ), 1 06 Minn. 188, 118 N. W . 555.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

Specific faults found with the laws of Florida and Montana were
that the first allowed the attorney’s fee whether the claimant recov
ered the full amount claimed or not; while that of Montana protected
not only laborers and mechanics, for .which there might be found
special justification, but it affected contractors and material men as
well, to whom even such reasons would not apply. Where the law
provides a fee for the successful litigant, whether plaintiff or defend
ant, it can not be condemned as class legislation.71
The laws considered above have dealt with attorneys’ fees
in mechanics’ lien cases. Laws of a more general type, giving
the privilege of recovering attorneys’ fees in suits for wages gener
ally have been enacted in various States. Laws of this latter type
in Michigan (Acts of 1887, No. 147); Mississippi (ch. 141, Acts
of 1912); Ohio (Revised Statutes, sec. 6563a); Oklahoma (Acts of
1895, ch. 51), and Texas (Act of April 5, 1889), have been held
unconstitutional on the same basis of unequal treatment as noted
above.72 The situation in regard to the Texas law is of special
interest, the State courts throughout having sustained the validity
of the law.73 The case then came to the Supreme Court of the
United States* where the courts below were reversed and the law
, held unconstitutional.74 The statute authorized the collection of
an attorney’s fee where there was found to be a valid claim against
a railroad company for personal services rendered or labor done,
for stock killed or injured by the train of a railroad company, etc.
The particular case was not of wages, but of damages for the killing
of livestock, but the principle involved is identical, and many of the
cases cited under the heading “ Actions to recover wage debts”
have given the decision of the court in this case as authority for
declaring the laws under consideration unconstitutional. As a mat
ter of fact, the finding of unconstitutionality was based on the special
burden cast upon railroads and upon no other corporation or em
ployer. This is clearly brought out in the decision by the Supreme
Court in a case involving the same principle, but of more general
application. Following the declaration of unconstitutionality in
1897 the Legislature oi Texas in 1909 passed a law which became
articles 2178 and 2179 of the Revised Civil Statutes of 1911. This
applied to claims for personal services or labor rendered or ma
terial furnished, or to damages for stock killed or injured, etc.,
“ against any person or corporation doing business in this State.”
The law is limited to claims not exceeding $200, and the attorney’s
fee may not exceed $20. The court of civil appeals of the State
had declared the act invalid under the State constitution.75 Accept
ing this decision as controlling, the Supreme Court of the United
States reversed a judgment that included an attorney’s fee, the
question of whether the act contravened the fourteenth amendment
not being decided.76 Subsequently a case under the act came to
the Supreme Court of Texas, which overruled the decision of the
^ 71 G race H arb or L um ber Co. v . O rtm au (1 9 1 6 ), 1 90 M ich. 4 29 , 157 N . W . 96 (co n
str u in g M id i. C. L ., 1897, sec. 1 0 7 2 1 ).
72 G ran d R ap id s C hair Co. v . R em ells (1 8 8 9 ) 7 7 M ich. 104, 43 N . W . 1 0 0 6 ; Sorenson
v . W ebb (1 9 1 6 ), 1 1 1 M is8. 8 7 , 7 1 So. 2 7 3 ; C oal Co. v . R osser (1 8 9 5 ), 53 O hio S ta te 12,
41 N ..B . 2 6 3 r C hicago, e tc ., R . C o. v . M ash ore (1 9 0 8 ), 21 O kla. 2 75, 96 P ac. 630.
72 G u lf, C olorad o & S. F . R . Co. v. E llis ( 1 8 9 4 ), 87 T ax. 19, 2 6 S. W . 9 85 .
74 G u lf, C olorad o & S. F . R. Co. v. E llis (1 8 9 7 ), 165 U . S. 150, 17 Sup. C t. 255.
75 F o r t W orth a n d D . C. R . Oo. v. L oyd (1 9 1 0 ), 6 3 T ex. C iv. A pp. 4 7, 132 S. W . 899.
78 G u lf, C olorad o & S. F . R. Co. v. D en n is (1 9 1 2 ), 2 2 4 U . S. 5 0 3 , 3 2 Sup. C t. 542.

WAGES.

court of civil appeals and held the law valid under the Texas con
stitution. 77
In another case there was a writ of error to the Supreme Court
direct from the justice court of Dallas County, Tex., involving
the question of the constitutionality of the act of 1909 under the
Federal Constitution, this question not having been heretofore
decided in either a State or Federal court. There was a wage
claim, which was found proper, and judgment was awarded therefor,
together with an attorney’s fee. The court found the statute a
reasonable one, of general application, and “ designed to promote
the prompt payment of small claims and discourage unnecessary liti
gation in respect to them.” The imposition of an attorney’s fee is
not in the nature of a penalty, but “ only compensatory damages
upon a defendant who, in the judgment of the legislature, unreason
ably delays and resists payment of a just demand,” resting on the
same principle as the allowance of ordinary cost of suit to the pre
vailing party.78 State courts have sustained similar laws.79
The Legislature of Michigan enacted two laws of somewhat the
same nature as the above (Howell’s Annotated Statutes, sec. 7317,
and Acts of 1885, No. 14) which were declared unconstitutional by
the supreme court of that State. The first of these provided that
in actions for wages or earnings payable for services performed by
any individual or company* after action had been begun in the
county wherein the work was done or the plaintiff or plaintiffs reside,
the process or declaration might be served in any adjoining county
of the State. This was held to be class legislation, since it applied
only where services were rendered by individuals or companies, ex
cluding corporations from its benefits; secondly, it allowed jurisdic
tion of a justice of the peace to be extended for certain classes of
claims, denying this privilege to others.80 The second law related
to exemptions from judgments in cases of execution for claims for
labor. General legislation provided certain exemptions in ordinary
cases of execution, and it was attempted by this act to greatly restrict
the list of property which would be exempt where the judgment was
for a wage debt. This act also was condemned as special legisla
tion.81 In contrast with such a finding may be noted a law of
Illinois (ch. 52, E. S. 1906, sec. 16) and a provision of the constitu
tion of Minnesota (art. 1, sec. 12; see also G. S. 1913, sec. 6957),
which leave liable to seizure and sale all personal property of a wage
debtor.82
G A R N IS H M E N T , ASSIGNM ENTS, AND E X E M P T IO N OE SAL A R IES AND
W AGES.

A statute of the State of Illinois subjecting to garnishment the
wages of employees of counties, cities, villages, school districts,
and departments of either (Acts of 1905, p. 285) was declared
unconstitutional as class legislation, since it discriminated between
M issou ri K. & T . R. Co. v . M ahaffey (1 9 1 2 ), 105 T ex. 394, 150 S. W . 881.
w M issou ri, K . & T . R. Co. v . C ade (1 9 1 4 ), 233 U . S. 642, 34 Sup. C t. 678.
T itle G u aran tee & T ru st Co. v . W renn (1 8 9 9 ), 35 O reg. 62, 56 P ac. 2 7 1 ; S inger
M fg. Co. v , F lem in g (1 8 9 4 ),, 39 Nefor. 679, 58 N. W . 2 2 6 ; V ogel v . P ek o e (1 8 9 5 ), 157
111. 339, 42 N . E . 3 8 6 ; C oal Co. v . M cG lossoai (1 9 0 6 ), 166 Ind. 561, 77 N. E . 1044.
«o O’C on n ell v . L um ber Co. (1 8 9 7 ), 113 M ich. 124, 71 N . W . 449.
81 B u rrow s v . B rook s (1 8 9 7 ), 113 M ich. 307, 71 N . W . 460.
83
S m ith v . K e n n e tt (1 9 0 1 ), 94 111. App. 3 3 1 ; L indberg v . P ete rso n (1 9 0 4 ), 93 M inn.
267, 101 N . W . 74.
77

11934°—22----- 1

LABOR LAWS DECLARED UNCONSTITUTIONAL.

the employees of designated classes of municipalities and those of
other municipalities.83
Assignments of salaries and wages were regulated by an act of
the Legislature of Illinois (Act of May 13, 1905), the law requiring
compliance with certain formalities, such as acknowledgment before
a justice of the peace, entry on his docket, service of notice on the
employer, and joint signature by the husband or wife of a married
assignor. The law also declared assignments tainted with usury
invalid. This act was held to be unconstitutional, as interfering
with the right to labor and to dispose of the compensation received
therefor. The question was raised, but not answered, whether or
not if the law applied to wages only it might stand, two judges
holding that even so it would be invaiid. As covering both salaries
and wages, however, it was held not to be a proper exercise of
the police power; while it was said to be unconstitutional also in
its discrimination against •usurious contracts of this particular sort,
other usurious contracts being not so dealt with.84 Persons en
gaged in the business of purchasing assignments of unearned wages
were taxed by a law of Texas (Acts of 1905, ch. 111). This law,
too, was held to be discriminatory and in restraint of the freedom
of trade guaranteed by the Federal Constitution.85
Several States have laws intended to conserve the rights of resi
dent laborers under the laws of the State by forbidding holders of
claims against a laborer to send their claims outside the State for
the purpose of bringing action under laws less favorable'to the de
fendant than are those of the State of his residence. A law of this
nature (Missouri Eevised Statutes, sec. 2356) was said to discrimi
nate between wage earners and other debtors and between residents
of Missouri and other creditors. The statute was also condemned
as an attempt at extrastate legislation and an infringement on the
equal rights of citizens of different States.86
A Minnesota statute (ch. 375, Acts of 1913) exempted from at
tachment or other seizure the wages of any person not exceeding
$35 due for services rendered during the 30 days preceding the issue
of the writ, but with the proviso that if the action is for the recovery
of the purchase price of necessaries, and $35 or more has been paid
on earnings during such 30-day period no exemption will be allowed
except the $35'theretofore paid. This proviso was held to violate the
general terms of article 1, section 12 of the State constitution as dis
criminating in favor of a certain class of debts, and was for this rea
son held void.87
T IM E OF P A Y M E N T OF W A G E S ,

Laws regulating the time of the payment of wages have been sus
tained in a number of jurisdictions, while in others they have been
regarded as interfering with the right of private contract. Thus
an Indiana statute (act of February 28, 1899), which provided that
every employer of labor should make weekly payments for the full
amount due for such labor and authorized the chief factory inspector
or any person interested to bring suit in the name of the State
against any employer who failed to comply with the law within
83 B ad en och v . C ity o f C hicago (1 9 0 6 ), 222 111. 71, 78 N . E . 31.
84 M a ssie v. C essn a (1 9 0 9 ), 2 39 111. 352, 88 N . E. 152.
85 O w en s v . S ta te (1 9 0 8 ), 53 T ex. C rim . A pp. 105, 112 S. W . 1075.
86 In re F lu k es (1 9 0 0 ), 157 M o. 125, 57 S. W . 545.

WAGES.

10 days after the wages were due, was declared not to be within
the police power of the State. It was said to fix an absolute rule to
govern the employer and employee, regardless of their wishes, from
which they could not depart without incurring a penalty. It was
therefore condemned as depriving of their property the persons
affected without due process of law.8788 A law of Pennsylvania (act
of May 20, 1891), which required all employers engaged in mining
and manufacturing to pay their workmen semimonthly, under pen
alty of fine for failure to do so, was held to impair the obligation of
contracts, to interfere with the right to acquire and possess property,
and to violate the provision of the State constitution which prohibits
local or special laws regulating trade, mining, or manufacturing.89
An earlier law of Pennsylvania (act of June 29,1881) regulating the
time of payment of wages and also the medium of payment had been
similarly held unconstitutional as special legislation.90
A similar view was taken of a Maryland local law (ch. 211, Acts
of 1910, amending ch. 37, Acts of 1904). The earlier law required
corporations engaged in mining in Garrett County to pay their em
ployees semimonthly, the amendment extending the law to include
individual mine owners as well. This act was held to be an unreason
able discrimination against particular classes of employers, i. e.,
mine operators,«interfering with their rights of contract, while
others in similar situations were left free. It was therefore declared
invalid.91
The weekly-payment law of Illinois (act of July 23, 1891) pro
vided for the payment of all wages earned up to within six days of
pay day. This law was declared void for the same reason given
above in the case of the Indiana statute.92 So also a law of Ohio
(Annotated Statutes, sec. 4364-63, 88 O. L. 553) which contained
the added fault of an application only to certain classes of employ
ers.93 The law of Indiana (Annotated Statutes of 1901, secs. 7056,
7057) proposing a monthly pay day for the manual laborers em
ployed by companies, corporations, and associations was declared
invalid as imposing on the designated classes of employers burdens
not imposed on individual employers, and also- as discriminating
between manual laborers and other employees.94
An added feature was involved in a Michigan statute which fixed
a semimonthly pay day, providing also that employees discharged
or leaving service should be paid the full amount due them at the
next succeeding pay day, which failing, a penalty of 10 per cent
per day on the wages due should be allowed as “ liquidated dam
ages” (No. 59, Acts of 1913). In a case involving the application
of this law the supreme court of this State held it unconstitutional,
both because the title did not express the contents of the act in re
spect of the item of liquidated damages, and also because the statute
“ constitutes class legislation of the most objectionable kind,” the
87 B offerd in g v . M engelkoch (1 9 1 5 ), 129 M inn. 184, 152 N . W. 135.
88 R ep u b lic Iron & S tee l Co. v . S ta te (1 9 0 3 ), 160 Ind. 379, 66 N. E. 1005.
» Com . v . Isen b erg (1 8 9 5 ), 8 K ulp 116, 4 P a. D ist. R. 579.
90 G od ch arles v . W igem an (1 8 8 6 ), 113 P a. St. 431, 6 A tl. 354.
81 S ta te v . P oto m a c V alley C oal Co. (1 9 1 1 ), 116 Md. 380, 81 A tl. 686.
82 B ra c ev ille C oal Co. v . P eop le (1 8 0 3 ), 1 47 111. 66, 35 N . E. 62.
88 S ta te v . L ake E rie Iron Co., 33 O. L. B . 6, 1 O. S. U . 2 5 4 ; affirm ed by th e suprem e
cou rt w ith o u t o p in io n ; s e e (1 8 9 6 ) 55 O hio S t. 4 23 (4 4 2 ), 45 N . E. 3 1 3 (3 1 5 ).
84T oled o, etc., R. Co. v . L on g (1 9 0 7 ), 169 In d. 316, 82 N . E. 757.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

penalty imposed being “ confiscatory and unreasonable.” This pro
vision was therefore declared invalid.95
A different fault from any of those noted above was found in a
Tennessee statute (ch. 29, first extra session, 1913). This required
a semimonthly payment of wages with penalty of a fine as for a
misdemeanor in cases of noncompliance with the act. While im
prisonment was not in terms provided to be imposed, the court
ruled that a failure to pay the fine would lead to imprisonment by
operation of law, the result being imprisonment for debt in violation
of the constitution of the State, so that the act must fall as uncon
stitutional. 96
The Legislature of California in two distinct acts attempted to
confer upon wage workers certain privileges and securities that
were held by the courts to contravene the provisions of the consti
tution. Thus an act (ch. 146, Acts of 1891) which gave a preferred
lien in case of the failure to pay weekly or monthly the wages earned
by and due to mechanics and laborers was construed by the supreme
court as giving rise to a lien in favor of those mechanics who are
employed by the week or month and not furnishing the same pro
tection for those otherwise employed, thus attempting an arbitrary
classification.97 A somewhat later law (ch. 170, Acte of 1897) re
quired every corporation doing business in the State to pay wages
to its employees at least monthly, failing which the employee had
a preferred lien, and on securing judgment was entitled to a reason
able attorney’s iee. Delinquent corporations were also subject to a
fine of not less than $50 nor more than $100 for each violation. This
act was held unconstitutional as discriminating against corporations
as .compared with other employers, ^as giving a special lien upon
all the property of a corporation without requiring description or
notice, as giving a laborer the right to an attachment without making
the affidavit and filing the undertaking required of other suitors, as
giving to a single class of claimants the right to recover attorney’s
fees under a special statute, as restricting the right of competent
parties to make their own contracts as to terms and times of pay
ment, and as punishing by fine arbitrarily fixed any variation from
the prescribed rule.98
Contrasted with this decision by the supreme court of the State
is a contemporaneous one by the United States Circuit Court, con
struing the same law and holding it to be constitutional, neither dis
criminatory nor depriving the employer of his property without
due process of law.99
Attention has already been called to a statute of Michigan which
penalized failure to pay wages at the termination of the employment
relations. Several States have enacted laws on this specific point,*
directing the payment at time of discharge without waiting for the
arrival of thfe customary pay day, penalizing the failure so to do
by either continuing full wages or a percentage thereof until'pay
ment or tender of wages. A law of Louisiana of this nature (No.856*9
85 D av id ow v . W ad sw orth M fg. Co. (1 9 2 0 ), 211 M ich. 90, 178 N . W . 776.
86 S ta te v . P ru d en tia l C oal Co. (1 9 1 4 ), 130 T enn. 2 75, 1 70 S. W. 56.
S locu m v . B ear V alley Irr ig a tio n Co. (1 8 9 8 ), 122 C alif. 5 55, 55 P ac. 4 03 .
88 Joh n son v . G oodyear M in in g Co. (1 8 9 9 ), 127 C alif. 4, 59 P ac. 304.
89 S k in n er v . G arn ett G old M in in g Co. (1 8 9 9 ), 96 F ed . 735.

WAGES.

