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U. S. DEPARTMENT OF LABOR
BUREAU OF LABOR STATISTICS
ROYAL MEEKER, Commissioner

BULLETIN OF THE UNITED STATES )
B U R E A U OF L A B O R STATISTI CS ]
LABOR

LAWS

OF

THE

UNITED

j WHOLE O O Q
' ’ ' \ NUMBER L u 3

STATES

SERIES:

No.

W A G E -P A Y M E N T L E G ISLA TIO N
IN




THE

UNITED

STATES

BY

ROBERT GILDERSLEEVE PATERSON

DECEMBER, 1917

W ASHINGTON
GOVERNMENT PRINTING OFFICE
1918

12




A D D IT IO N A L COPIES

O T I P BICT NMYB P OUE F O
F H UL AIO A E R C R D R M
S
T ES P R T NE TO DC MNS
H UE INE DN F OU E T
G V R MN P ININ OFC
O E N E T R T G FI E
WS INT NDC
AH GO , . .
A
T
20 C E N T S P E R C O P Y

CONTENTS.
Page.

Chapter I .— The labor contract in English and American law...........................
Early English law.........................................................................................................
First stages of law on contract..........................................................................
The ‘ ‘ Statutes of Laborers ” ..............................................................................
Freedom of contract in America..............................................................................
Court tests of freedom of contract............................................................................
Limitations by the courts........................................- ........................................
Limitations by the legislatures........................- .............................................
C hapter I I .— The courts and public opinion.............................................................
The abandonment of laissez faire............................................................................
Individual rights and freedom of contract...........................................................
Chapter I I I .— The courts and their attitude toward freedom of contract.......
Backwardness of American social legislation.......................................................
Organization of the courts..........................................................................................
Reasoning of the courts...............................................................................................
Persistence of natural-law philosophy................ ..........................................
Survival of formalism........ i ................................................................................
Legalism...................................................................................................................
Illogical separation of law and fact................................................................
Chapter IV .— Rates of wages...........................................................................................
In private employments.............................................................................................
Legal minimum wages........................................................................................
Minimum wages in foreign countries.............................................................
Minimum wages in the United States...........................................................
On public work..............................................................................................................
Wage regulation in foreign countries.............................................................
Wage regulation in the United States...........................................................
Maximum or minimum rate......................................................................
Prevailing or current rate..........................................................................
Summary..........................................................................................................................
Chapter V .— Period of payment of wages....................................................................
Legislation in European countries..........................................................................
Legislation in the United States..............................................................................
Weekly payments.................................................................................................
Biweekly payments............................................................................................
Monthly payments...............................................................................................
Summary..........................................................................................................................
Chapter Y I .— Mode of wage payments........................................................................
The English truck laws..............................................................................................
The truck system in the United States.................................................................
Payment in lawful money..........................................................................................
Summary..........................................................................................................................
Chapter Y I I .— Restrictions in the employment contract.....................................
Payment of wages due discharged employees.....................................................
Payment of wages due deceased employees........................................................
Repayment of wages advanced to employees.....................................................




3

5-19
7-10
7, 8
8-10
11-14
14-19
17
18,19
20-24
20-22
23, 24
25-32
25
25-27
27-32
27, 28
28, 29
29, 30
30-32
33-67,
33-47
34, 35
35-37
37-47
47-64
47-49
49-64
51-56
56-64
64-67
68-93
68, 69
70-93
70-76
76-88
88-92
92, 93
94-117
94-96
96-105
104-115
116,117
118-145
118-122
122,123
123-127

4

CONTENTS.

Chapter V I I .— Restrictions in the employment contract— Concluded.
Deductions from wages................................................................................................
Refusal to pay wages........................................................................ : .........................
Reduction of wages.......................................................................................................
Place of payment of wages.........................................................................................
Protection of mine labor...................................................................... .......................
Weighing coal at mines.......................................................................................
Screening..................................................................................................................
Summary..........................................................................................................................
Chapter Y I I I .— Conflict between individualism and social control.................
What is freedom in wage contracts?........................................................................
Check upon needed legislation.................................................................................
Recent liberal interpretation.....................................................................................
Chapter I X .— Changing attitude of the courts toward wage-payment legis­
lation..............................................................................................................................
First favorable American decisions........................................................................
Classes of wage-payment legislation recently sustained..................................
Regulation on public work................................................................................
Labor contracts of corporations........................................................................
Ascertainment of wages.......................................................................................
Medium of payment..................................•.........................................................
Time of payment...................................................................................................
Chapter X . — Is free contract a constitutional right?...............................................
Chapter X I .— Future of wage-payment legislation.................................................
Unsettled state of our labor law...............................................................................
Determination of facts.................................................................................................
Expedients for obtaining facts..................................................................................
Trend toward public control of wage conditions................................................
Appendix .— List of cases cited.........................................................................................




Page.
128-131
131
131,132
132,133
133-142
133-135
136-142
142-145
146-152
146,147
147-151
151,152
153-163
153-155
156-163
156,157
157,158
158,159
159-161
161-163
164-172
173-178
173-174
175
175-177
177-178
179-184

BULLETIN OF THE

U. S. BUREAU OF LABOR STATISTICS.
WHOLE NO. 229.

W ASHINGTON.