170, Acts of 1914) was declared unconstitutional for the technical
reason that the title and text of the act disagreed.1
An act of the Arkansas Legislature (act of Mar. 25, 1899), like
that of Louisiana noted above, called for the continuing of full
wages. This act was held by the Supreme Court of Arkansas to be
an invasion of the constitutional rights of natural persons, and so
far invalid, but was construed as a valid exercise of the power of the
State with reference to corporations.2 A law of the same State
relating specifically to railroads requires the payment of any wages
due within seven days after the discharge of an employee (sec. 6649,
Kirby’s Digest, amended by ch. 210, Acts of 1905). The constitu
tionality of this law was assumed in a case that carnet before the
Supreme Court of the United States, which involved a wage debt
of the Director General of Railroads in control of the Missouri
Pacific Railroad under the railroad administration established by
the President of the United States during the war. A judgment
for debt, and penalty had been affirmed in the Supreme Court of
Arkansas.3 The case came to the Supreme Court of the United
States, not on a contest as to the wage debt, but as to the application
of the penal provision to the Federal agent. The penal provision
of the act was found not applicable to the case in hand, since “ the
purpose for which the Government permitted itself to be sued was
compensation, not punishment.” 4
A Texas statute of this nature (Acts of 1887, ch. 91), applicable
only to discharged railroad employees, was declared invalid as
not protecting equally the interests of the employer and employee; 5
also as depriving railroad companies of their property without
due process of law.6 A similar finding was made with regard to
an Indiana statute restricted to railroad service (sec. 2686c, Burns
A. S. 1914). The supreme court of the State found no relation
between the requirement of the law and the nature of the business
of common carrier or the hazards peculiar to railroads. In brief,
no good reason appeared for such discriminatory legislation, and
no basis for classification relieving it from the charge of arbitrari
ness, and it was declared void.7
A California statute on this subject (ch. 663, Acts of 1911) was
declared unconstitutional in a ease before the State court of appeals
for the first district as subjecting the debtor to imprisonment for
debt, contrary to the provision of the State constitution on this sub
ject—the same objection that was found to the Tennessee statute
noted above. As in that case, the law itself did not provide for
imprisonment, but attempts to enforce it actually resulted in the
temporary imprisonment of the debtor, the primary ground for which
was found to be his unwillingness or perhaps inability to discharge a
debt which was not conceived or contracted in fraud of his creditor.8
Another case under the same act later came before a court of appeal,
the act in the meantime having been amended (Acts of 1915, ch. 143),
though not in any apparent attempt to avoid the fault found with the
1 B ran n on v . P a rson s (1 9 1 9 ), 144 L a. 295, 80 So. 542.
L eep v. St. L ou is, etc., R. Co. (1 8 9 4 ), 58 A rk. 407, 25 S. W. 75.
a M o. P ac. R. Co. v . A u lt (1 9 1 9 ), 140 A rk. 572, 2 16 S. W. 3.
4 M o. P ac. R. Co. v . A u lt (1 9 2 1 ), 256 U . S. 554, 41 Sup. Ct. 593.
• S an A n to n io & A . P . R. Co. v W ilson . (1 8 9 2 ) (T ex. C iv. A p p .), 19 S. W. 910.
6 Mo.,, K . & T. R. Co. v . B rad d y (1 9 1 1 ) (T ex . C iv. A p p .), 135 S. W . 1059.
^ C levelan d C. C. & S t. L. R. Co. v . Scjauler (1 9 1 4 ), 182 Ind. 5 7, 105 N . E . 567.
• E x p arte C rane (1 9 1 4 ), 2 6 C alif. A pp. 22, 145 P ac. 733.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

law in its earlier form, unless perhaps the stress on willful refusal or
false denial with intent to secure a discount be construed as meeting
the case. However, the statute in its amended form was held to be
constitutional, no reference being made to the matter of imprison
ment. 9 In a third case before a court of appeal the contention was
made that while the act might be valid as to corporations it could
not control the acts of individuals. This contention was rejected.10
P A Y M E N T OP W A G E S IN SCRIP, STORE ORDERS, ETC.

The practice of issuing scrip or tokens as a medium of payment,
or the maintenance of company stores on which orders are issued has
been regulated or prohibited by laws of a number of States. Con
flicting decisions exist as to the constitutionality of laws of this
type, the form of legislation being condemned in some cases, while
in others the entire subject would seem to be regarded as beyond
legislative control. On the other hand, such laws have been held
constitutional.
Certain acts of the Legislature of Arkansas (No. 161, Acts of
1901, and No. 143, Acts of 1905) were declared improperly discrim
inatory and therefore unconstitutional because they exempted from
their application mines employing fewer than 20 men.11 A Missouri
statute (Rev. Stat. of 1889, secs. 7058, 7060) was declared uncon
stitutional as class legislation, since it applied only to employers
engaged in manufacturing or mining;12 while another statute of
the same State (secs. 8142, 8143) which prohibited the issue of any
order, note, check, memorandum, token, evidence of indebtedness,
or other obligation, unless the same was negotiable and redeemable
at its face value in money of the United States, was held to be uncon
stitutional on the broad ground that it interfered with the freedom of
contract.13 The same view was taken of the law of Pennsylvania
(act of June 29, 1881), which provided that wages should be paid
only in lawful money and at regular intervals;14 so of the law of
Texas (Acts of 1905, ch. 152) which prohibited the payment of
wages in store orders or merchandise.15 The Supreme Court of
Tennessee held that a law of that State (ch. 209, Acts of 1887)
which provided that persons refusing to redeem in lawful currency
any checks or scrip issued in payment of wages should be guilty of a
misdemeanor and liable to fine, violated the spirit if not the letter
of the provisions of the constitution which prohibit laws authorizing
imprisonment for debt.16 The court of last resort of West Virginia
declared the scrip law of that State (Acts of 1887, ch. 63) uncon
stitutional as special legislation, because it applied only to persons
engaged in mining and manufacturing.17 The same law contained
a provision as to employers within its scope who were interested
also in the selling of merchandise and supplies, forbidding them
to sell goods to their employees at a greater per cent of profit than
9 M oore v . In d ia n S p rin g C hannel G old M in in g Co. ( 1 0 1 8 ), 37 C alif. A p p . 370, 174
,c. 378.
10 M an ford v . M em il S in gh (1 9 1 9 ), 40 C alif. A pp. 700, 181 P ac. 844.
^ U n io n S aw m ill Co. v . F clse n th a l (1 9 0 8 ), 84 A rk. 4 9 4 , 10S S. W . 217.
M S ta te v . L oom is (1 8 9 3 ), 115 M o. 3 07 , 22 S. W . 350.
18 L each v . M issou ri T ie & T im ber Co. (1 9 0 5 ), 1 11 M o. A pp. 6 50 , 86 S. W . 579 ; S ta te
Sam e (1904), 1S1 M o. 536, 80 S. W . 933.
14 G od ch arles v . W igem an (1 8 8 6 ), 113 P a. S t. 4 31 , 6 A tl. 3 54.
16 J ord a n v . S ta te (1 9 0 7 ), 51 T ex. C riin. App. 5 3 1 , 1 03 S. W . 6 33 .
14 S ta te v . P a in t R ock C oal & C oke Co. (1 8 9 2 ), 9 2 T en n . 8 1, 20 S. W . 4 9 9 .
17 S ta te v . G ood w ill (1 8 8 9 ), 33 W . V a. 179, 1 0 S. E . 285.

WAGES.

.that at which they sold to persons not employees. This provision
was held to interfere unjustly with private contracts and business,
since a seller might consider various facts in determining the price
charged for his goods, and should be free to do so.18
A bi]J[ before the Colorado Legislature in 1897 proposed to prohibit
employers who paid the wages of their employees in goods or supplies
of any kind, directly or through the intervention of scrip or orders,
from charging higher prices than the reasonable or current market
value in cash of such goods or supplies. This bill was laid before the
supreme court of the State, which held that this provision unwarrantedly undertook to regulate prices, and would not be valid as
legislation.19
Defective classification was declared fatal to a portion of an Illi
nois statute (p. 212, Acts of 1891), which provided that no deduc
tions from wages should be made by any employer of labor except
for lawful money or checks or drafts actually advanced without dis
count and excepting also agreed sums for hospital fees, but ex
empting farmers and farm laborers from its provisions.20 The act
was also said to interfere in an unauthorized manner with the priv
ilege of contracting. Other sections of this act had already been
before the court in a case involving provisions relating to company
stores. These forbade persons, companies, corporations or associations
engaged in mining or manufacturing to be interested directly or
indirectly in truck or supply stores, or in any scheme to supply tools,
clothing, provision, etc., to employees, but do not include other
classes of employers under such restrictions; they also were declared
unconstitutional on account of such discrimination.21
The Maryland statute (ch. 493, Acts of 1898), which prohibited
railroad and mining corporations in Allegany County, their officers
and agents, from selling or bartering goods, wares, or merchandise
to their employees was declared void because of its violation of
the equal-protection clause of the fourteenth amendment.22
An act of the Ohio Legislature (act of February 8, 1887) pro
hibited the issue of checks, scrip, tokens, etc., purporting to be re
deemable otherwise than in money, but permitted orders* to be issued
on stores in which the employer had no interest. This law, too, was
declared unconstitutional because discriminatory.23
Chapter 145, Acts of 1897, of the Kansas Legislature forbade em
ployers to issue in payment for work done any check, order, or token,
other than a check or draft on a bank in which money was on deposit
to cash the same. It also made it an offense to compel or attempt to
compel the employees of a corporation or trust to purchase goods or
supplies at any particular store or place; and finally restricted the
application of the law to corporations or trusts employing 10 or
more persons. It was held that the discriminations between cor
porations on the one hand and other classes of employers on the
other, and secondly, between corporations and trusts employing 10
or more men and those employing a smaller number, were arbitrary
18 S ta te v . F ire C reek C oal & C oke Co. (1 8 8 9 ), 33 W . V a. 188, 10 S. E. 288.
19 In re H ou se B ill No. 147 (P a y m e n t o f Wages in S crip ) (1 8 9 7 ), 23 C olo. 504, 48
C oal Co. v. H arrier (1 9 0 4 ), 207 111. 624, 69 N. E . 927.
21 F rorer v . P eop le (1 8 9 2 ), 141 111. 171, 31 N. E. 395.
23L um an v . H itc h en s B ros. Co. (1 8 9 9 ), 90 Md. 14, 44 A tl. 1051.
22 M arsh v . P o sto n & C o., 35 O. L. B . 3 2 7 ; affirm ed w ith o u t o p in io n (1 8 9 6 ), 54 O hio
S t. 681, 47 N. E. 1114.

Pac.
512.
29 K e lly v ille

LABOR LAWS DECLARED UNCONSTITUTIONAL.

and unequal. It was also said that the interference with the right
of persons competent to contract in their own behalf was an unwar
ranted violation of their constitutional rights.24
A Tennessee statute (ch. 208, Acts of 1887) prohibited any jointstock company, association, or corporation from discharging or
threatening to discharge any of its employees or workmen for trad
ing or dealing or for not trading or dealing with any particular
merchant, person, or class of persons. This was said to be “ arbi
trary and vicious class legislation,” setting one group of employers
over against another, not on a natural and reasonable basis, but by
an arbitrary distinction which was discriminatory and void.25 An
act of the Indiana Legislature (Acts of 1901, p. 548) provided that
whenever any merchant or dealer in goods or merchandise, or any
other person (the words “.any other person55 not being contained in
the title), should take from any employee or laborer for wages who
labors in or about any coal mine an assignment of such employee’s
wages, and give in return therefor any order or check other than a
check on a solvent bank, or any token or device redeemable in mer
chandise or anything else than lawful money of the United States,
such checks or tokens should at once become due and payable in cash
to the full amount of their face. This law was declared void as
special legislation, the title restricting its application to merchants
on the one hand and employees in or about coal mines on the other,
disqualifying these classes to deal as other citizens may.26
As already stated, statutes embodying the main principles con
sidered in the above cases have been sustained as constitutional.27
The Tennessee statute in question in the case, Iron Co. v. Harbison
(Acts of 1899, ch. 11) avoided the fault of discrimination by apply
ing to “ all persons, firms, corporations, and companies,” and re
quired that where use was made of coupons, store orders, etc., for
payment of laborers and employees, redemption should be “ in good
and lawful money of the United States ” in .the hands of such laborer,
employee, or bona fide holder. The validity of this law had been
contested in the State courts, and there upheld, the Supreme Court
referring to the opinion of the supreme court of the State as so full
and satisfactory that it was not necessary to extend the discussion.
In that opinion it was said that the act “ is neither prohibitory nor
penal; not special, but general; tending toward equality between
employer and employee in the matter of wages; intending and well
calculated to promote peace and good order,” and as such is a whole
some regulation adopted in the proper exercise of the police power
of the State.
In the same case (Union Sawmill Co. v. Felsenthal) in which the
Supreme Court of Arkansas declared certain acts of the legislature
of that State unconstitutional, it sustained the validity of an earlier
law (Acts of 1901, p. 167) which regulated the issue of coupons,
scrip, etc., by employer corporations in the State. The apt was sus
tained as valid with respect to such employers, distinguishing them
2* S ta te v . H au n (1 8 9 9 ), 61 K an s. 146. 59 R ac. 340
^
85 S ta te v . N a sh v ille , etc., R. Co. (1 9 1 1 ), 1£4 T en n . 1, 134 S. W . 773.
26 D ix o n v . P o e (1 9 0 2 ), 159 In d. 4 92 , 65 N . E . 518.
27 C um berland G la ss M fg. Co. v . S ta te (1 8 9 5 ), 58 N . J. L. 2 24 , 33 A tl. 2 1 0 ; K n o x v ille
Iro n Co. v . H arb ison (1 9 0 2 ), 183 U . S. 13, 22 Sup. C t. 1 ; Joh n son , L y tle & Co. v . S p artan
M ills (1 9 0 4 ), 68 S. C. 339, 4 7 S. E . 6 9 5 ; U n io n S a w m ill Co. v . F e lse n th a l (1 9 0 8 ), 84 A rk.
4 94 , 108 S. W . 2 1 7 ; S h ortaU v . B rid g e, etc., Co. (1 9 0 7 ), 45 W ash. 2 9 0 , 88 P ac. 2 1 2 ; P eel
S p lin t C oal Co. v. S ta te (1 8 9 2 ), 3 6 W . V a. 8 0 2 , 15 S. E . 1000.

HOURS OF LABOR.

from individuals, on the ground that corporations derived their right
to contract from the legislature, and while it can not take away this
right, it can regulate it when the interests of the public demand it.
The purported repeal of this act by the later legislation was, of
course, ineffective as being unconstitutional and therefore void ab
initio. Another act (No. 315, Acts of 1907) is similar to the con
demned acts, and is doubtless also void.
HOURS OF LABOR.

Statutes regulating the hours of labor have been enacted in a num
ber of States, some affecting public employment only, others relat
ing to designated classes of employment, and still others embracing
within their scope labor generally. Laws of the first and second
classes usually attempt the restriction of the period of labor to that
named in the law, while in the third class the effect of the law is
generally simply to declare what shall constitute a day’s work in
the absence of contract, but not preventing contracts for a different
working-day.
PUBLIC W O R K S .

It is well established as a matter of general acceptance at the
present time that it is competent for the legislature to fix the hoursof labor that shall constitute a day’s work in public service of what
ever class,28 though the courts of last resort of a few States have
denied this power. Thus the laws of New York (sec. 3, ch. 415,
Acts of 1897), and of Ohio (Annotated Statutes, secs. 4364-62a
to 62d), limiting to eight per day the number of hours to be required
of laborers on public works, whether employed by a contractor or
otherwise,’ w'ere declared void in their relation to contractors as
not being within the police power of the State, since they interfered
with the right of municipal corporations to contract in matters con
cerning their own interests, over which the State was not entitled
to exercise supervision, and also attempted to regulate the conduct
of contractors in matters affecting them and their workmen, in which
the State was not concerned.29 These courts held that in the mak
ing of its contracts the municipality was exercising private rights
as the agent of its citizens and was not subject to discriminatory
State control. The contrary view is held in the cases cited in note
28 above, in which it was held that municipal corporations are the
creations of the State and mere political subdivisions thereof, with
only such powers as the State allows, which are also subject to re
striction or enlargement at the will of the creating power; if a con
tractor wishes to do business with the State or any of its subordi
nate agencies, he may not dictate on what terms he will act, but
must accept whatever terms the State offers or refrain from such
employment.
Following the decisions declaring the eight-hour law of the State
unconstitutional the constitution of New York was amended to*20
28 A tk in v . K an sa s (1 9 0 3 ), 191 U. S. 218, 24 Sup. C t. 1 2 4 ; P eo p le ex rel. W illia m s
E . & C. Co. v . M etz (1 9 0 8 ), 193 N. Y. 148, 85 N . E . 1 0 7 0 ; K eefe v . P eo p le (1 9 0 6 ), 37
C olo. 3 17, 87 P ae. 791.
20 P eo p le v . O ran ge Co. R oad C onst. Co. (1 9 0 3 ), 175 N . Y. 84, 67 N . E . 1 2 9 ; P eo p le
ex rel. C ossey,n . G rou t (1 9 0 4 ), 179 N. Y. 417, 72 N . E . 4 6 4 ; C ity o f C levelan d v . C lem ent
B ros. C on st. Co. (1 9 0 2 ), 67 O hio S t. 197, 65 N . E. 885.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

permit such legislation, and a new law enacted which was held to
be constitutional (Metz case), following the rule laid down by the
Supreme Court in the case Atkin v. Kansas.
An ordinance- of the city of Seattle, limiting to eight per day the
hours of labor of workmen employed by contractors on any of the
public works of the city, was declared unconstitutional by the
Supreme Court of Washington as interfering with the right of per
sons sui juris to contract with reference to matters that are neither
unlawful nor contrary to public policy.30
The State of Washington enacted a law in 1899 (ch. 101) fixing
eight hours as the limit of a day’s work for the State or for any
county or municipality within the State. A case arose subse
quently under an ordinance of the city of Spokane which included
the eight-hour provision, and this was upheld on the authority of
Atkin v. Kansas, which was held to sustain not only the State law
above referred to but the municipal ordinance in harmony therewith
as well.31
Where a State has an eight-hour law for employment on public
works a city can not by ordinance require a longer working time for
its citizens working on the streets under a provision allowing for
the working out of poll taxes.32 Ordinances of the city of Los
Angeles and of the city of Chicago containing provisions similar
to those of the Seattle ordinance discussed above were passed upon
by the courts of last resort of California and Illinois, respectively,
and were likewise declared unconstitutional as infringing upon the
freedom of contract.33 The constitution of California was subse
quently (1902) amended, fixing the eight-hour day^as the standard
for public works, and an act of 1903 (sec. 653c of the Penal Code)
embodies the same provisions. The State of Maryland has a statute
on the subject limited in its application to employment “ by or on
behalf of ” the mayor and city council of Baltimore (ch. 94, p. 642,
Acts of 1910). Despite its limited application this statute was held
constitutional by the court of appeals of the State.34 The Supreme
Court of Massachusetts passed upon the constitutionality of a pro
posed measure fixing the hours of labor on public works and making
work for, more than eight hours prima facie evidence and a viola
tion of the law. The power to fix the hours of work was upheld,
but the provision making overtime prima facie evidence of a viola
tion was declared invalid, the difficulty being that under the law
employment on certain days might exceed eight hours if a Satur
day half holiday is given. Assuming that such practice might be
common, it would be contrary to the fundamental principles of
criminal law to declare that such an act under the circumstances
would warrant a finding of guilt beyond a reasonable doubt.35
A leading case in this field is, of course, the Supreme Court deci
sion in the case Atkin v . Kansas, and its general recognition will
80 S e a ttle v . S m yth (1 9 0 0 ), 22 W ash . 327, 60 P ac. 1120.
In re B road (1 9 0 4 ), 86 W ash . 4 49, 78 P ac. 1004.
82 In re A sh b y (1 8 9 8 ), 60 K an . 101, 55 P ac. 336.
“ E x p arte K ubaeh (1 8 9 0 ), 85 C alif. 274, 24 P ac. 7 3 7 ; F isk e v . P eo p le (1 9 0 0 ), 188
111. 206, 55 N . E. 985.
34 S w eeten v . S ta te (1 9 1 4 ), 122 Md. 634, 9 0 A tl. 1 8 0 ; E lk an v . S ta te (1 9 1 4 ), 122 Md.
6 37, 9 0 A tl. 183 ; ju d g m en t affirm ed by th e Su prem e C ourt o f th e U n ite d S ta te s in a
m em orandum (1 9 1 5 ), 2 39 IT. S. 634, 36 Sup. Ct. 2 21, on th e a u th o rity o f A tk in v. K an sa s.
35 In re O pin ion o f th e J u stic e s (H o u rs o f lab or on p u blic w ork s) (1 9 1 1 ), 208 M ass.
6 19, 94 N. E. 1U44.

HOURS OF LABOR.

doubtless prevent any future adverse decisions on the point of regu
lation of public employment.
P R IV A T E EM PLOYM ENTS.

Private employment was addressed in a statute of Colorado (ch.
103, Acts of 1899), limiting to eight per day the hours of labor of
employees in all underground mines or workings and in smelters and
other institutions for the reduction or refining of ores or metals.
Prior to the enactment of this law, the legislature had submitted to
the supreme court of the State an inquiry as to the constitutionality
of such legislation, and the supreme court rendered an opinion
adverse thereto, holding that such a law would violate the rights of
parties to make their own contracts under the fourteenth amendment
of the Federal Constitution and the Bill of Eights of the State. It
was also said that the legislature could not single out the designated
industries and impose upon them special restrictions as to the hours
of labor of their employees.36 The law above cited was, however,
passed by the legislature, only to be declared invalid by the supreme
court as an interference with private business and inequitably dis
criminatory,37 the court explicitly rejecting the doctrine laid down
by the Supreme Court of the United States in a case involving a
statute of Utah of like nature.38
This case is of peculiar interest as illustrating a type of judicial
reasoning that has been the subject of much criticism. The fact that
four years previous to the enactment of this law the court had gone
on record against the validity of such legislation was adverted to,
and language of serious disapproval was used on account of “ such
legislative action in defiance and against the solemn decision of this
court.” An extenuating reason was suggested, since in the interim
the Supreme Court of Utah had sustained a similar law, and the
Supreme Court of the United States had affirmed such action. It
was pointed out, however, that this fact “ affords no justification”
for the Legislature of Colorado in enacting the measure under con
sideration. The constitution of Utah contains a limitation of eight
hours on public works, and directs the legislature to “ pass laws to
provide for the health and safety of employees in factories, smelters,
and mines.” The collocation of these provisions might be considered
as a direction to the Legislature of Utah to enact legislation of this
type, but no such provisions exist in the organic act of Colorado.
The Supreme Court of the United States was therefore considering,
not the relation of the law of Utah to the constitution of that State,
which had been decided by its own court, but whether or not the act
Tvas a violation of the Federal Constitution. For this reason the
decision in Holden v. Hardy was said not to be a precedent for the
Colorado court in construing the present law, since it must consider,
not Federal questions, but its relation to the State constitution.
Emphasis was laid on the freedom of contract and proper classifica
tion. Admitting that the police power extends to the protection of
the lives, health and comfort of all persons, it was said that “ while
invoking as a warrant for this act that phase of the police power867
86 In re E ig h t-H o u r B ill (1 8 9 5 ), 21 Colo. 29, 39 P ac. 328.
87 In re M organ (1 8 9 9 ), 26 C olo. 415, 58 P ac. 1071.
88 H old en v . H ard y (1 8 9 7 ), 169 U . S. 366, 18 Sup. C t 383.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

extending to the public health, its supporters do not claim that its
real and primary object is to protect the public health, or the health
of that portion of the community in the immediate vicinity, or
affected by operation of smelters. * * * How can an alleged law
that purports to be the result of an exercise of the police power be
such in reality when it has for its only object, not the protection of
others, nor the public health, safety, morals, or general welfare, but
the welfare of him whose act is prohibited, when, if committed, it
would injure him who commits it, and him only.” It was therefore,
ruled that it was “ beyond the power of the legislature under the
guise of the police power to prohibit an adult man who desires to
work thereat from working more than eight hours a day on the
ground that working longer may, or probably will, injure his own
health.”
The foregoing contrasts strikingly with the language of the
Supreme Court of the United States in passing upon the Utah law
where it is said: “ But the fact that both parties are of full age,
and competent to contract, does not necessarily deprive the State
of the power to interfere, where the parties do not stand upon an
equality, or where the public health demands that one party to
the contract shall be protected against himself. The State still
retains an interest in his welfare, however reckless he may be. The
whole is no greater than the sum of all the parts, and when the indi
vidual health, safety, and welfare are sacrificed or neglected, the
State must suffer.”
It may be added that subsequently to the rendering of the decision
by the Colorado court in the Morgan case, the constitution of the
State was amended (1902), directing the legislature to provide
by law for an eight-hour limitation on employment in underground
mines, Smelters, ore-reduction works, or'elsewhere in employment
regarded as injurious or dangerous to health, life, or limb; and
that in accordance therewith legislative action was taken (ch. 119,
Acts of 1905, superseded by ch. 95, Acts of 1913). .
The distinction between a labor law strictly considered and health
regulations again came before the Supreme Court in its considera
tion of a statute enacted by the Legislature of New York regulat
ing sanitary conditions in bakeries, and limiting the hours of labor
to 10 per day and 60 per week (sec. 10, art. 8, ch. 415, Acts of 1897).
The history of this case in its progress through the State courts
has already been noted (p. 7). The decision of the Supreme Court
of the United States, five to four, was that the law attempted an
arbitrary interference with the freedom of contract and could not
be sustained as an exercise of the police power to protect the public
health, safety, morals or general welfare.®9 In referring to the case,
Holden v. Hardy, it was said that the kind of employment covered
by the act then in question was held to warrant regulation by the
State, but that “ there is nothing in that case which covers the case
now before us.” The present law “ must be upheld, if at all, as a
law pertaining to the health of the individual engaged in the occu
pation of a baker,” since the quality of bread baked does not depend
upon the hours worked by the baker. It was said not to be a matter
^ L o e h n e r v . N ew Y ork (1 9 0 5 ), 198 U . S. 45, 25 Sup. C t. 5 39, rev ersin g P eo p le
L och n er (1 9 0 4 ), 1 77 N . Y. 1 45 , 6 9 N . E . 3 73.

HOURS OF LABOR.

of common knowledge that the occupation of a baker was unhealthy,
but “ to the common understanding the trade of a baker has never
been regarded as an unhealthy one.” If a law regulating his hours
could be sustained there was no trade or occupation but might come
under legislative dominion, interfering with the freedom of contract,
“ although such limitation might seriously cripple the ability of the
laborer to support himself and his family.” Laws of this nature,
“ limiting the hours in which grown and intelligent men may labor
to earn their living, are meddlesome interferences with the rights
of the individual.” A vigorous dissent was entered by four justices,
two separate opinions being written, in which was recognized the
validity of certain evidence on the subject of the unhealthfulness
of the occupation of baker, and the need of proper regulations. It
was also said that “ this case is decided upon an economic theory
which a large part of the country does not entertain.”
The decision stands out in rather sharp contrast with the principles
laid down in the Holden case, the line of argument approximating,
though not reaching, the laissez faire attitude of the Colorado court
in the Morgan case. The decision has'stood for a number of years
as authority for condemnation of laws considered to interfere unduly
with the right of private contract. It was cited by the Supreme
Court of Massachusetts when it declared unconstitutional an act
(ch. 746, Acts of 1914) which proposed to establish a day of nine
hours for employees of railroad companies employed in and about
baggage rooms and railway stations, crossing tenders, etc.40 The
statute was said to be indistinguishable in principle from the law
condemned in the Lochner case, that decision being “ binding upon
the legislature and courts of this Commonwealth.” The case was
also used as authority by the Supreme Court of Utah in declaring
unconstitutional an act (ch. 23, Acts of 1915), which fixed the clos
ing hours of mercantile establishments in cities of 10,000 or morq
population, naming 6 o’clock as such hour except on the six business
days immediately preceding Christmas.41 Not only did it violate
the principles laid down in the Lochner case, but it was also con
demned as special legislation on account of excluding certain cities
and also drug stores and establishments selling perishable food
supplies. Other cases in which this test was applied passed upon
the constitutionality of legislation of the State of Louisiana. By
one statute the hours of labor of stationary firemen had been fixed
(No. 245, Acts of 1912). It was said that “ whatever may have
been the motive for the passage of the act we are satisfied that it
was not based on health consideration.”42 There was also found
to be an unlawful discrimination in the act by reason of the exemp
tions which showed improper classification. A later law (No. 201,
Acts of 1914) undertook to regulate the same subject matter in cities
of 50,000 or more. The conclusion was reached that “ a statute con
taining a mere pretense of promoting or protecting the public health
or public safety, and having no real or reasonable relation to its pre
tended object, is an abuse of the police power of the State.”43
The Supreme Court of Missouri took the same view of a law of
that State (R. S. 1889, sec. 10088) relating to the hours of labor of
40 C om m on w ealth

S a y ille

v . B osto n & M ain e R. Co. (1 9 1 5 ), 2 22 M ass. 2 06, 1 10 N . E. 264.
C orless (1 9 1 5 ), 4 6 U ta h 495, 151 P ae. 51.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

employees in bakeries.*44. So also of an ordinance of the city of
San Francisco restricting the hours of work in laundries to the
time between 6 a. m. and 7 p. m. on week days only; here again
the United States District Court, before which the case was heard,
cited the Lochner case as a precedent for holding this statute an
unwarranted interference with the freedom of contract and the right
of an individual to manage his own affairs.45 The judge in this
case pointed out the fact that the Supreme Court of California
had expressed contrary views in a case before it, and' announced
his conclusion “ with great reluctance, in deference ” thereto. In
the case before the State court referred to, the exact situation was
involved as in the Yee Gee case, the same ordinance having been
violated. That court held the limitation to 11 hours each day not
to be “ a restriction so unreasonable that it invalidates the consti
tutional rights of persons engaged in the laundry business,” leaving
the ordinance to stand as a constitutional “ exercise of the legislative
will of the board of supervisors of the city and county of San
Francisco.”46
More general in its application than the above laws was a statute
of Nebraska (ch. 54, Acts of 1891), which made eight hours a
day’s labor for mechanics and laborers generally, providing that if
they work over such time the employer should pay extra compensa
tion. This act was condemned as infringing upon the right of con
tract, and also as discriminatory because farm and domestic laborers
were excluded from ‘the application of the law.47 The same view
was taken by the Supreme Court of Oregon in passing upon an
ordinance of the city of Astoria, quite similar in its terms to the
Utah law noted above, fixing the hour of closing of mercantile estab
lishments generally at 6 o’clock daily except Saturday. There were
exceptions to the ordinance which made it “ radically at fault in its
classification,” so that it was not necessary for the court to consider
whether or not a properly drawn ordinance would be a reasonable
exertion of the police power.48
A technicality vitiated an act of the Alaska Legislature (ch. 29,
Acts of 1913, amended by ch. 6, Acts of 1915). This act under
took to limit to eight per day the hours of work in mines, but was
held void because it did not conform to the requirement of the
organic act that “ no law shall embrace more than one subject, which
should be expressed in its title.49
In view of the importance attached to the decision in the Lochner
case as an authority with regard to the boundaries within which
legislatures may limit the hours of labor of adult males, it is of interest
to notice a more recent position of the Supreme Court as expressed
in a case in which it passed upon the constitutionality of a law of
Oregon limiting to 10 per day the hours of labor of employees
generally in “ any mill, factory or manufacturing establishment in
this State” (ch. 102, Acts of 1913). Overtime not to exceed three
hours per day might be worked, to be paid at the rate of time and a
42 State v . Barba (1913), 132 La. 768, 61 So. 784.
48 State v . Legendre (1915), 138 La. 154, 70 So. Rep. 70.
44 State v . Miksicek (1910), 225 Mo. 561, 125 S. W. 507.
43 Yee Gee v . San Francisco (1916), 235 Fed. 757.
48 Ex parte Wong Wi*ng (1914), 167 Cal. 109. 138 Pac. 695.
47 Low V. Rees Printing Co. (1894), 41 Nebr. 127, 59 N. W. 362.
48 Chan Sing v . City of Astoria (1916), 79 Oreg. 411, 155 Pac. 378.
48 United States i?. Howell (1916), 5 Alaska 578.

HOURS OF LABOR.

half. The statute had previously been upheld by the supreme court
of the State.50 Counsel attacking the law cited the earlier decision
of the Supreme Court in the Lochner case as a precedent for a de
cision against the statute under consideration. Counsel for the
State also referred to the decision as based upon “ the common un
derstanding ” of the nature of the bakers’ employment, pointing out
that “ the subject is one for scientific scrutiny and critique, for
authoritative interpretation of accredited facts.” An extensive sys
tematic review of facts and statistics dealing with the effects of
overtime upon the vitality and efficiency of the worker was offered
in support of the position of the State, with reference to the state
ment in the case, Holden v. Hardy, that “ the law is, to a certain ex
tent, a progressive science.” The statute was upheld as an “ exercise
of an admitted power of government,” with a regard to the health
and welfare of the persons to whom the law applies; and the fact
that the law “ is not as complete as it might be is no impeachment of
its legality.51 No reference is made in sustaining this law to the
decision of the court in the Lochner case, nor is any other case cited
as sustaining this decision. The conclusion seems inevitable, how
ever, that the doctrine of the Lochner case is so fully discredited
that it can no longer be cited as an authority where the power of
the State to regulate the hours of labor of adult males is in question,
at least if the test of “ health and welfare ” is applied.
An act was passed by the Legislature of Ohio (act of March 26,
1890) to limit the hours of labor of employees on railroads, and
require pay for overtime work done under the direction of a superior
or at the request of the company. This law was condemned as
interfering with the rights of private property.52 The Legislature of
Missouri (Acts of 1907, p. 332) and that of Wisconsin (Acts of 1907,
ch. 575) enacted laws restricting the hours of employment of train
dispatchers. The law of the former State was declared unconsti
tutional in so far as it affected interstate commerce; and since it
did not discriminate between employees engaged in such commerce
and those engaged in intrastate commerce the law must fall as a
whole, Congress having acted in such a manner as to cover the
ground of interstate commerce in the exercise of its powers under
the commerce clause of the Constitution.53 When the Wisconsin
law was tested the court ruled that the prior enactment of a Fed
eral law on this subject excluded State legislation, commerce being
a matter of Federal and not of State control. It was further said
that it was impracticable to separate interstate and intrastate opera
tions.54 It has been held, however, that State and Federal laws
may exist and operate coordinately if the former are not in conflict
with the latter.55
The Legislature of Washington undertook to anticipate the com
ing into effect of the Federal law by its passage in 1907 (ch. 20)
of an act subsequent in date to the Federal enactment, but to have
immediate effect. The Federal statute allowed one year as a period
50 State v . Bunting (1914), 71 Oreg. 259, 139 Pac. 731.
Bunting v . Oregon (1917), 243 U. .S. 426, 37 Sup. Ct. 435.
52 Railway Co. v . Gilmore, 8 Ohio C. C. Rep. (First Series) 658.
63 State v . Mo. Pac. R. Co. (1908), 212 Mo. 658, 111 S. W. 500.
m State v. Chicago, etc., R. Co. (1908), 136 Wis. 407, 117 N. W. 686.
55 People v . Erie R. Co. (1910), 198 N. Y. 369, 91 N. E. 849; Lloyd
(1909), 151 N. C. 536, 66 S. E. 604.

N. C. R. Co.,

LABOR LAWS DECLARED UNCONSTITUTIONAL.

of adjustment before the limitation became operative, and the
Supreme Court held that the State had made an “ invalid attempt to
override the expressed opinion of Congress in so far as the State
law attempted to regulate interstate commerce.” 56 A similar pro
nouncement was made with reference to a New York law (ch. 627,
Acts of 1907) limiting to eight per day the hours of service of
telegraph operators, etc., engaged in reporting trains to other offices
or to a train dispatcher. The trial court levied a fine, but the
appellate division regarded the act as unconstitutional. The court
of appeals in turn sustained the act and the case was taken on a
writ of error to the Supreme Court where the act was declared to
be void in so far as it related to any attempt to regulate interstate
commerce since Congress had completely covered the field by its
enactment of March 4, 1907, effective March 4, 1908.57
W OMEN.

Laws fixing the hours of labor, making sex the basis of distinc
tion, have been condemned by the courts of a few States, the law of
Illinois (act of June 17,1893), limiting to eight per day the hours of
labor of females in certain employments, being pronounced by the
supreme court of that State a purely arbitrary restriction upon the
fundamental right of a citizen to control his or her own time and
faculties, substituting the judgment of the legislature for that of em
ployers and employees in matters about which they are competent
to agree, and depriving them of both liberty and property rights.
It was said, too, that ther^ was nothing to indicate that the measure
was a sanitary one, and it could not, therefore, be supported.58 This
court has sustained a later law fixing the hours of labor of females
at 10 per day in designated employments, on the ground that such
limitation conduced not only to the health of woman, but also to the
good of the race, sex differences warranting statutory distinctions.59
The earlier decision was not expressly repudiated, but the new law
was shown by its title to have regard to health, which the old law
failed to state; and it was also said that the court in the earlier case
might not have held the law unconstitutional if the limitation had
been 10 hours instead of 8. Practically the same argument as that
presented in the earlier Illinois case was used by the Court of Appeals
of New York, holding unconstitutional a law of that State (Acts of
1903, ch. 184, sec. 77), which limited to 10 per day the hours of labor
of women and prohibited all work between 9 p. m. and 6 a. m., the
objectionable feature of the law being the absolute prohibition of
work between the specified hours, regardless of the duration of such
work.60 The Supreme Court of Oregon and the Supreme Court of
the United States sustained a law of Oregon limiting to 10 per day
the hours of labor of females.61 A law was enacted by the Legis
lature of Colorado prohibiting the employment of women for more
than 8 hours per day in designated industries, and in other employ
ments “ at the discretion of the court.” This provision was con
56 No. Pac. R. Co. 17. Washington (1912), 222 U. S. 370, 32 Sup. Ct. 1601.
« Erie R. Co. v . New Yorfe (1914), 233 U. S. 671, 34 Sup. Ct. 756.
58 Ritchie 17. People (1895), 155 111. 98, 40 N. E. 454.
59 Ritchie & Co. v . Wayman (1910), 244 111. 509, 91 N. E. 695.
60 People v . Williams (1907), 189 N. Y. 131, 81 N. E. 778.
61 State 17. Muller (1906), 48 Oreg. 252, 85 Pac. 855; Muller v . Oregon (1908), 208
U. S. 412, 28 Sup. Ct. 324.

SUNDAY LABOR.

demned as an ineffectual attempt to delegate legislative authority,
the legislature alone having power to determine to what industries
the la\v should apply. One section of the statute prohibited employ
ment for more than 8 hours per day in any occupation requiring
women to stand or be on their feet. The constitution of the State
authorized legislative action with reference to any “ industry or labor
that the general assembly may consider injurious or dangerous to
health, life, or limb.” It was held that by the terms of the statute
there was no finding by the legislature that the occupations covered
by the law were of the character included in the provisions of the
constitution above quoted, so that the law could not stand.02
A law of Wyoming (ch. 45, Acts of 1915) undertook to limit the
hours of labor of women in enumerated employments, restaurants
among others, but exempting restaurants operated by railroad com
panies. This exemption was held to be an arbitrary and unreason
able classification, so that the law was void in so far as it applied
to restaurants of any kind, though standing with regard to other
employments.*63 The legislature of 1917 (ch. 106) amended the act
so as to make it of general application, reinstating restaurants of
all kinds.
The Wisconsin Legislature (ch. 381, Acts of 1913) authorized the
industrial commission of the State to fix the hours of labor of
women in different employments, but itself established certain
standards to be effective until the commission should act. While
sustaining the power of the legislature to establish standards, the
supreme court of the State held that there was an unlawful attempt
to delegate legislative authority to a nonlegislative body, the duty
of classification and regulation belonging to the legislature alone.
The portion of the law bearing on this point was therefore declared
void, but without invalidating the act as a whole.64 The point
declared void was reargued, and the court revised its former opin
io^ concluding that the authority given the commission was not
legislative, but only executive and ministerial, and hence within its
proper purview.65 This position is in harmony with a strong array
of opinions by various courts.66
SUNDAY LABOR.

Laws restricting or prohibiting labor on Sunday are generally
accepted as valid, unless improperly discriminatory. The Cali
fornia Legislature of 1858 enacted a law prohibiting Sunday labor,
which was declared unconstitutional and void because in violation of
religious freedom, enforcing the compulsory observance of a day
held sacred by believers in one religion, but not by others, thus
discriminating in the favor of one class and against the other.67
The common view taken of laws of this class is that they are social
and economic in their effect and not compulsory of religious observ
er Burcher v . People (1907), 41 Colo. 495, 98 Pac. 14.
63 state v. LeBarron (1917), 24 Wyo. 519, 162 Pac. 265.
64 State v . Lange Canning Co. (1916), 164 Wis. 228, 157 N. W. 777.
65 State v . Lange Canning Co. (1916), 164 Wis. 241, 160 N. W. 57.
68 Stettler v . O’Hara (1914), 69 Oreg. 519, 139 Pac. 743; Rail & River Coal Co. v.
Yaple (1915), 236 U. S. 338, 35 Sup. Ct. 359, etc.; s e e M o n t h l y L a b o r R e v i e w , July,
1916, pp. 136-147.
07 Ex parte Newman (1858), 9 Calif. 502.

11934°—22----- 5

LABOR LAWS DECLARED UNCONSTITUTIONAL.

ance, and in a later opinion of the Supreme Court of California, this
view was adopted.68 Several cases appear in which laws of special
application were condemned purely on the ground of the arbi
trary selection of a single occupation for the prohibition of labor
therein. Such a statute was an act of the Legislature of California
(Acts of 1880, p. 80) prohibiting Sunday labor in bakeries, though
the occupation most commonly made the subject of such legislation
is that of the barber. (California Penal Code, sec. 310^; Illinois, act
of June 26, 1895; Indiana, ch. 64, Acts of 1907; Kentucky Statutes,
sec. 1322, Missouri, act of March 18, 1895, etc.) A statute of Ten
nessee (ch. 106, Acts of 1887) was addressed to the matter of barbers
keeping bathrooms open on Sunday, but allowed other proprietors
to keep their baths open on that day. Laws of this nature are
practically identical in their form and in their defects, being vio
lative of the equal-protection clause of the fourteenth amendment,
either because they prohibit certain occupations without suitable
basis for classification, or because they enact heavier penalties on
those following certain employments than on others.6®
However, the Supreme Court has upheld a specific proviso of a
general law prohibiting Sunday labor, which declared as a matter
of law that keeping open a barber shop on Sunday shall not be
deemed a work of necessity or charity. This provision had the effect
of setting the occupation apart from others, as to which the status
would be a matter of determination by a jury, but this was held not
to invalidate the act, the legislature having “ the right to define its
own language.” 70
Where there is a proper classification, exemptions may be made
in laws permitting Sunday labor or requiring a weekly day of rest,
but this must be the act of the legislature; and to attempt to confer
power on an administrative officer to make exemptions in his
discretion is an unlawful delegation of legislative authority.71 The
provision giving the commissioner of labor power to exempt certain
employees if he “ in his discretion approves ” was added to existing
legislation by way of amendment (ch. 396, Acts of 1914), so that in
accordance with the rule of law set forth on page 9 the original
statute remained, though this provision was invalid.
LIABILITY OF EMPLOYERS FOR INJURIES TO EMPLOYEES.

The liability of the employer for injuries to his employees, as a
doctrine of the common law, has been affected by numerous statutes,
both directly and indirectly. The power of the legislature to cast
on the employer a degree of responsibility for the acts of fellow
servants that did not exist at the common law is apparently ques
tioned in a case involving the constitutionality of a Pennsylvania
“ Ex parte Andrews (1861), 18 Calif. 678. S e e a l s o Hennington v . Georgia (1896),
163 U. sT 299, 16 Sup. Ct. 1086 ; Soon Hing v . Crowley (1885), 113 TJ. S. 703, 5 Sup.
Ct.69730.
Ex parte Westerfield (1880), 55 Calif, 550, 36 Am. Rep. 47; Ex parte Jentzsch
(1896), 112 Calif. 468, 44 Pac. 803; Eden v . People (1896), 161 111. 296, 43 N. E. 1108;
City of Marengo v. Rowland (1914), 263 111. 531, 105 N. E. 285; State v . Granneman
(1896), 132 Mo. 326, 33 S. W. 784; Ragio v . State (1888), 86 Term. 272, 6 S. W. 401;
Armstrong v . State (1908), 170 Ind. 188, 84 N. E. 3; Stratman v . Commonwealth
(1910), 137 Ky. 500, 125 S. W. 1094.
w P etit v . Minnesota (1900), 177 U. S. 164, 20 Sup. Ct. 666.
« People v . C. Klinck Packing Co. (1915), 214 N. Y. 121, 108 N. E. 278.

e m p l o y e r s ’ l ia b il it y fo r i n j u r i e s to e m p l o y e e s .

statute (Acts of 1891, p. 176).72 No doubt now exists, however, as to
the power of the legislature to modify or even abrogate entirely the
usual defenses of the employer by means of properly drawn statutes.
The statute above referred to made it obligatory upon the operators
of coal mines to employ licensed foremen, holding the employer
responsible for injuries occasioned by the negligent acts of such fore
men. The court ruled that employees of this class were fellow
servants of the miners and that the employer could not be made
liable for their negligent acts, and, further, that such an employee
was a representative of the State and not of the employer, and that
the latter could not justly be held responsible for his negligence.
While the law was held to be constitutional in parts, the provisions
that were contrary to the above findings were declared to be unconsti
tutional and void. It may be said that the basis of this finding
has been negatived by practically the entire trend of recent legisla
tion and court decisions.73 Kecent opinions of the Supreme Court
of Pennsylvania recognize fully the power of the legislature to
modify the common-law rules as to employers’ liability.74
Laws affecting liability must show a proper basis of classification,
so that a statute abolishing the defense of common service in an
action for injuries to employees of corporations generally (Missis
sippi, Acts or 1898, p. 85) was declared unconstitutional as impos
ing restrictions, on all corporations without reference to any differ
ences arising out of the nature of their business ; and as such re
strictions were not imposed on natural persons, corporations were
denied the equal protection of the law.75 The same criticism was
made of a statute of Indiana (Acts of 1893, p. 294) abrogating the
defense of fellow service for all corporations other than municipal
corporations. The court held in a case arising under the statute,
as was held in the Missisippi cases above cited, that a law abrogat
ing the defense of fellow service could properly be enacted with
reference to the operation of railroads on account of the peculiai
hazards connected therewith, but that to include all corporations
within its scope was to depart from any proper basis of classifica
tion. The law was therefore declared unconstitutional, except in
its application to employment involving railroad hazards.76 The
same statute contained a provision to the effect that if a citizen of
Indiana was injured in another State by the negligence of a fellow
servant on a railroad operating into or through Indiana, the rail
road company could not offer as a defense in an action for injuries
the decisions or statutes of the State where the injury occurred.
This provision of the law was rejected by the courts as an attempt
at extrastate legislation, the courts saying that there is a recognized
vested right of defense to an action which is, in a sense, property,
and that such a law would operate as a confiscation of property
rights; nor could it be invoked to give a right of action for an
72 Durkin v . Kingston Coal Co. (1895), 171 Pa. St. 193, 33 Atl. 237. S e e a l s o Golden
Coal Co. (1909), 225 Pa. St. 164 73 Atl. 1103.
78 Missouri P. R. Co. v . Mackey (1888), 127 U. S. 205, 8 Sup. Ct. 1161; Tullis v .
R. Co. (1899), 175 U. S. 348, 20 Sup. Ct. 136; Vindicator Co. v . Firstbrook (1906),
36 Colo. 498, 86 Pac. 313; Rhodes v . Sperry, etc., Co. (1908), 193 N. Y. 223, 85 N. E.
1097.
7* Valjago v . Steel Co. (1910), 226 Pa. St. 514, 75 Atl. 728, and cases cited.
75 Ballard v . Mississippi Cotton Oil Co. (1903), 81 Miss. 507, 34 So. 533; Bradford
Co. v . Heflin (1906), 88 Miss. 314, 42 So. 174.
78 Bedford Quarries Co. v . Bough (1907), 168 Ind. 671, 80 N. E. 529; American Car
& Foundry Co. v . Inzer (1909), 172 Ind. 56, 87 N. E. 722.
v.

64
LABOR LAWS DECLARED UNCONSTITUTIONAL.
injury sustained in another State if such right does not exist under
the laws of that State.77
The expression “ vested right of defense to an action ” must be
construed within the limitations indicated in the opinion, i. e.,
that a right of action existing in the place where the injury occurred
must be available to the defendant wherever the action is brought,
for it is decisively settled that there is no such thing as a “ vested
right ” in the common-law defenses as such. Thus in speaking of
the provisions of the first compulsory compensation law of New
York, the court of appeals of that State, referring to the abroga
tion of the defenses of fellow service and contributory negligence,
said, “ These doctrines—for they are nothing more—may be regu
lated or even abolished. This is true to a limited extent as to the
assumption of risk by the employee ”; 78 while the Supreme Court
“ has repeatedly upheld the authority of the States to establish by
legislation departures from the fellow-servant rule and other com
mon-law rules affecting the employers’ liability for personal injury
to their employees.” 79
Falling under the same condemnation as some of the statutes noted
above was an act of the Legislature of Louisiana (No. 187, Acts of
1912) which abolished the common-law defenses of assumption of
risk and fellow service in actions against public-service corpora
tions. The supreme court of the State declared the law invalid as
conflicting with both the State and the Federal Constitution because
denying equal protection of the laws.80
A statute of South Dakota (Acts of 1907, ch. 219) abolished the
defense of fellow service and modified the doctrine of contributory
negligence in cases of injury to employees of “ every common carrier
engaged in trade or commerce in the State.” No distinction was
made between common carriers by railroad and those by street car,
carriages, omnibuses, wagons, drays, etc.; all employees were also
included without reference to the hazard of their employment. In
a case before the United States Court of Appeals 81 the failure to
make proper classification in respect of the above points was held
to invalidate the statute as imposing unequal and unwarranted bur
dens upon common carriers as compared with other employers, with
out reference to the dangers of the employment. The court conceded
that the hazards of railroad transportation warranted special legis
lation applicable thereto, but declared that it was impossible for it
to separate the invalid from the valid portions and sustain the latter
since to do so would vary the expressed will of the legislature and
result in a form of judicial legislation which the court could not
attempt. The statute was therefore declared unconstitutional in its
entirety.
A Federal statute (act of June 11, 1906; 34 Stat. 232) abolished
the defense of fellow service in actions for injuries to employees of
common carriers engaged in interstate commerce. This law failed
to discriminate between employees engaged immediately in com
merce restricted within State boundaries and those properly amen
77 Baltimore & O. S. W. R. Co. v . Read (1902), 158 Ind. 25, 62 N. E. 488.
™Ives v . South Buffalo R. Co. (1911), 201 N. Y. 271, 94 N. E. 431.
79 N. Y. Cent. R. Co. v . White (1917), 243 U. S. 188. 37 Sup. Ct. 247.
80 Mason v . New Orleans Terminal Co. (1918), 143 Ln. 616, 79 So. 26.
* Chicago, &
Co. v .
M

S t .

P .

( 1 9

1 0 ) ,

F e d .

6 1 9 .

EMPLOYERS1 LIABILITY EOR INJURIES TO EMPLOYEES.

able to Federal legislative action, and it was for this reason declared
unconstitutional.82 The act of April 22, 1908 (35 Stat. 65) under
took to reenact the valid provisions of the above law, omitting such
as were objectionable. In a case arising under this law in the State
of Connecticut, the court of last resort of that State held the law in
valid, except as applicable to interstate commerce, declaring that
it could not interfere with intrastate commerce in order to remotely
affect the former. An interstate employee would therefore have
no redress in case of an injury caused by the act oi an employee
engaged only in intrastate commerce. The law in question prohibited
contracts waiving the rights secured to employees by the statute
and allowed employees guilty of contributory negligence to recover
damages in cases where the negligence of the employer was greater
than that of the employee. Both, these provisions were declared
unconstitutional by the same court, the first as infringing on the
freedom of contract and the second as arbitrarily depriving the de
fendant of his property. The law also contained a provision as to
the distribution of the amounts recovered as damages for the death
of injured employees, the rule therein laid down differing from the
statute of distributions of the State of Connecticut, and this was
held to be an infringement on the rights of the State, and therefore
void.83
Cases under the act of 1908 came to the Supreme Court of the
United States from various courts, including the Supreme Court of
Errors of the State of Connecticut which had given the decision in
the Hoxie case above.84 The objections sustained by the Connecticut
court were declared untenable by the Supreme Court both as regards
freedom of contract and the arbitrary deprivation of property. As
to the conflict with the State forms of jurisdiction which it was
claimed the Federal law would interfere with, making it confusing
for a State court to recognize Federal standards which* differ from
its own, it was said that there was concurrent jurisdiction of the
Federal courts with the courts of the several States in matters
arising under the laws of the United States, under a specific pro
vision of the general jurisdictional act. Furthermore, when Con
gress, in the execution of the powers confided to it by the Consti
tution, adopted that [employers’ liability] act, it spoke for all the
people and all the States, and thereby established a policy for all.
The conclusion was reached that the act was valid throughout, and
that rights arising under it “ may be enforced, as of right, in the
courts of the States when their jurisdiction, as prescribed by local
laws, is adequate to the occasion.” It may be added that the act of
1908 was made the subject of amendments which clarified the situa
tion to some extent in regard to some of the objections raised by
the Connecticut court (act of April 5, 1910, 36 Stat. 291).
An act of Mississippi making injury prima facie evidence of
negligence was held to be inapplicable in suits arising under the
Federal employers’ liability act, as in effect offering an amendment
to the Federal law which had established the full measure of liabil
ity of the employers governed by it.85
82 Howard v . I C. R. Co. (1908), 207 U. S. 463, 28 Sup. Ct. 141.
Hoxie v . New York, etc., R. Co. (1909), 82 Conn. 352, 73 Atl. 754.
84 Second Employers’ Liability Cases (1912), 233 TJ. S. 1, 32 Sup. Ct. 169.
85 New Orleans & N. E. R. Co. v . Harris (1918), 247 U. S. 367, 38 Sup. Ct. 535.

6 6

LABOR LAWS DECLARED UNCONSTITUTIONAL.

In the same way the rule of evidence in use in the Vermont courts
as to the proof of contributory negligence was held not to be
applicable in trials under the Federal statute.86
The provision in the Federal employers’ liability act with regard
to waiving the rights secured by the statute is of similar effect to
a much earlier law of Ohio (Acts of 1890, p. 149), which forbade
any “ railroad company, insurance company or association of other
persons” to require or make any contract or agreement whereby
another person about to enter the service of a railroad company
should agree to waive rights to damages for injury or death. The
case was before a district court of the United States, the constitu
tionality of the statute being challenged. A court of common pleas
had already held the act unconstitutional.87 The district court took
the same view of the statute, as denying to employees the liberty
of contracting freely concerning their own labor, “ and of the right
to exercise the privileges of manhood. * * * Being directed
solely to employees of railroads, it is class legislation of a most
vicious character. * * * There can not be one law for railroad
employees, another law for employees in factories, and another law
for employees on the farm or the highways.” The act was therefore
declared unconstitutional.88 The whole reasoning of this opinion is
contradicted by the decision in the Second Employers’ Liability
Cases already cited, where it was held that not only does Congress
possess the power to impose the liability for injuries, but it also
possesses the power to insure the efficacy of the regulation estab
lished “ by prohibiting any contract, rule, regulation or device in
evasion of it.” Like the Ohio law, the Federal statute applied only
to railroads, and among railroads only to employment in interstate
commerce. “ But it does not follow that this classification is vio
lative of the due process of law clause of the fifth amendment,”
since classifications of railroad carriers and their employees for
like purposes have been frequently sustained.
A statute of New Mexico (Acts of 1903, ch. 33) prescribed pro
cedure in actions for injuries, establishing limitations and prohib
iting the trial of actions for injuries occurring within the Territory
in the courts of other jurisdictions. This law was condemned ana
disregarded in a case tried in the courts of Texas, the injury on
which the action was based having been received within the limits
of New Mexico.89 The same act was before the Supreme Court of
the United States on a writ of error to the court of civil appeals in
a case involving the same situation.90 The finding was to the effect
that the Territory had exceeded its powers in undertaking to pass
a law having force or effect over persons or property beyond its
jurisdiction, actions for personal injuries being held to be transitory
and maintainable wherever a court may be found that has jurisdic
tion of the parties and the subject matter. In its exercise over
Territorial legislation, Congress by a joint resolution on May 13,
1908, declared this act of the Territorial legislature null and of
no effect.
~ so central Vt. R. Co, v . White (1915), 238 U. S. SOT, 35 Sup. Ct. 865.
87 Cox v . R. Co. (1895), 33 Ohio Law Journal — .
88 Shaver v . Penn. Co. (1896), 71 Fed. 931.
80 Atchison, T. & S. F. R. Co. v . Mills (Tex. Civ. App., 1909), 116 S. W. 852.
90 Atchison, T. & S. F. R. Co. v . Sowers (Tex. Civ. App., 1907), 99 S. W. 190; af
firmed (1909), 213 U. S. 55, 29 Sup. Ct. 397.

w o r k m e n ’s c o m p e n s a t io n .

The Legislature of Alabama enacted an employers’ liability law,
but provided that all actions under it “must be brought in a court
of competent jurisdiction within the State of Alabama and not
elsewhere” (sec. 6115, Code of 1907). A case under the act was
brought in the courts of Georgia, which administered the law of
Alabama but disregarded the provisions as to where an action
might be brought.91 The decision of the Supreme Court followed
its ruling in the Sowers case above, and held the provision of the
Alabama law not a valid restraint on the courts of other States in
regard to their jurisdiction over transitory causes of action.
WORKMEN’S COMPENSATION.

The old doctrine of employers’ liability for injuries to employees
was limited to cases in which the negligence of the employer or
his representative was the cause of the injury, and involved the
defenses already noted. Under the principles of workmen’s com
pensation, the fact of industrial injury to one in the status of
employee is practically the sole condition for an award of compen
sation benefits. The transition from the old basis of negligence
and suits for damages to the present one of definite allowance
of benefits for practically all industrial injuries, in fixed amounts
and without litigation, was not achieved without judicial conflict
and the setting aside of some experimental legislation. However,
it has become evident that some decisions against the validity of
compensation legislation were due to a judicial attitude that has
not commanded general support, while other declarations of uncon
stitutionality are based on peculiar and nonessential provisions of
law or specific limitations embodied in the constitutions of some
of the States.
The beginning of legislation of this general type was an act
of the Maryland Legislature of 1902 (ch. 129). This act estab
lished rules to govern the liability of employers in certain indus
tries, including mining, quarrying, steam and street railways, and
certain forms of public work. Provision was made for the main
tenance of a cooperative insurance fund, supported by contributions
from employers and employees. Contribution by the employer re
lieved him of other liability. Payments in fixed sums of $1,000
were to be made by the State insurance commissioner, who admin
istered the law, to the heirs of any employee whose death resulted
from accident under conditions prescribed by the act. A contest
based on the alleged unconstitutionality of the act resulted in a
ruling adverse to the statute, on the ground that it invested the
insurance commissioner with judicial or quasi judicial powers with
out any provision for a trial by jury or for an appeal from his
finding. It not only took care of cases in which no negligence was
shown, but it deprived employees and their survivors of the right
of action for damages in cases of the employer’s negligence.92
Though this decision was by an inferior court, no appeal was taken,
and no further proceedings were ever had under the law.
The next legislation in this field was a cooperative insurance law
of Montana (ch. 67, Acts of 1909). This resembled the Maryland
91Tenn. Coal, I. & R. Co. v . George (1912), 11 Ga. App. 221, 75 S. E. 567; affirmed
(1914), 233 U. S. 354, 34 Sup. Ct. 587.
92 Franklin v . United R. & E. Co. of Baltimore, Court of Common Pleas of Baltimore
(1904). (Case reported in Bulletin No. 57 of the U. S. Bureau of Labor, p. 689.)

LABOR LAWS DECLARED UNCONSTITUTIONAL.

statute in its provision for a cooperative insurance fund, but un
dertook to retain to the employee the right to sue his employer if he
chose to take this action rather than to accept the amount of benefits
provided by the insurance law. While the act was said to be con
stitutional and of beneficent intent in some respects, the entailing of a
double liability upon the employer, i. e., the maintenance of the
insurance fund, while also remaining subject to suit for damages r
was said to be an unconstitutional discrimination, and the imposi
tion of an improper burden upon him. The act was therefore held
void in its entirety.93
In 1910 the Legislature of New York took the lead in the enact
ment of compensation statutes of the type now in general effect.
Two statutes were enacted, one elective and the other compulsory.
The first of these were practically without effect from its origin.
The second (ch. 674, Acts of 1910) required employers in designated
dangerous employments to compensate their workmen according to
a fixed schedule in case of injuries resulting from the risk of the
employment without regard to negligence. Administration by a
commission was not provided for, but acceptance of benefits under
the act was a bar to any other proceedings.
The constitutionality of this act was promptly challenged on the
ground that it charged the employer with liability without faultr
setting aside the doctrine of negligence, together with the commonlaw defenses, thus depriving the employer of liberty and property
without due process of law and denying the equal protection of the
laws; also because the act took away the right of trial by jury and
limited the amount recoverable in actions for injuries resulting in
death. The supreme court of the State (appellate division) took
the ground that the statute was valid, though refusing to consider
the objection as to limitation of recovery in death cases, because the
objection was raised by the employer who was not prejudiced by
such a provision.94
The case was at once taken to the court of appeals of the State
and there reversed.95 This court unanimously condemned the act
in an extended opinion, which found the law defective in various
points. The same objections were urged as in the court below. The
question of trial by jury was left undecided because of conflicting
views among the members of the court, and 44since the disposition
of the questions which it suggests is not necessary to the decision of
the case.” The statute was said to offend both the State and the
Federal Constitutions in its depriving of life, liberty, or property
without due process of law by casting upon the employer a liability
for injuries not due to his negligence. 44The theory is not merely
new in our system of jurisprudence but plainly antagonistic to its
basic idea.” There was not an observance of 44due process,” and
while the right of the legislature to create a new remedy in addition
to those previously existing was admitted, it was declared that it
had no power 64to give a remedy for no wrong.” It was admitted
also that the defenses of felloAv service and contributory negligence
could be disposed of according to legislative judgment, being 44fully
within the scope of legislative power”; while, as to the defense
93 Cunningham v . N. W. Improvement Co. (1911), 44 Mont. 180, 119 Pac. 554.
94 Ives v . So. Buffalo R. Co. (1910), 124 N. Y. Supp. 920.
95 Same case (1911), 201 N. Y. 271, 94 N. E. 431.

W ORKM EN ?S COMPENSATION.

of the assumption of risk, there was some limitation by consti
tutional provisions. However, as the act stood, it was said to
be beyond the police power of the State and void as seeking to
impose upon the employer a liability “ which never existed before,
and to which he is permitted to interpose practically no defense,”
so that the statute was void as taking property without due process
of law.
While recognizing the validity of the classification features of the
act, as well as of certain other provisions, the decision resulted in a
suspension of effort to secure legislation of this type in this State
until after the adoption of an amendment to the constitution specifi
cally authorizing the establishment of a system of compensation for
injuries to employees “ without regard to fault as a cause thereof.”
The statute enacted in accordance with this authorization is held
constitutional by the courts of the State.96 However, the Supreme
Court of the United States found no necessity for referring to the
State constitution as authority or permission for the enactment of
the statute abrogating the common-law defenses, at least if some
reasonably just substitute is provided, such as denying the right
of a trial by jury, charging employers with the liability for injuries
to their employees due to industrial accident not caused by the will
ful intent or the intoxication of the employee, or fixing stipulated
sums as benefits for injury or death. This statute was compulsory
as to the industries to which it applied, and the classification adopted
was sustained as within the legislative power.
A compensation act of Kentucky (ch. 73, Acts of 1914) was held
invalid by the court of appeals of that State on grounds which the
Supreme Court of the United States clearly held insufficient, at
least in so far as the Federal Constitution is concerned. The statute
was elective in form, but was held to be compulsory in effect because
acceptance by the employer made the act binding upon the employee
in the absence of a notice of rejection filed before receipt of injury.97
Another objection was held to exist in the fact that the employee’s
election was binding upon his personal representative or estate in
case of his death, in violation of a provision of the State constitution.
In this State legislation has been enacted in such form as to avoid
the conflict with the State constitution, and the new enactment has
been held valid.98
The Texas compensation law was attacked on the same grounds in
part as that of Kentucky, the provision making the statute binding
on employees on its acceptance by the employer being challenged m
denying equal rights to the two parties. The court of civil appeals
held this provision of the law unconstitutional.99 The supreme court
of the State, however, reversed this decision, upholding the law in
all its parts.1
The most recent compensation law to be declared unconstitutional
in its entirety was an Arizona enactment of 1921 (ch. 103), the diffi
90 Jensen v . So. Pac. Co. (1915), 215 N, Y. 514, 109 N. E. 600; N. Y. Cent. R. Co. v .
White (1915), 216 N. Y. 653, 110 N. E. 1051. The latter case affirmed (1917), 24a
U. 97S.Kentucky
188, 87 Sup.
247. Co. v . Workmen’s Compensation Board (1914), 161 Ky. 62,
State Ct.
Journal
170 S. W. 437, 1166.
98 Greene v . Caldwell (1916), 170 Ky. 571, 186 S. W. 648.
99 Middleton v . Power & Light Co. (1915) (Tex. Civ. App.), 178 S. W. 956.
1 Same case (1916), 108 Tex. 96, 185 S. W. 556; affirmed (1919), 249 U. S. 152,
39 Sup. Ct. 227.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

culty being that the constitution of the State specifically provides
that “ no law shall be enacted in this State limiting the amount of
damages to be recovered for causing the death.or injury of any
person ” ; also that “ the right of action to recover damages for injuries
shall never be abrogated, and the amount recovered shall not be sub
ject to any statutory limitation.” These provisions were held to
make it impossible for the legislature to enact a law limiting recovery
by the establishment of the fixed awards which are a constituent part
ox compensation legislation; and even an election prior to the
receipt of injury could not be made, since the constitution further
provides that it shall be optional for the employee to accept the
benefits under any compensation law that may be enacted or to sue
the employer for damages.2 There was a prior compensation statute,
which retained all rights of election, and in spite of the apparent
double liability, condemned by the Supreme Court of Montana in
the Cunningham case, the Supreme Court of the United States had
held this statute constitutional.3 Four Justices of the Supreme
Court dissented in regard to this, however, as imposing a new liability
upon the employer without exempting him from any formerly im
posed. “ He is given no quid pro quo for his new burden; the com
mon-law rules have been set aside without a reasonably just sub
stitute.”
The repeal of the earlier Arizona law by the one held unconstitu
tional is ineffective, in view of the unconstitutionally of the latter,
so that the earlier law continues in force (p. 9).
The foregoing cases, with perhaps a single exception, involved the
constitutionality of the statutes in their entirety, the objectionable
features being regarded as vital to the whole law. In several in
stances, however, unessential parts of laws or amendments to earlier
laws have been regarded as invalid, but their rejection did not
necessitate the setting aside of the principal statute. Thus the
Louisiana compensation law (No. 247, Acts of 1920) gave to the
district courts of parishes the duty of determining the solvency of
applicants for the right to carry self-insurance. This provision was
held unconstitutional as devolving other than judicial duties upon
the judges, which the State constitution prohibits.4 Somewhat
similar to this was a situation which arose under the Tennessee
statute. (Ch. 123, Acts of 1919.) This law allowed specific fees for
judges passing on contested or litigated cases, a provision which was
found to violate the State constitution, whicn prohibits any change
in a judge’s salary during the term for ^hich he was elected.5
In neither of the above cases was the provision vital, but being
severable the act in general was not affected.
Kansas, in common with a number of other States, established for
nonresident alien beneficiaries a different treatment than for de
pendents residing in the United States. The law of this State pro
posed to pay smaller amounts than to residents—a provision which
was held invalid as conflicting with the treaty with Italy which pro
vided that recovery for injury or death of the citizens of the respective
nations should not be restricted on account of nationality.6 The act*8
2 Industrial Commission v . Crisman (1921), 22 Aria. 579, 199 Pac. 390.
8 Arizona Copper Co. v . Hammer (1919), 250 U. S. 400, 39 Sup. Ct. 553.
* In re Southern Cotton Oil Co. (1920), 148 La. 69, 86 So. 656.
8 Scott v . Nashville Bridge Co. (1920), 143 Tenn. 86, 223 S. W. 844.
* Vietti v . Fuel Co. (1921), 109 Kansas 179, 197 Pac. 881.

W O R K M E N ’s COMPENSATION.

was also held to contravene the provisions of the fourteenth amend
ment which called for general protection of the laws for all persons
within the jurisdiction of any State. Conflict with the Italian treaty
was assigned by a Pennsylvania court of common pleas as ground
for holding an exclusion provision of the State law unconstitutional.
(Liberato case, 1922.) It may be added that restricted legislation
elsewhere has been construed without apparent challenge on either
of the above grounds.7
Not affecting aliens but involving the question of extrastate appli
cation was an amendment (ch. 586, Acts of 1917) to the compensation
law of California which undertook to give to all employees resident
of the State a right to benefits under the act, no matter where the
injury might occur, in case the contract of hire was made in the State.
This was declared unconstitutional as a discrimination between citi
zens of other States who might be resident within the State and
citizens who were nonresident working under a similar contract.8
On rehearing the supreme court of the State decided that the legis
lature had power to regulate contracts made within the State
boundaries but must afford equal treatment to all affected, so that,
instead of declaring the statute void, only the limitation was declared
invalid, and it was broadened so as to include nonresidents as well as
residents who might make contracts within the State.9
Another feature of the California law that came up for considera
tion was one of the act of 1913 that declared the liability of principals
and contractors other than the immediate employer, such remedies
being administered by the commission. This provision was held to
be unconstitutional on the ground that the legislature was not author
ized to confer upon the industrial commission any authority to settle
liabilities against persons not employers, since the constitutional
amendment under which the act was authorized only permitted the
legislature to “ create and enforce a liability on the part of all em
ployers to compensate their employees ” for injury.10 An act of 1917
retained a provision as to the liability of 46principal employers and
contracting employers, general or intermediate, for compensation
under this act when other than the immediate employer of an in
jured employee.” This was held to be unconstitutional in so far as
it attempts to authorize an award of compensation against a third
person who is not an employer, for the same reason as above.11
A third case involving California legislation relates to an act of
1919 (ch. 183) which undertook to provide a rehabilitation fund by
levying payments in cases of fatal injuries where no dependents were
found. This was said to be an effort to impose a tax not authorized
by the constitution, as compensation charges were to be for benefits
for one’s own employees and their dependents, and not for general use.
The act was therefore declared unconstitutional.12 This finding cor
responds with that of the New Jersey qourts, which held unconsti
tutional an act (ch. 203, Acts of 1918) which required employers to
pay the sum of $400 to an administration fund in cases where an
employee was fatally injured but left no dependents. This was said
7 Gregutis v . Waelark Wire Works (1914), 86 N. J. L. 610, 91 Atl. 98, 92 Atl. 354.
8 Quong Ham Wah Co. v. Industrial Accident Commission (1919), 59 Calif. Dec. 18.
9 Same case (1920), 184 Calif. 26, 192 Pac. 1021.
10 Carstens v . Pillsbury (1916), 172 Calif. 572, 158 Pac. 218.
11 Perry v . Industrial A ccident C om m ission (1919), 180 Calif. 497, 181 Pac. 788.
“ Yosemite Lumber Co. v . Industrial Accident Commission (1922), 187 Calif. 774, 204
Pac. 226.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

to be a tax without relation to the police power, not a property tax,
and not based on any proper classification. “ From another stand
point the act seems to be simply a taking of the property of this class
of employers [of workmen without dependents] without any compen
sation therefor.” The act was therefore held invalid.13
These decisions are in contrast with one of the Supreme Court of
New York, appellate division, in which an act of the legislature of
that State (ch. 760, Acts of 1920) was under consideration. This act
provides for a contribution of $900 for a special rehabilitation fund
where an injured workman dies leaving no dependents. This act
was said to be constitutional.14 An amendment of the New York
law (ch. 622, Acts of 1916) provided for the accumulation of a fund
from the same source as above, to be used for the payment of bene
fits where a second injury resulted in total disability. This also
was held by the State court of appeals to be valid legislation, not
differing in principle from the other provisions of the act, and within
the letter and spirit of the constitution.15 A similar provision of
the compensation law of Utah was held constitutional by the supreme
court of that State.16 On the other side must be counted the Court
of Appeals of Kentucky, which declared a similar provision in the
compensation act of 1914 of that State to be unconstitutional, since
the legislature did not have “ the right to take what is due the estate
of one man and give it to another.” 17
A different aspect of the question of compensation is involved in
the case of maritime workers and those engaged in interstate com
merce. The New York compensation law of 1914 undertook to cover
longshoremen and the operation of vessels; railroad labor was also
held to be covered by the act in regard to injuries not covered by
the Federal (liability) act.18 The Supreme Court of the United
States denied the power of the State to legislate with regard either
to maritime employments as such, or to interstate commerce, holding
the acts unconstitutional in so far as they purported to authorize any
interference with the uniformity of the maritime law or the pro
visions of the Federal employers’ liability act.19
After the decision in the Jensen case, Congress undertook to amend
the Judicial Code so as to enable State laws to afford relief in mari
time cases, setting their rights under the compensation law of the
State in whose waters they were employed alongside admiralty and
the common law as an optional mode of relief. (Act of October 6,
1917, 40 Stat. 395). The Supreme Court of the United States de
clared this amendment unconstitutional, since though Congress could
enact a law affecting maritime workers, it could not confer upon the
States the power to enact legislation governing a subject over which
they had no control under the Federal Constitution.20 In this connec
*3 Bryant v . Lindsay (1920), 94 N. J. L. 357, 110 Atl. 823.
14 Watkinson v . Hotel Pennsylvania (1921), 187 N. Y. Supp. 278.
15 Industrial Commission v . Newman (1918), 222 N. Y. 363, 118 N. E. 794.
16 Salt Lake City v . Industrial Commission (1921), — Utah — , 199 Pac. 152.
17 Kentucky State Journal Co. v . Workmen’s Compensation Board (1914), 161 Ky. 62,
170 S. W. 1166.
18 Jensen v . Southern Pac. Co. (1915), 215 N. Y. 514, 109 N. E. 600; Winfield v . N. Y.
Cent. & H. R. Co. (1915), 216 N. Y. 284, 110 N. E. 614.
19 So. Pac. Co. v . Jensen (1917), 244 U. S. 205, 37 Sup. Ct. 524; New York C. R. Co.
r. Winfield (1917), 244 U. S. 147, 37 Sup. Ct. 546.
20 Knickerbocker Ice Co. v . Stewart (1920), 253 U. S. 149, 40 Sup. Ct. 438; see also
Sudden & Christenson v . Industrial Accident Commission (1920), 182 Calif. 437, 188 Pac.
803, in which the Supreme Court of California took the same view at a somewhat earlier
date.

INSPECTION AND REGULATION OE WORK PLACES.

tion may be noted a second amendment to the same sections of the
Judicial Code, by which Congress has undertaken to give to the States
jurisdiction over such maritime workers as are nonperipatetic, having
a fixed domicile and potentially chargeable to the local authorities
in case of disability and impoverishment. (Act of June 10, 1922,
Pub. No. 239.)
PEN SIO NS AND INSURANCE SYSTEMS.

The Legislature of Arizona (p. 10, Acts of 1915) undertook to
establish a system of old age and mothers’ pensions. The supreme
court held the law invalid, since “ while the object of the act is easily
determinable from its title and context, the lack of a clear state
ment of the means and methods of its enforcement, we think, must
necessarily result in its defeat.” The title of the act also failed to
disclose the nature of its provisions, violating a specific requirement
of the State constitution.21
The matter of providing old-age pensions for employees of the
State and its political subdivisions was considered by the Legisla
ture of New Hampshire, and the question was referred to the su
preme court of the State as to the constitutionality of measures look
ing to such ends. A peculiar provision of the constitution was
found to be an insurmountable obstruction, that instrument prohibit
ing the granting of any pension “ for more than one year at a time.”
This restriction on the legislature made it likewise impossible for it
to delegate any larger authority to any municipality or other agent,
neither could the legislature by separate acts at its biennial sessions
grant a pension for separate successive years.22
Another case that may be noted under this head is one involving
the constitutionality of an ordinance of the city of Schenectady, N. Y.
This ordinance undertook to provide for group insurance for cer
tain officers and employees of the city, but was held by the supreme
court of the State in special term to be void as not within the scope
of the city’s powers; neither was such power conferred by the work
men’s compensation law of the State, which relates only to hazard
ous employments; nor does the “ home rule ” law authorize such
action; neither can it be sustained as a payment of wages.23
INSPECTION AND REGULATION OF WORK PLACES.

The physical conditions affecting workpeople in their places of
employment are the subject of laws known as inspection laws, the
fundamental principle of which is that the State may properly act to
secure the health and safety of employees, and such laws are uni
versally recognized as being valid. Defects of discrimination or im
proper classification, however, have caused some of the laws of this
particular class to be declared unconstitutional.
F

An act of the New York Legislature (Acts of 1884, ch. 272) which
made it a misdemeanor to manufacture cigars in any city of more
than 500,000 population in any tenement house occupied by more
21 State Board of Control v . Buckstegge (1916), 18 Ariz. 277, 158 Pac. 837.
22 In re Opinion of the Justices (State and Municipal Pensions) (1917), 78 N. H. 617,
100 Atl. 49.
23 People ex. rel. Terbush & Powell v . Dibble (1921), 189 N. Y. Supp. 29; affirmed by
appellate division in. a memorandum decision (1921), 186 N. Y. Supp. 951.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

than three families, but excepting houses in which there was on the
first floor a store for the sale of cigars and tobacco, was declared un
constitutional because of such discrimination.24 The factory-inspec
tion law of California (act of Feb. 6, 1889) provided that cer
tain installations might be required if, in the opinion of the factory
inspector, their use would to a great extent prevent unhealthful con
ditions. It was held that this law was a delegation of legislative
authority to an executive officer whose proper duties were to en
force prescribed regulations, and it was for that reason declared un
constitutional in so far as this provision extended.25
The Legislature of Illinois undertook to prohibit the use of emery
wheels or belts and similar wheels or belts “ in any basement, socalled, or in any room lying wholly or partly beneath the surface
of the ground.” (Acts of 1911,* p. 314). The question of constitu
tionality being raised on account of invalid classification, the act
was declared void. In the case in hand it was shown that there
was thorough ventilation by the use of exhaust fans, while the act
would permit the use of identical devices in any room above ground
no matter how poorly ventilated or lighted. The basis of the law
was therefore not one of proper classification.26
A Minnesota statute (ch. 514, Acts of 1919, amended by ch. 481,
Acts of 1921) undertook to require railroad companies to erect shel
ters or shops for the repair of cars, etc., at points where as many
as six men were employed for not less than 30 days. Various de
tails of construction, sanitation, etc., were prescribed, the building
or buildings to be such that “ all employees engaged in such work
shall be protected from heat, rain, cold, snow, or other inclement
weather, while working at such work.” The constitutionality of
the act was challenged on numerous grounds, many of which were
rejected. However, it was held by a United States district court
that the act was in conflict with the provision of the Federal safety
appliance act which requires defective cars on lines of interstate
carriers to be repaired at the place where they are discovered to be
defective, if feasible, otherwise at the nearest available repair point;
also that the provision above quoted as to protection from the weather
was too vague and indefinite to be used as a basis for criminal prose
cution, such as the law contemplated. The entire statute was there
fore declared void.27
Laundrymen have been a special object of legislation found un
constitutional in a few instances. Thus section 4079 of the Political
Code of Montana contained a provision that male persons engaged
in the laundry business other than in steam laundries should pay a
license fee of $10 per quarter, or if more than one person was en
gaged, of $25 per quarter; such fee to permit the operation of one
place of business only. The license fee for steam laundries was
fixed at $15 per quarter, regardless of the number of employees. A
Federal court declared this law violative of the provisions of the
fourteenth amendment, as discriminating against one class of laun
drymen and in favor of another.28 An ordinance of the city of San
Francisco which gave the city board of supervisors discretion to
24in re Jacobs (1884), 33 Hun. 374; affirmed (1885), 98 N. Y. 98, 50 Am. Rep. 636.
25 Schaezlein v . Cabaniss (1902), 135 Calif. 466, 67 Pac. 755.
People v . Schenck (1913), 257 111. 384, 100 N. E. 994.
27 Chicago & N. W. R. Co. v . Railroad & W. Commission (1922), 280 Fed. 387.
2« In re Ynt Sang (1896), 75 Fed. 983.

INSPECTION AND REGULATION OF WORK PLACES.

grant or withhold licenses for laundries unless located in buildings
of brick or stone was brought to the attention of the Supreme Court
of the United States and was there condemned as invalid. In op
eration there was an admitted discrimination against the Chinese 7
licenses being granted to Caucasians under identical conditions as
those prevailing in cases in which they were uniformly denied to
the Chinese. On this showing the court condemned the ordinance,
laying it down as a principle of law that it was a violation of the
fourteenth amendment to give to any man or set of men absolute
and unrestrained discretion to give or to withhold permission to
carry on a lawful business in any place, citing the language of the
Massachusetts bill of rights that government should “ be a gov
ernment of laws and not of men.”29 A statute of the Territory of
Hawaii declared that “ it shall be unlawful for any person to eject
water or other fluid from his mouth upon any clothing,” etc., in
ironing or preparing for ironing the same. Whether or not a prop
erly drawn law of this intent would be constitutional was not de
cided by the court, but since by its terms it would restrict one from
sprinkling his own clothing in his own way it was declared to be
an unwarranted interference with individual rights.30
Section 10089 of the Revised Statutes of Missouri prescribed pro
visions for plumbing and ventilation in biscuit, bread, and cake
bakeries, but made no mention of pie and pastry bakeries, cracker
bakeries, or confectioneries. The court held that such omission
amounted to an unjustifiable discrimination between industries of
like nature, denying the equal protection of the law, and the statute
was declared to be unconstitutional.31
S

A number of States have laws requiring the provision of inclosed
vestibules or platforms on street cars for the protection of motormen
from the inclemency of the weather, and such laws are regarded as
valid. A Texas statute (ch. 112, Acts of 1903) was so drawn as to
be applicable only to corporations operating street railways, thus
relieving firms or individuals carrying on a similar undertaking
from the necessity of making such provision. For this discrimina
tion and because of vagueness and uncertainty in defining what
would constitute an offense against the lawr it was declared uncon
stitutional.32
M

Similar to the sanitary features of factory-inspection laws was a
provision of an Illinois law (act of May 14, 1903) requiring owners
or operators of coal mines to maintain wash rooms at their mines for
the use of miners and as a place for drying their clothes. This was
condemned as special legislation, the court holding that the condi
tions of employment of miners were not so different from the condi
tions in other occupations in respect of the matter sought to be
remedied as to warrant such a discrimination as was attempted by
29 Yick Wo v . Hopkins (1886), 118 U. S. 356, 6 Sup. Ct. 1064.
80 Hawaii v . Ching Geung (1899), 11 Hawaii Reports 667.
a State v. Miksicek (1910), 225 Mo. 561, 125 S. W. 507.
“ Beaumont Traction Co. v . State (1909) (Tex. Civ. App.), 122 S. W. 615.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

this statute.33 The Kentucky Legislature of 1920 (ch. 20) enacted
r law of like effect, to be operative in any particular case on vote
of 30 per cent or more of the employees requesting such accommo
dations. This was held by the court of appeals of the State to
violate a provision of the State constitution which restricts legisla
tion the actual operative effect of which is conditioned on other
than direct action by the legislature itself, none of the other points
raised by the opponents of the law being considered.34
In this connection may be noted an Indiana statute (sec. 8623,
Burns’s R. S.), which likewise called for the construction of a wash
room at any mine where a designated portion of the employees re
quested it. The nature of the employment was said to warrant the
requirement of such a building, if the legislative judgment found the
facts such as to lead to that conclusion.35 The State constitution
contained a provision similar to that of Kentucky, noted above, but
it was held that this was not violated by the condition in the statute
making it applicable on petition. The Supreme Court noted this
contention, but did not pass upon it, as it was a question under the
State constitution, no Federal question being involved. The gen
eral principles involved were sustained, thus controverting the posi
tion of the Illinois court in regard to the question of classification.
LABOR ORGANIZATIONS.
A

Several laws have been enacted the object of which was to procure
to workmen certain privileges and immunities not allowed to other
persons combining for the prosecution of a common purpose. A
number of States have enacted antitrust laws for the purpose of
restricting combinations to fix prices, and some of these have specifi
cally exempted from their restrictions combinations and agreements
to fix the rates of wages. Thus the antitrust law of Illinois (act of
June 11, 1891) prohibited agreements by corporations, partnerships,
or individuals for the regulation of the price of any article of mer
chandise or commodity. This was amended on June 10, 1897, by
exempting agreements in regard to the production of articles the
cost of which is mainly made up of wages, making it not unlawful
for agreements to be made, “ the principal object or effect of which
is to maintain or increase wages.” This amendment was declared
unconstitutional as making an unlawful discrimination in favor of
the exempted persons, no proper basis or classification being shown.36
The decision in this case was based on one by the Supreme Court of
the United States37 involving an exemption to the antitrust law of
Illinois affecting agriculturists and stock raisers, the principle being
the same though applied to a different subject matter.
The antitrust law of Nebraska (ch. 79, Acts of 1897) contained an
exception with reference to labor, and was for that reason declared
by the Federal court to be invalid on account of its discriminations,38
83 Starne v . People (1906), 222 111. 189, 78 N. E. 61.
a* Commonwealth v . Beaver Dam Coal Co. (1922), — Ky. — , 237 S. W. 1086.
as Booth v . State (1913), 179 Ind. 405, 100 N. E. 563; affirmed (1915), 237 U. S. 391,
35 Sup. Ct. 617. S e e a l s o State v . Reaser (1915), 93 Kajxs. 628, 145 Pac. 733.
88 People v . Butler Street Foundry Co. (1903), 201 111. 236, 66 N. E. 349.
w Connolly v . Pipe Co. (1902), 184 U. S. 540, 22 Sup. Ct. 431.
88 Niagara Fire Ins. Co. v . Cornell (1901), 110 Fed. 816.

LABOR ORGANIZATIONS.

though the supreme court of the State sustained the law on the
ground that it regulated only dealing in goods, and that labor and
skill not being articles of commerce, the exception as to labor was
reasonable and valid.89
T

The right of labor organizations to adopt, use, and protect from
imitation or unauthorized use a label or trade-mark is secured to
these organizations by the statutes of a number of States, such laws
having been upheld as constitutional in several jurisdictions.*40 The
law of New Jersey, however (Acts of 1898, p. 83, sec. 10), providing
for the recovery of damages and costs and expenses in cases where a
properly registered label had been unlawfully used, and also for the
recovery of a penalty in an amount of not less than $200 nor more
than $500 in an action for debt, was held to be unconstitutional in
respect of the latter provision. In an ordinary action for debt a
plaintiff must determine the amount to be sued for before the action
is begun, to which claim the defendant is entitled to offer exceptions,
the result to be ultimately determined by the court; by this statute,
however, the amount of the penalty to be sued for in an action for
debt was fixed, not by the statute nor by the court, but by the claim
ant, ex parte, devolving upon a private person the duty or power of
weighing the public considerations on which the penalty should be
measured. Such power being either a legislative or a judicial func
tion, it could not be exercised by the person for whose benefit it was
to be exercised, but only by a proper public agency, so that the law
could not stand.41
The right to wear the badge of labor and other organizations was
the subject of a statute of Montana (Penal Code, sec. 1192, amended
by ch. 18, Acts of 1907), the statute prohibiting the unauthorized
wearing of such badges. This law was declared unconstitutional on
the ground that it was delegated legislation, inasmuch as the right to
wear such a badge and the penalty for wrongfully wearing it were
made dependent upon the by-laws, rules, and regulations of the or
ganization and not on any general and public rule. It was also said
that the law was violative of the provisions of the fourteenth amend
ment as to the equal protection of the law.42
U

The question of the power of a city council to require all contracts
for public printing to be let to parties authorized to affix thereto the
union label has been a subject of consideration in a few cases. In
passing upon an ordinance of this sort the supreme court of Illinois
held that the council and officers of the city could not thereby be
authorized to award a contract for printing to any other than the
lowest responsible bidder, such being the requirement of the laws
of the State. The ordinance was further condemned on the ground
89 Cl el and v . Anderson (1902), 66 Nebr. 252, 92 N. W. 306.
40 Cohn v . People (1894), 149 111. 486, 3T N. E. 60; State v . Bishop (1895), 128 Mo.
373, 31 S. W. 9; Perkins v . Heert (1899), 158 N. Y. 306, 53 N. E. 18.
« Cigar Makers’ I. U. of A. v . Goldberg (1905), 72 N. J. L. 214, 61 Atl. 457.
42 State v . Holland (1908), 37 Mont. 393, 96 Pac. 719.

11934°—22-----6

LABOR LAWS DECLARED UNCONSTITUTIONAL.

that it was an agreement with a certain class of persons doing print
ing to have such work done only by them, in violation of common
rights, and tending to create a monopoly.43
A similar decision has been rendered by the courts of New Jersey
involving an ordinance of the same type.44 The charter of Nashville,
Tenn., required bids to be procured on all goods and supplies
furnished the city of a value of $50 or more. The city council
adopted an ordinance requiring the union label to be affixed to all
public printing; this was held unconstitutional and contrary to pub
lic policy, being discriminatory in character and likewise contraven
ing the charter provision noted since it limited bids to a certain class of
printers.45 The same position was taken by the Supreme Court of
Georgia with reference to a similar ordinance of the city of Atlanta.4*
U

A statute of Nebraska calling for the employment of union labor
on the streets, sewers, etc., of cities of the second class was declared
invalid as tending “ to exclude bidders by providing that laborers
shall belong to a certain restricted class.” 47 A similar judgment was
reached by the Supreme Court of Illinois with reference to an ordi
nance of the city of Chicago directing the employment of union work
men exclusively on public works, the reasons assigned being the
same as those given in the Nebraska case.48 This latter decision
would necessarily be anticipated from an earlier decision by the
same court against the validity of a rule of the board of education
of the city of Chicago by which it undertook to restrict bids for the
construction of school buildings, etc., to contractors employing only
union labor, this rule being a restriction that the legislature itself
could not have constitutionally adopted.49 Similar views were taken
of the rules of city boards of like intent by the Supreme Courts of
Michigan and Montana.50
P

A number of legislative bodies have enacted laws with the object
of protecting the members of labor organizations, forbidding em
ployers to discharge workmen on account of their membership in
such organizations or to prevent or attempt to prevent employees
from forming or joining them. Coercion or attempted coercion by
discharge or threats of discharge on account of connection with any
lawful labor organization were provided against in terms in some of
the statutes and damages allowed for any discharge because of
membership. Statutes of this class which have been declared un
constitutional were enacted in Colorado (ch. 5, Acts of 1911), Kansas
(ch. 120, Acts of 1897), Minnesota (ch. 174, Acts of 1895), Missouri
(Act of March 6, 1893), Nevada (ch. Ill, Acts of 1903), New York
(Penal Code, sec. 171a), Ohio (Act of April 14, 1892), Oklahoma
« Holden v . City of Alton (1899), 179 111. 818, 53 N. E. 556.
44 Paterson Chronicle Co. v . Paterson (1901), 66 N. J. L. 129, 48 Atl. 589.
45 Marshall & Bruce Co. v . City of Nashville (1903), 109 Tenn. 495, 71 S. W. 815.
« c ity of Atlanta v . Stein (1900), 111 Ga. 789, 36 S. E. 932.
47 Wright v . Hoctor (1914), 95 Nebr. 342. 145 N. W. 704.
48 Fiske v . People (1900), 188 111. 206, 58 N. E. 985.
4« Adams v . Brenan (1898), 177 111. 194, 52 N. E. 314.
80 Lewis v . Board of Education (1905), 139 Mich. 306, 102 N. W. 756; State v .

(1901), 26 Mont. 22, 66 Pac. 496.

Toole

LABOR ORGANIZATIONS.

(p. 513, Acts of 1907, 1908), Pennsylvania (Act of June 4, 1897),
Wisconsin (ch. 332, Acts of 1899), and United States (Act of June
1, 1898, 30 Stat, 428),
There is little variety in the reasons given for declaring these laws
unconstitutional. Though not the earliest, the controlling opinion
is that of the Supreme Court of the United States declaring the
Federal law invalid. The uniform principle laid down is that the
right of an employee to continue service so long as mutually agree
able to himself and his employer is a right of personal liberty and
of property, so long as he does nothing reasonably forbidden and
injurious to public interest; and that he has a right to make or termi
nate contracts at will, subject only to such conditions as are agreed
to by contract or as are enacted by the State applicable to all persons
in like conditions. The employer has the same right in regard to
making and terminating a contract of employment with his employee.
It is within the power of either to terminate the employment for
any reason or no reason, subject only to liability for damages where
a contract is violated. Laws forbidding the discharge of a work
man for any specific reason are therefore discriminatory and class
legislation, and are also void as infringing upon the rights of em
ployers and workmen in the formation of contracts, violating the
provisions of the State and Federal Constitutions as to equality of
rights, and not capable of support as police regulations.51
The exception to the uniformity of rejection of these laws was a
decision by an Ohio court, in which it was said that the law was
constitutional since it did not interfere with the right to discharge,
which right the employer might exercise for any reason whatever,
but only prohibited him from coercing or attempting to coerce an
employee into quitting a union.52 The same view was taken by the
Supreme Court of Kansas with regard to sections 4674, 4675, General
Statutes of 1909.53 Such a construction, though saving the law,
would leave it without practical effect; but even this shadowy status
wras denied the Kansas law in a decision by the Supreme Court of the
United States.54
In this connection may be noted a proposed measure of the Massa
chusetts Legislature, referred to the supreme court in advance on
The question of its constitutionality, which would bar any action
against associations of employers or employees, or against any mem
bers or officials thereof, on account of tortious acts alleged to have
been committed by or on behalf of such associations. This bill was
practically identical in form and effect with the first paragraph of
the fourth section of the British trades disputes act of 1906. How
ever, the supreme court of the State held that it would arbitrarily
give immunity to certain individuals, exempting them from restric
tions and penalties to which the public generally was subject, thus
51 Adair v . United States (1908), 208 U. S. 161, 28 Sup. Ct. 27T ; People v . Western
Union Telegraph Co. (1921), 70 Colo. 90, 198 Pac. 146; Gillespie v . People (1900), 188
111. 176, 58 N. E. 1007; Coffeyville Brick & Tile Co. v . Perry (1904), 69 Kans. 297, 76
Pac. 848 ; State v . Daniels (1912), 118 Minn. 155, 136 N. W. 584 ; State v . Julow (1895),
129 Mo. 163, 31 S. W. 781; Goldfield Consolidated Mines Co. v . Goldfield Miners’ Union
(1908), 159 Fed. 500 (Nev. Statute) ; People v . Marcus (1906), 185 N. Y. 257, 77 N. E.
1073; State v . Bateman (1900), 10 Ohio S. & C. P. Dec. 68; Jackson v . Berger (1915),
92 Ohio St, 130, 110 N. E. 732; Bemis v . State (1915), 12 Okla. Cr. 114, 152 Pac. 456;
Commonwealth v . Clark (1900), 14 Pa. Super. Ct. 435; State v . Kreutzberg (1898), 114
Wis. 530, 90 N. W. 1098.
62 Davis v . State (1893), 30 Wkly. Law Bui. 342.
63 State v . Coppage (1912), 87 Kans. 782, 125 Pac. 8.
84 Coppage v . Kansas (1915), 236 U. S. 1, 35 Sup. Ct. 240.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

establishing discriminations and inequalities offensive to the Con
stitution. it would legalize acts burdensome to those not members of
the associations and establish unequal rights and privileges between
employers and employees within and those outside of such associa
tions. It was therefore unanimously rejected by the bench.5556
NOTICE OF LABOR DISPUTES.

Less closely related to the subject, but perhaps subject to mention
here, was an act of the Illinois Legislature of 1899 (act of April 24),
which declared it unlawful for an employer to bring workmen from
another State or place in the State under misrepresentations or false
pretenses as to the kind and character of the work, failure to give
notice of a labor dispute being declared to be misrepresentation.
This was said by the supreme court of the State to impose upon cer
tain employers an obligation and liability not required of others,
since the act was limited to the employment of workmen, not apply
ing to other classes of employees; and applying only to such workmen
as may change from place to place within the State or may be
brought into the State from without.50 The reasons given were
therefore to some extent based on a strict construction of the language
of the law, and over against this decision may be set a number in
which similar statutes have been held constitutional.57
INJUNCTIONS AND CONTEMPTS.

Legislation regulating injunctions and punishment for contempt
of court is much broader than its application to the field of labor,
but on account of the use made of injunctions in labor disputes sev
eral enactments have been made or proposed directed specifically
to the subject of the issue of injunctions and the punishment of con
tempts in cases involving the activities of labor unions and their
members. Thus the regulation of the use of injunctions in cases of
strikes, etc., was attempted by a statute of California (Acts of 1903,
ch. 235, Sims’ Penal Code, p. 581), which provides that “ no agree
ment, combination, or contract by or between two or more persons
to do or procure to be done, or not to do or procure not to be done,
any act in contemplation or furtherance of any trade dispute be
tween employers and employees in the State of California shall be
deemed criminal, nor shall those engaged therein be indictable or
otherwise punishable for the crime of conspiracy, if such act com
mitted by one person would not be punishable as a crime, nor shall
such agreement, combination, or contract be considered as in re
straint of trade or commerce, nor shall any restraining order or
injunction be issued with relation thereto.” In a strike case in which
boycotting and picketing were charged, the claim was made that
an injunction was specifically forbidden by the above act. The
supreme court of the State held that the law could not be construed
as undertaking to prohibit a court from enjoining wrongful acts;
and if it could be so construed it would be to that extent void because
as in re Opinion of the Justices (Liability of associations for tortious acts) (1912),
211 Mass. 618, 98 N. E. 337.
56 Josma v . Car & Foundry Co. (1911), 249 111. 508, 94 N. E. 945.
Commonwealth v . Libbey (1914), 216 Mass. 356, 103 N. E. 923; Riter-Conley Mfg.
Co. v . Wryn (1918), — Okla. — , 174 Pac. 280; Biersach & Neidermeyer Co. v . State
(1922), — Wis.
188 N. W. 650.

INJUNCTIONS AND CONTEMPTS.

violative of the plaintiff’s constitutional rights of liberty and pro^
tection.58 The same contention as to the power of the court to issue
an injunction was made in a later case before the same court. In
this case the court held that if this contention as to the force of
the statute was a correct one this provision would be void. 44Not
only would it be void as violative of one’s constitutional right to
acquire, possess, enjoy, and protect property, but as well would it
be obnoxious to the Constitution in creating arbitrarily and without
reason a class above and beyond the law, which is applicable to all
other individuals and classes. It would legalize a combination in
restraint of trade or commerce entered into by a trades-union which
would be illegal if entered into by any other persons or associations.
It would exempt trades-unions from the operation of the general
laws of the land under circumstances where the same laws would
operate against all other individuals, combinations, or associations.
It is thus not only special legislation, obnoxious to the Constitution,
but it still further violates the Constitution in attempting to grant
privileges and immunities to certain citizens or classes of citizens,
which, upon the same terms, have not been granted to all citizens.” 59
Similarly definitive, and proposing restrictions on the issue of
injunctions, is a form of legislation that appears in the Clayton Act,
so called (38 Stat. 730), enacted October 15, 1914, by the Federal
Congress. This declares that the labor of a human being is not a
commodity or article of commerce, requires injunctions to be spe
cific, and limits their issue in cases of labor disputes to those involv
ing irreparable injury to property or a property right. Concerted
termination of employment and ceasing to patronize objectionable
parties may not be enjoined, nor may peaceful persuasion or attend
ance where one may lawfully be for the purpose of obtaining or
communicating information.
This act has been construed and tapplied by the Federal courts in
a number of cases, notably two that came before the Supreme
Court.60 A law of much the same tenor, and in fact employing in
large degree the same language, was passed by the Legislature of
Arizona (par. 1464, E. S. 1913). As construed by the supreme court
of the State, no injunction could issue in labor disputes involving
injury to property rights by picketing without actual violence,
though there was coercion and intimidation.61 This case came to
the Supreme Court of the United States, where it was held that, as
construed by the Arizona courts, the law was unconstitutional as
denying equal protection of the laws and permitting one class of
persons to inflict with impunity an injury for which others doing
like acts would be held responsible. Though similar to the Clayton
Act, the construction put upon the same words by the Arizona courts
was said to make their meaning 44as unlike as if they were in wholly
different language.” 62
The Massachusetts Legislature also enacted a law of this type (eh.
778, Acts of 1914). In a case involving the relative rights of two
labor unions the defendant union sought to justify its conduct in
58 Goldberg v . Stablemen’s Union (1906), 149 Calif. 429, 86 Pac. 324.
59 Pierce v . Stablemen’s Union (1909), 156 Calif. 70, 103 Pac. 324.
60 Duplex Printing Co. v . Deering (1920), 254 U. S. 443, 41 Sup. Ct. 172; American
Steel Foundry Co. v . Tri-City Trades Council (1921), 257 U. S. 184, 42 Sup. Ct. 72.
61 Truax v . Corrigan (1918), 20 Ariz. 7, 176 Pac. 570.
62 Truax v . Corrigan (1921), 257 U. S. 312, 42 Sup. Ct. 124.

LABOR LAWS DECLARED UNCONSTITUTIONAL.

attempting to interfere with the employment of the members of the
plaintiff union by reference to this act, which was said to preclude
an injunction restraining such interference. The State supreme
court denied this, however, holding the act unconstitutional on the
ground that, if the defendant’s contention was correct, the plaintiff
workmen would be excluded from the legal protection to which they
were entitled; since, if no injunction could be issued in their behalf,
workmen would be without protection of their right to labor, while
the property of the capitalist could be safeguarded by such process.63
The regulation of contempts has been less directly undertaken in
so far as specific language applicable to labor disputes is concerned.
However, the purpose of certain restrictive legislation is none the
less apparent, and its enactment has been the subject of special
attention on the part of labor organizations. A Missouri statute
(R. S. sec. 1617), limited punishments for contempt to a fine of not
more than $50 or imprisonment for not more than 10 days, though
both fine and imprisonment might be inflicted. Another method of
regulation was attempted by a statute of Oklahoma (ch. 13, Acts of
1895), which classified disobedience to processes or orders of the
court as indirect contempts, limited the punishment for all contempts,
as in the Missouri statute noted above, and provided that persons
charged with indirect contempt might have, if demanded, a change
of venue and a trial by jury; and the Virginia Legislature (Acts of
1897-98, p. 548) enacted a law permitting jury trials for indirect
contempts. All these laws have been declared unconstitutional as
being unwarranted interferences by one branch of the government
with the inherent rights of a coordinate branch;64 and the rule is
broadly laid down that the power to protect itself from contempts,
and also to determine what is a contempt, is inherent in every court
of superior jurisdiction, and that it is not within the power of the
legislature to prevent the one or to abridge the other.65
A Massachusetts statute (ch. 339, Acts of 1911) provided that where
the act charged as a contempt might also be punished as a#crime the
right to a trial by jury may be claimed, instead of the summary dis
position of the case by the court as for contempt. This statute was
offered as a bar to contempt proceedings in a case in which mem
bers of a union persisted in picketing an employer’s establishment
after the issue of an injunction restraining such conduct. The
supreme court of the State held that the power to punish for con
tempt is essential to the maintenance of the dignity and authority
of the courts, and is part of the fundamental law of the land, so
that “ the conclusion is inevitable that this statute is unconstitu
tional as applied to the case at bar.” 66
Though not coming strictly within the description of the laws
above considered, the Lever Food Control Act of 1917 (40 Stat. 276),
amended and reenacted in 1919 (41 Stat. 298), may here be men
tioned. It was the purpose of this act to secure continuity of pro
e3 Bogni v . Perotti (1916), 224 Mass. 152, 112 N. E. 853.
e* state v . Shepherd (1903), 177 Mo. 205, 76 S. W. 88; Smith v . Speed (1901), 11 Okla.
95, 66 Pac. 511; Carter's Case (1899), 96 Va. 791, 32 S. E. 780; Burdett v . Com. (1904),
103 Va. 838, 48 S. E. 878.
^Cheadle v . State (1887), 110 Ind. 301, 11 N. E. 426; s e e a l s o Bradley v . State (1900),
111 Ga. 168, 36 S. E. 630 ; Ex parte McCown (1905), 139 N. C. 95, 51 S. E. 957 ; Hale v .
State (1896), 55 Ohio St. 210, 45 N. E. 199; State v . Clancy (1904), 30 Mont. 193, 76
Pac. 10.
«• Walton Lunch Co. v . Kearney (1920), 236 Mass. 310, 128 N. B. 429.

ARBITRATION OF LABOR DISPUTES.

duction and to punish interference therewith, and it was used to
check a strike of coal miners in 1919. Inasmuch as this clearly gives
the act a labor status, to that extent it is of interest to note that the
statute was declared void in a case involving alleged profiteering in
the sale of food products, on the ground that it fixed no ascertain
able standard of guilt and did not meet the standard of clearness and
definiteness necessary to a penal law.67
PICKETING.

A few States have laws forbidding picketing, and so far as known
none of these have come up for a determination of constitutionality.
However, an ordinance of the city of St. Louis was passed upon by
the supreme court of the State in a way to indicate the opinion of that
court that such a statute would be set aside. The ordinance in ques
tion was one against vagrancy and loitering, and was made use of
in a strike situation to prevent picketing. As picketing had been
declared lawful in the State, this ordinance, which was assumed to
declare the contrary, was held to be unconstitutional.68 More direct
in its expression was an ordinance before the Supreme Court of
Oregon, which declared strikes illegal, forbade picketing, and de
clared that loitering or parading in front of or in the vicinity of any
store, factory, etc., was evidence of conspiracy to injure the business
patrolled. The court held that while the ordinance might constitu
tionally forbid picketing, it could not make the acts named evidence
of conspiracy, nor could it make strikes unlawful; and the provisions
being inseparable, the entire ordinance was void.69
ARBITRATION OF LABOR DISPUTES.

The arbitration of labor disputes by boards appointed in accord
ance with the provisions of laws is arranged for in a number of States.
The Missouri law on this subject (Acts of 1901, p . 195, and of 1903,
p. 218) provided that if a witness summoned by the board of arbi
tration refused to attend or to testify, the board might apply to the
circuit court, which should then issue an attachment to bring in the
witness and punish him for contempt. The statute was held to be
unconstitutional, inasmuch as the power of punishing for contempt
is not granted by legislative acts, but inheres in the courts for the
maintenance of their own authority and can not be exercised in
behalf of any other body or tribunal, even another court.70 An
attempt was made by an act of the Kansas Legislature (ch. 28,
Acts of 1898-99) to establish a body to be known as a court of visi
tation, which should have jurisdiction over railroad operations, with
power to make and enforce orders, this power extending so far as to
the appointment of a receiver for the operation of any road that
should refuse to obey the orders of this body. This so-called court
also had power to issue orders and compel their enforcement in cases
of labor disputes affecting railroad employees; while another act of
the same session gave similar authority with reference to telegraphic
service. These laws were condemned by a Federal court, and by the
67 United States v . L. Cohen Grocery Co. (1921), 255 U. S. 81, 41 Sup. Ct. 298.
es City of St. Louis v . Gloner (1908), 210 Mo. 502, 109 S. W. 30.
89 Hall v . Johnson (1917), 87 Oreg. 21, 169 Pac. 515.
70 State v . Ryan (1904), 182 Mo. 349, 81 S. W. 435.

LABOR LAW S DECLARED UNCONSTITUTIONAL.

supreme court of the State as well, on the ground that they undertook
to confer on a single body legislative, administrative, and judicial
powers in contravention of the provisions of the constitution of the
State; which forbids the conferring of inconsistent legislative and
judicial powers upon the same body to be exercised regarding the
same subject matter.71 A law of the same State (ch. 29, Acts of 1920)
establishes a so-called court of industrial relations with power to
supervise industries “ directly affecting the living conditions of the
people,” or a affected with a public interest.” It can fix wages and
working conditions; and lockouts, strikes, picketing, etc., are made
unlawful. The constitutionality of this act has been upheld.72
PROTECTION OF EMPLOYEES AS VOTERS.

An enactment of the Federal Congress (Revised Statutes, sec. 5507)
provided a penalty for threats to deprive persons of employment, or
for the refusal to renew contracts of employment, when such acts
were done as a means of intimidating employees to prevent them
from voting. On a prosecution under this statute it was declared
by the court to be outside the scope of the powers of Congress, as
granted by the fifteenth amendment, to secure to all citizens the right
to vote, without regard to race, color, or previous condition of servi
tude. The act was held to be an attempt to punish individuals who
might commit the prohibited acts on their personal responsibility,
and not as officers of any State or of the United States. It was
therefore declared void.73
Western Union Tel. Co. v . Myatt (1899), 98 Fed. 335; State
Kans. 803, 60 Pac. 1068.
72 State v . Howat (1921), 109 Kans. 376, 198 Pac. 686.
7S United States v . Amsden (1881), 6 Fed. 819, 10 Bissell 283.

Johnson (1900), 61

CASES CITED.
Page.

Adair v . United States----------------------------------------------------------------Adams v . Brenan________________________________________________
Adams v . Tanner-------------------------------------------------------------------------Ah Cue, Ex parte-------------- --------------------------------------------------------Ah Fong, In re---------------------------------------------------------------------------Allen v . Labsap *________________________________________________
Allgeyer v . Louisiana *_____________________________________i-------American Car & Foundry Co. v . Inzer------------------------------------------American Steel Foundry Co. v . Tri-City Central Trades Council *
Andrews, Ex parte *--------------------------------------------------------------------Arizona Copper Co. v . Hammer *_________________________________
Armstrong v . State---------------------------------------------------------------------Arnold v . Yanders----------------------------------------------------------------------Ashby, In re--------------------------------------------------------------------------------____
Atchison, Topeka & Santa Fe Ry. Co. v . Brown----------------------------Atchison, T. & S. F. R. Co. v. Mills---------------------------------------------Atchison, T. & S. F. R. Co. v . Sowers______________________________
Atkin v . Kansas *-----------------------------------------------------------------------Atkinson v. Woodmansee-------------------------------------------------------------Aubry, In re--------------------------------------------------------------------------------Badenoch v . City of Chicago-----------------------------------------------------Bailey v . Alabama-----------------------------------------------------------------------Bailey v . Drexel Furniture Co___________________________________
Bailey v . State *-------------------------------------------------------------------------Baker v . City of Portland-----------------------------------------------------------Baker v . Grand Rapids----------------------------------------------------------------Ballard v . Mississippi Cotton Oil Co-------------------------------------------Baltimore & O. S. W. R. Co. v . Read------------------------------------------Barbier v . Connolly *------------------------------------------------------------------Bardwell v . Mann *---------------------------------------------------------------------Beaumont Traction Co. v . State-------------------------------------------------Becker v . Hopper-------------------------------------------------------------------------Bedford Quarries Co. v . Bough----------------------------------------------------Bemis v . State----------------------------------------------------------------------------Bessette v . People---------------------------------------------------------------------Biersach & Neidermeyer Co. v. State *----------------------------------------Bofferding v . Mengelkoch-----------------------------------------------------------Bogni v. Perotti---------------------------------------------------------------------------------Booth v . State *----------------------------------------------------------------------------Braceville Coal Co. v . People--------------------------------------------------------Bradford Co. v . Heflin------------------------------------------------------------------Bradley v. State---------------------------------------------------------------------------------Brannon v . Parsons--------------------------------------------------------------------Brazee v . Michigan---------------------------------------------------------------------Broad. In re *----------------------------------------------------------------------------Brubaker v . Bennett------------------------------------------------------------------Bryant v . Lindsay----------------------------------------------------------------------Builders’ Supply Depot v . O’Connor---------------------------------------------Bunting v . Oregon *--------------------------------------------------------------------Burcher v . People-----------------------------------------------------------------------Burdett v . Commonwealth---------------------------------------------------------Burrows v . Brooks---------------------------------------------------------------------Carstens v . Pillsbury------------------------------------------------------------------Carter’s case------------------------------------------------------------------------------Case, Ex parte------------------------------------------------------------------------- - -Central Yt. R. Co. v . W hite------------------------------------------------------Chan Sing v . City of Astoria------------------------------------------------------Chapman v . Toy Long---------------------------------------------------------------Cheadle v . State-----------------------------------------------------------------------Cheek v . Prudential Ins. Co.*----------------------------------------------------Chicago, M. & St. P. R. Co. v . Westby----------------------------------------Chicago, etc., R. Co. v . Mashore-------------------------------------------------Chicago & N. W. R. Co. v . Railroad & W. Commission------------------Cigar Makers’ I. U. of A. v . Goldberg----------------’-----------------------City v . Bayley---------------------------------------------------------------------------City of Atlanta v . Stein---------------------------------------------------------City of Chicago v . Hulbert-------------------------------------------------------City of Cleveland v . Clement Bros. Const. Co-----------------------------City of Houston v . Richter----------------------------------------------------------City of Marengo v . Rowland------------------------------------------------------City of St. Louis v . Gloner----------------------------------------------------------Cleland v . Anderson*----------------------------------------------------------------Cleveland, C. C. & St. L. R. Co. v . Schuler---------------------------------Cleveland, C. C. & St. L. R. Co. v State-----------------------------------------* Indicates cases cited for purposes of explanation or comparison; other cases
those in which laws, etc., were declared unconstitutional.

78
7 9

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24
are

LABOR LAW S DECLARED UNCONSTITUTIONAL,

Coal Co. v . McGlosson*------------------------------------------------------Coal Co v . Rosser------------------------------------------------------------Coffeyville Brick & Tile Co. v . Perry______________________
Cohn v . People*___________________ ±_______________________
Cole Mfg. Co. v . Palls*______________________________________
Collett v . Scott-------------------------------------------------------------------Commonwealth v . Beaver Dam Coal C o ___________________
Commonwealth v . Boston & Maine R. Co-------------_-------------Commonwealth v . Brown---------------------------------------------------Commonwealth v . Clark------------------------------------------------------Commonwealth v . Isenberg-------------------------------------------------Commonwealth v . Libbey-----------------------------------------------------Commonwealth v . McCarthy*----------------------------------------------‘Commonwealth v Perry-----------------------------------------------------Commonwealth v . Shaleen*--------_---------------------------------------Connolly v . Union Sewer Pipe Co---------------------------------------Coppage v . Kansas-------------------------------------------------------------Cox v . R. Co----------------------- *----------------------------------------------Crane, Ex parte-----------------------------------------------------------------Cumberland Glass Mfg. Co. v . State*--------------------------------Cunningham v . N. W. Improvement Co------------------------------The Cynosure--------------------------------------------------------------------Davidow v . Wadsworth Mfg. Co-----------------------------------------Davidson v . Jennings--------------------------------------------------------Davis, Ex parte*-----------------------------------------------------------------Davis v . Holland---------------------------------------------------------------Davis v . State*-------------------------------------------------------------------Dickey, Ex parte------------------------------------------------- ---------------Dickinson v . Perry*------------------------------------------------------------Dixon v . Poe----------------------------------------------------------------------Drayton, Ex parte------------------------------------------ -------------------Ducktown Sulphur, etc., Co. v . Galloway*---------------------------Dunahoo v . Huber--------------------------------------------------------------Duplex Printing Co. v . Deering*__________________________
Durkin v . Kingston Coal Co------------------------------------------------Eden v . People-------------------------------------------------------------------Eight-Hour Bill, In re (Colo.)--------------------------------------------Elkan v . State *-----------------------------------------------------------------Epperson v . Howell------------------------------------------------------------Erie R: Co. v . New York------- :------------------------------------------Equitable Surety Co. v . Stemmons___________________________
Parb, Ex parte-------------------------------------------------------------------Fiske v . People-------------------------------------------------------------------Flukes, In re----------------------------------------------------------------------Fort Worth & D. C. R. Co. v . Loyd_________________________
Fortune v . Braswell---- -------------------------------------------------------Poster v . Police Com’rs *---------------------------------------------------Frame v . Felix-------------------------------------------------------------------Franklin v . United R. & E. Co. of Baltimore-----------------------Fraser v . McConway & Torley Co--------------------------------------Frorer v . People-----------------------------------------------------------------Gibbs v . Tally--------------------------------------------------------------------Gillespie v . People-------------------------------------------------------------Glacius v . Black *--------------------------------------------------------------Godcharles v . Wigeman------------------------------------------------------Goldberg v . Stablemen’s Union--------------------------------------------Golden v . Coal Co--------------------------------------------------------------Goldfield Consolidated Mines Co. v . Goldfield Miners’ Union.
Goode v . Nelson-----------------------------------------------------------------Grace Harbor Lumber Co. v . Ortman *------------------------------Grand Rapids Chair Co. v . Remells-------------------------------------Great Southern Hotel Co. v . Jones *-----------------------------------Greene v . Caldwell *-----------------------------------------------------------Gregutis v . Waclark Wire Works *------------------------------------Gulf, Colorado & S. P. R. Co. v . Dennis------------------------------Gulf, C. & S. F. R. Co. v . Ellis______________________________
Guy v . Baltimore--------------------------------------------------------------Hale v . State----------------------------------------------------------------------Hall v . Johnson-----------------------------------------------------------------Hammer v . Dagenhart--------------------------------------------------------Harding v . People-------------------------------------------------------------Harmon v . State-----------------------------------------------------------------Hawaii v . Ching Geung-------------------------------------------------------Heim v . McCall *-------------------------------- -------------------------------Hennington v . Georgia *-----------------------------------------------------Henry v . Campbell--------------------------------------------------------------Henry Taylor Lumber Co. v . Carnegie Institute------------------Henry & Coatsworth Co. v . Evans---------------------------------------Hess v . Denman Lumber Co_________________ ______________
Holden v . City of Alton-----------------------------------------------------Holden v . Hardy *--------------------------------------------------------------Hollman, Ex parte--------------------------------------------------------------Holton v . City of Camilla *------------------------------------------------House Bill No. 147, In re (payment of wages in scrip)------House Bill No. 203, In re (payment for coal m ined)-----------Howard v . I. C. R. Co-------------------------------------------------------Hoxie v . New York, etc., R. Co_____________________________
Hudgins, Ex parte---------------------------------------------------------------

Page.
4

21
8

2
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, 7

6
7

66
4

68
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5
5

3 6

CASES CITED,

Huntworth v . Tanner *----------------------------------------------------------------------------Hyvonen v . Hector Iron Co.*--------------------------------------------------------------------Industrial Commission v . Crisman________________________________________
Industrial Commission v . Newman *---------------------------------------------------------Ives v . South Buffalo R. Co--------------------------------------------------------------------Jackson v . Berger------------------------------------------------------------------------------------Jackson v . State------------------------------------------------------------------------------------Jacobs, In re------------------------------------------------------------------------------------------Jensen v . Southern Pacific Co.*----------------------------------------------------------------Jentzsch, Ex parte-----------------------------------------------------------------------------------Johns v . Patterson *_____________________________________________________
Johnson v . Goodyear Mining Co----------------------------------------------------------------Johnson, Lytle & Co. v . Spartan Mills *----------------------------------------------------Jones v . Great Southern Fireproof Hotel Co.*------------------------------------------ Jordan v . State----------------------------------------------------------------------------------------Joseph v . Randolph------------------------------------- ---------------------------------------------Josma v . Car & Foundry Co---------------------------------------------------------------------Juniata Limestone Co. v. Fagley--------------------------------------------------------------Keefe v . People *-------------------------------------------------------------------------------------Keen v . Mayor of Way cross---------------------------------------------------------------------Kelly v . Johnson-------------------------------------------------------------------- ------------------Kellyville Coal Co. v . Harrier_____________________________________________
Kentucky State Journal Co. v . Workmen’s Compensation Board---------------Knickerbocker Ice Co. v . Stewart------------------------------------------------- -----------Knoxville Iron Co. v . Harbison *------------------------------------------------------------Kotta, Ex parte__________________________________________________________
Kubach, Ex parte-------------------------------------------------------------------------------------Laird v . Moonan *________________________________________________________
Larsen, Ex p arte------------------------------------------------------------------------------------Laughlin v . City of Portland *-----------------------------------------------------------------Leach v. Missouri Tie & Timber Co________________________________________
Leep v . St. Louis, etc., R. Co_____________________________________________
Lewis v . Board of Education_____________________________________________
Liberato case_____________________________________________________________
Lindberg v . Peterson *------------------------------------------------------------------------------Lloyd v . N. C. R. Co.*------------------------------------------------------------------------------Lochner v . New York-------------------------------------------------------------------------------Louisville & N. R. Co. v . Baldwin------------------------------------------------------------Low v . Rees Printing Co--------------------------------------------------------------------------Lucas, Ex parte *_________________________________________________________
Luman v . Hitchens Bros. Co______________________________________________
McCown, Ex parte-----------------------------------------------------------------------------------McLean v . State *-----------------------------------------------------------------------------------Maguire, In re----------------------------------------------------------------------------------------Malette v . Spokane * _____________________________________ ________________
Mallory v . Abattoir Co.*__________________________________________________
Manford v . Memil Singh *________ :______________________________________
Manowsky v . Stephan------------------------------------------------------------------------------Marsh v . Poston & Co____________________________________________________
Marshall & Bruce Co. v . City of Nashville_________________________________
Mason v . New Orleans Terminal Co______________________________________
Massie v . Cessna------------------------------------------------- -------------------------------- Mathews v . People-----------------------------------------------------------------------------------Merced Lumber Co. v . Bruschi------------------------------------------------------------------Meyer v . Berlandi________________________________________________________
Middleton v . Power & Light Co___________________________________________
Miller v . Wilson *_________________________________________________________
M illett v . People_________________________________________________________
Mills v . Olsen____________________________________________________________
Missouri K. & T. R. Co. v . Braddy------------------------------ ------------------------------Missouri, K. & T. R. Co. v . Cade *_________________________________________
Missouri, K. & T. R. Co. v . Mahaffey *-----------------------------------------------------Missouri Pac. R. Co. v . Ault *____________________________________________
Missouri Pac. R. Co. v . Mackey *--------------------------------------------------------------Moler v . Whisman________________________________________________________
Moore v . Indian Spring Channel Gold Mining Co.*_______________________
Morgan, In re___________________________________________________________
Morin v . Nunan*_________________________________________________________
Muller v . Oregon*_________________________________________________________
Municipal Fuel Plants, In re (Mass.) (1892)-----------------------------------------Municipal Fuel Plants, In re (Mass.) (1903)____________________________
Nashville, etc., R. Co. v . Alabama-----------------------------------------------------------Newman, Ex parte_______________________________________________________
New Orleans v . Cosgrove_________________________________________________
New Orleans & N. E. R. Co. v . Harris-----------------------------------------------------New York Central R. Co. v . W hite*_______________________________________
New York Cent. R. Co. v . Winfield-----------------------------------------------------------Niagara Fire Ins. Co. v . Cornell__________________________________________
Northern Pac. R. Co. v . Washington-------------------------------------------------------Norton v . Shelby County*________________________________________________
O’Connell v . Lumber Co--------------------------------------------------------------------------Opinion of the Justices, In re (Hours of labor on public works)--------------Opinion of the Justices, In re (Liability of associations for tortious acts)
Opinion of the Justices, In re (Marking of convict-made goods)__________
Opinion of the Justices, In re (“ Railroad spotters’ b ill”) ------- :--------------Opinion of the Justices, In re (State and municipal pensions)-----------------Owens v . State__________________________________________________________ Page v. Carr— ------------------------------------------------------------------------------------- ---

Page.
34
23
70
72
— 64, 68
79
19
74
— 69,72
62
13
48
52
41
—
50
35
80
27
53
33
40
51
— 69, 72
72
52
27
.54
42
15
33
50
49
78
71
45
59
2, 5, 7. 56
24
58
19
51
82
39
24
38
42
50
43
—
51
78
64
46
35
43
42
69
4
39
43
49
45
45
49
63
19
50
55
28
— 4, 60
33
33
24
61
20
65
23, 64, 69
72
76
60
9
45
54
80
33
17
73
46
40

8 8

LABOR LAW S DECLARED UNCONSTITUTIONAL.

Palmer v . Tingle-------------------------------------------------------------Parrott, In re------------------------------------------------------------------Paschal v . State *________________________________________
Paterson Chronicle Co. v. Paterson________________________
Pearson v . Bass__________________________________________
Peel Splint Coal Co. v. State *_____ _____________________
Peonage cases------------------------------------------------------------------People v . Beattie-------------------------------------------------------------People v . Butler Street Foundry Co_______________________
People v . C. Klinck Packing Co___________________________
People v . Crane *____________ _____________________________
People v . Erie R. Co.*------------------------------------------------------People v . Hawkins-----------------------------------------------------------People v . Holder---------------------------------------------------------------People v . Lochner *----------------------------------------------------------People v . Marcus-------------------------------------------------------------People v . Orange Co. Road Const. Co--------------------------------People v . Schenck-----------------------------------------------------------People v . Warren-------------------------------------------------------------People v . Western Union Telegraph Co___________________
People v . Williams-----------------------------------------------------------People ex rel. Armstrong v . Warden *____________________
People ex rel. Cossey v . Grout_____________________________
People ex rel. Farrington v . Mensching *_________________
People ex rel. Rodgers v . Coler-----------------------------------------People ex rel. Terbush & Powell v . Dibble-------------------------People ex rel. Treat v . Coler_____________________________
People ex rel. Williams Engineering, etc., Co. v . Metz *___
Perkins v . Heert *------------------------------------------------------------Perry v . Industrial Accident Commission_________________
Petit v . Minnesota *--------------------------------------------------------Philadelphia & Reading C. & I. Co. v . Gilbert *___________
Pierce v . Stablemen’s Union----------------------------------------------Preston, In re----------------------------------------------------------------Quong Ham Wah Co. v . Industrial Accident Commission.
Quong Wing v . Kirkendall*---------------------------------------------Radford v . Clark-------------------------------------------------------------Ragio v . State------------------------------------------------------------------Rail & River Coal Co. v . Yaple*--------------------------------------Railway Co. v . Gilmore---------------------------------------------------Ramsey v . People------------------------------------------------------------Randolph v . Builders & Painters’ Supply Co---------------------Republic Iron & Steel Co. v . State----------------------------------Rhodes v . Sperry, etc., Co.*-------------------------------------------Riley, ex parte*---------------------------------------------------------------Ritchie v . People------------------------------------------------------------Ritchie & Co. v . Wayman*-----------------------------------------------Riter-Conley Mfg. Co. v . Wryn*--------------------------------------Rittenhouse & Embree Co. v . W. Wrigley, Jr., Co_________
Rogers v . Adsit--------------------------------------------------------------Ryan v . City of New York----------- -------------------------------------St. JLouis S. W. R. Co. v . Griffin-------------------------------------St. Louis S. W. R. Co. of Texas v . Hixon*________________
Salt Lake City v . Industrial Commission*----------------------San Antonio & A. P. R. Co. v . W ilson-----------------------------Saville v . Corless----------------------------------------------------------Schaezlein v . Cabaniss------------------------------------------------------Sc--*moll v . Lucht*-----------------------------------------------------------Schnaier v . Navarre Co------------------------------------------------- Scott v . Nashville Bridge Co--------------------------------------------Seattle v . Smyth-------------------------------------------------------------Second Employers’ Liability cases*---------------------------------Shaver v . Penn. Co----------------------------------------------------------Shaw v . Fisher*-------------------------------------------------------------Shortall v . Bridge, etc., C o---------------------------------------------Singer Mfg. Co. v . Fleming*-------------------------------------------Skinner v . Garnett Gold Mining Co.5----------------------------Slocum v . Bear Valley Irrigation Co---------------------------------Smith v . Kennett*— --------------------------------------------------------Smith v . Speed----------------------------------------------------------------Smith v . Texas------------------------------------------------------------- -Soon Hing v . Crowley*----------------------------------------------------Sorenson v . Webb--------- •-------------------------------------------------Southern Cotton Oil Co., In re-----------------------------------------Southern Pacific Co. v . Jensen----------------------------------------Spry Lumber Co. v . Sault Savings Bank, Loan & Trust Co.
Starne v . People-------------------------------------------------------------State v . Armstead-----------------------------------------------------------State v . Ashbrook*--------- •-----------------------------------------------State v . Barba----------------------------------------------------------------State v . Bateman-----------------------------------------------------------State v . Benzenburg-------------------------------------------------------State v . Bishop*-------------------------------------------------------------State v . Bunting*------------ ----------------------------------------------State v . Chicago, etc., R. Co----------------------------------------------State v . Clancy----------------------------------------------------------------State v . Coppage*--------------------------------------------------- --------State v . Daniels--------------------------------------------------------------

Page.

40
28
13
78
14
- 39 ,5 2
14
20
7G
62
20
59
32
42
56
79
53
74
26
- 8,79
60
34
53
9
37
73
31
3, 37, 53
77
71
62
9
81
39
71
30
33
62
61
59
39
43
47
63
12
60
60
80,
40
20
37
16, 17
16
72
49
57
74
43
21
70
54
65
66
13
52
45
. 48
48
45
82
24
62
44
70
72
40
76
14
584
79
21
77
59
59
82
79
79

CASES CITED,

State v . Fire Creek Coal & Coke Co____________________
State v . Gantz__________________________________________
State v . Gardner________________________________________
State v . Goodwill________________________________________
State v . Granneman____________________________________
State v . Haun__________________________________________
State v . Hertzog*_______________________________________
State v . Hirn___________________________________________
State v . Holland_________________________________________
State v . Howat *_______________________________________
State v . Johnson________________________________________
State v . Julow__________________________________________
State v . Justus_________________________________________
State v . Kreuzberg_____________________________________
State v . Lake Erie Iron Co______________________________
State v . Lange Canning Co.*____________________________
State v . LeBarron_______________________________________
State v . Legendre_______________________________________
State v . Loomis_________________________________________
State v . McClure*_______________________________________
State v . Miksicek----------------------------------------------------------State v . Mo. Pac. R. Co_________________________________
State v . Missouri Tie & Timber Co_______________________
State v . Moore_________________________________________
State v . Muller*________________________________________
State v . Murray________________________________________
State v . Nashville, etc., R. Co___________________________
State
SJ+nffl v■}.) Oliva----------------------------------------------------------------State v . Paint Rock Coal & Coke Co___________________
State v . Potomac Valley Coal Co_______________________
State v . Prudential Coal Co_____________________________
State v . Reaser*________________________________________
State v . Ryan____________________________________________
State v . Sharpless*_____________________________________
State v . Shepherd---------------------------------------------------------State v . Smith---------------------------------------------------------------State v . Toole---------------------------------------------------------------State v . Vann*_________________________________________
State v . Walker-------------------------------------------------------------State v . Williams (N. C .)________________________________
State v . Williams (S. C .)-----------------------------------------------State ex rel Davis-Smith Co. v . Clausen*______________
State ex rel Sampson v . City of Sheridan-----------------------State Board of Control v . Buckstegge---- ------------------------Sterling Bronze Co. v . Improvement Ass’n _______________
Stettler v . O’Hara*--------------------------------------------------------Stratman v . Commonwealth------------------------------------------Street v . Varney Electrical Supply Co----------------------------Sudden & Christensen v . Industrial Accident Commission
Sweeten v . State*----------------------------------------------------------Taft, Ex parte__________________________________________
Templar v . Board_______________________________________
Tennessee Coal, I. & R. Co. v . George----------------------------Thomas’s ca se--------------------------------------------------------------Thomas v . State*----------------------------------------------------------Timmons v . Morris______________________________________
Title Guarantee & Trust Co. v . Wrenn*-------------------------Toledo, etc., R. Co. v . Long_____________________________
Toney v . S ta te _________________________________________
Truax v . Corrigan--------------------------------------------------------Truax v . Raich_________________________________________
Tullis v . R. Co.*-----------------------------------------------------------Union Sawmill Co. v . Felsenthal-----------------------------------Union Terminal Co. v . Turner Const. Co-----------------------United States v . Amsden----------------------------------------------United States v . Howell________________________________
United States v . L. Cohen Grocery Co__________________
United States v . Reynolds--------------------------------------------Valjago v . Steel Co.*-----------------------------------------------------Vietti v . Fuel Co________________________________________
Vindicator Co. v . Firstbrook*__________________________
Vogel v . Pekoe *------------------------------------------------------------Vulcanite Paving Co. v . Transit Co______________________
Vulcanite Portland Cement Co. v . Allison Co___________
Wabash R. Co. v . Young------------------------------------------------Wagner v . City of Milwaukee----------------------------------------Wallace v . G. C. & N. R. Co----------------------------------------Walton Lunch Co. v . Kearney__________________________
Ward v . Maryland--------------------------------------------------------Waters v . W olf-------------------------------------------------------------Watkinson v . Hotel Pennsylvania *_____________________
Welton v . Missouri______________________________________
Western Union Tel. Co. v . M yatt-----------------------------------Westerfield, Ex parte-----------------------------------------------------Williams v . B aldw in_______________________________ ____
Winfield v . N. Y. Cent. & H. R. R. Co.*________________
Wiseman v . Tanner *____________________________________
Wo Lee, In re___________________________________________

Page.
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84
84
79
79
47
61
61
58
50
36
58, 75
59
50
35
60
11
52
11
33
50
47
48
76
83
19
82
21
78
12
19
11
13
3
22
73
40
61
62
37
72
54
36
18
67
12
47
13
3, 7. 81
27
63
50. 52
43
84
58
83
15
63
70
63
45
40
40
17
38
16
82
32
39
72
32
84
62
43
72
34
29

LABOR LAW S DECLARED UNCONSTITUTIONAL.

Page.
Wong Fing, Ex parte--------------------------------------------------------------------------------------------58
Wong Wing, v . United States______________________________________________________
31
32
Woodruff v . Parham---------------------------------------------------------------------------------------------Workmen’s Compensation Fund, In re (N. Y.) *___________________________________
1
Wright v . Hoctor-------------------------------------------------------------------------------------------------- 38, 78
W right v . McAdams Lumber Co----------------------------------------------------------------------------43
Yee Gee u. San Francisco_________________________________________________________
58
Tick Wo, In r e ----------------------------------------------------------------------------------------------------29
Yick Wo v . Hopkins------------------------------------------------------ ----------------------------------4, 7, 29. 75
Yosemite Lumber Co. v . Industrial Accident Commission--------------------------------------71
Yot Sang, In r e __________________________________________________________________
74

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Full text of Labor Laws That Have Been Declared Unconstitutional : Bulletin of the United States Bureau of Labor Statistics, No. 321

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