DECEMBER, 1917.

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.1
B Y ROBERT GILDERSLEEVE PATERSON, SOMETIME HARRISON
FELLOW OF THE U N IV ER SITY OF PE N N S Y L V A N IA ;
ASSISTANT
PROFESSOR OF PUBLIC HEALTH, OHIO
STATE
U N IV ER SITY.

CHAPTER I.—THE LABOR CONTRACT IN ENGLISH AND
AMERICAN LAW.
The right of a man to sell his labor upon such terms as are acceptable
to himself has been repeatedly declared and judicially affirmed in
America. This right is so well established, so eminently respectable,
that to many authorities it is an axiom of justice and a fundamental
idea of constitutional government. Superficially considered, from
the point of view not of communities or governments but of the
individual, the right is inherent. Broadly and economically con­
sidered, from the point of view of the social organism, other factors
enter into the proposition, and the right of a man to use his labor as
a commodity may be denied. The individual man and his needs is
only one of a congeries of men and their needs that make up the
organism called society. The question raised is whether the “ in­
herent’ ’ rights of the individual shall be subordinated to the equally
fundamental rights of society. Where do “ inherent” rights of the
individual end, and where may society safely begin to assume sover­
eignty without transgressing those rights ? 2
Without arrogance, it may be said that no such abstract individual
right beyond the power of abridgment and limitation by govern­
mental authority is recognized by American legislatures and the
better decisions of the American courts. Nor is this right recognized
in the legal practice of European countries, or by the European writers
on jurisprudence.
It becomes increasingly evident that “ free contract” is a fiction
or an appealing phrase in a society such as ours, where economic and
social conditions make it practically impossible for the employer
11 wish to acknowledge the valuable assistance rendered b y Chester L lo y d Jones, professor of politi­
cal science, University of W isconsin, in the preparation of the manuscript.— R . G. P.
2 Edward A . Adler: Labor, capital and business at com m on law, in Harvard Law R eview , January,
1916, V ol. 29, N o. 3, p p. 241-276.




6

W A G E-PAYM EN T LEGISLATION IN TH E UNITED STATES.

and employee to meet on terms of perfect equality. Theoretically,
rights are equal. But the strongly contrasting conditions presented
by society itself disproves the theory and emphasizes the irony of
the phrase “ free” contract. “ Much of the discussion about ‘ equal
rights/” asserts a leading sociologist, “ is utterly hollow. All the
ado made over the system of contract is surcharged with fallacy.” 1
Prof. Ely gives the point of view of the economist in his assertion,
“ For one who really understands the facts and forces involved, it is
mere juggling with words and empty legal phrases.” 2
Earlier writers on law both in Europe and America spoke of no
unlimited, inherent, or inalienable freedom of contract.3 Bentham
argued for no such right.4 Ahrens in 1837 declared there was no
natural right of free contract, but natural restraint upon its free
exercise.5
The problem of the early writers on jurisprudence was not to
guarantee the right to enter into any contract, but to guarantee that
contracts once entered into should be fulfilled. The later meaning
attached to “ free contract” came as an outgrowth, or corollary, of
the doctrine of laissez faire of Adam Smith. Imported to this
country, the theory has undergone a remarkable metamorphosis.
Beginning as a protest against governmental interference with
individual liberty, the very forces which protested were not many
generations in discovering that “ freedom of contract” was used to
defeat the very ends that were originally designed to be safeguarded.6
“ Free contract” was the basis of defense used to protect the
professional contractor and his individual interests; to protect him
in his cheap labor contracts, and to protect cheap labor in under­
bidding the “ current wage.” So it has become an obstacle to the
guaranty of real freedom before the law.
English legal history furnished no basis for generalizing upon free
contract as one of the fundamental rights of Englishmen. American
practice recognized it only as an accepted principle to the protection
of which the courts might be called— and then rather indefinitely—
when the cases arose under the fourteenth amendment.
A review of the development of the “ freedom of contract” in
English and American legal history will serve to show its present
status in the systems of law of the two countries.
1 L . F . W ard: A pplied Sociology, Boston, 1906, p. 281.
2 Richard T . E ly: Econom ic Theory and Labor Legislation, in Proceedings, American Association for
L abor Legislation, 1st annual meeting, Madison, W is., 1908, p. 18.
3 Grotius spoke of freedom of contract as a fundamental natural right, but not in the sense under dis­
cussion. Roscoe Pound: Liberty of contract, in Yale Law Journal, May 1909, V ol. 18, p. 455. (The tw o
references preceding and several of those w hich follow are taken from this article in support of the argument
in the pages im m ediately following.)
4 Jeremy Bentham: Theory of Legislation, Boston, 1840, V ol. 1, p. 95.
5 Heinrich Ahrens: Cours de Droit Naturel; ou De Philosophie du Droit. Bruxelles, 1860, bk. 2, sec. 83.
6 John Stuart Mill: Liberty, N ew York, 1882, ch. 4, p p. 133-165.




THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW .

7

EARLY ENGLISH LAW.
FIR ST STAGES OF L A W ON CO N TR ACT.

Preceding the Norman conquest we find almost no traces of con­
tract law. Such provisions as do appear relate to limitations of the
right to contract. Thus there are, for example, provisions requiring
those who purchase cattle to buy them in the open market and before
good witnesses. The purpose of these rules was to protect the honest
buyer against the possible claim of a third person that the beasts
were stolen. In our modern laws concerning purchase in the open
market, we find suggestions of these ancient rules; but, in general,
the society of pre-Norman times was only vaguely familiar with
contract and credit relations.1

In the period following the Norman conquest there is no branch of
the common law which shows so tenuously as that on contract. A
general conception of contractual obligation was an evolution of the
common law in comparatively recent times. Bracton, followed by
other writers, finding the English law on contracts vague and unsatis­
factory, did not scruple to borrow from the Roman law sources with
which he was familiar. He forgot to acknowledge the debt and was
willing to permit the borrowed theory to pass as a product indigenous
to English soil. His failure to do so is not the only testimony extant
that the product was alien.2 The first important native act upon the
subject of contract was the Statute of Westminster II (13 Edw. I,
Stat. 1. c. 24) of 1285, which laid the foundations of modern English
contract law.
In a period when even the theory of contract was almost absent,
or present only by adoption, from a system that recognized no limi­
tation on the lawmaking power, it is needless to say that there was
no idea of a freedom of contract— a right to enter into agreements
which should be protected against legal or other limitations.
But there were already developing in English law concepts which
were the basis of the principle of “ freedom of contract,” namely,
the right of undisturbed personal liberty. It was the liberty that had
been put into words in the Magna Charta of 1215. At that time the
content of the guaranty of “ liberty” was far from what we now
understand by the term. The liberty for which the early Englishmen
strove was, in the main, personal security. But in the five and a half
centuries which elapsed between the granting of Magna Charta and
the American Revolution, “ liberty” and the “ due process of law”
which was to guarantee it came to have a broader meaning—one
1 Frederic Pollock and F .W . Maitland: History of English Law before the time of Edward I, Boston,
1893, vol. 2, pp. 182-236.
2 Idem, vol. 2, p p. 192-194.
J. W . Salmond: H istory of Contract, in Law Quarterly R eview, April, 1887, vol. 3, pp. 166-179.
Carl Giiterbock: Bracton and His Relation to the Rom an Law, Philadelphia, 1866, pp. 138-149.




8

W AG E-PAYM EN T LEGISLATION IN THE UNITED STATES.

which made it correspond to the changes taking place in the national
life. As the centuries passed by, successive confirmations of Magna
Charta broadened its terms and gave those terms a modern rather
than a feudal meaning. As the Supreme Court of the United States 1
says:
Owing to the progressive development of legal ideas and institutions in England,
the words of Magna Charta stood for very different things at the time of the separation
of the American colonies from what they represented originally.
TH E “ ST A T U T E S OF L ABOR ER S.”

The gradual development from the old to the new standard in
England is explained by the steadily increasing and broadening social
needs and the efforts made to secure their expression into law. The
privilege or right of a man to sell his labor was neither guaranteed
nor known during the Middle Ages. Industrial development was not
equal to cope with, much less to make headway against, the condi­
tions that dominated rural England. The system of forced labor
employed in agriculture, due to the power of the lords of the soil
to enforce their commands against the weaker part of the com­
munity, gradually, it is true, broke down, and by the time of Edward
III a body of laborers in county and town had become to a large
extent free. But their rights were not to develop directly so as to
include freedom of contract. A temporary check was given by the
great plague—the black death—which swept over England in
1348-49, carrying off two and a half millions of the population.2
u While the plague was by no means confined to the laboring classes,
the consensus of opinion is that the death rate was highest among
the poor.” 3 The scarcity of labor thus occasioned and “ the ex­
orbitant wages demanded by the laborers fortunate enough to sur­
vive,” brought about at the request of the landed proprietors the
first “ Statute of Laborers.”
Historically this was a famous proceeding (1349). Not only was
the substance of the ordinance itself remarkable, but the manner of
its enactment was unusual and dangerously menacing to the liber­
ties of the people. It was called a statute, and, like other statutes,
has been included with the statutes at large, as though it were an
act of Parliament. Yet Edward modestly declares: “ We * * *
have upon deliberation and treaty with the prelates and the nobles
and learned men assisting us, of their mutual counsel, ordained,” ctc.
1 Hurtado ?> California, 110 U . S. 529, Mar. 3, 1884.
.
2 William Cunningham: Growth of English Industry and Commerce, Cambridge, 1885, p. 189. Contains
a note that Mr. Seebohm argues (Fortnightly Review, vol. II, p. 149; vol. IV , p. 87) that the population of
England was about 5,000,000 before the plague.
George Howell: Labour Legislation, Labour Movements, Labour Leaders, London, 1902.
W . Hasbach: History of the English Agricultural Laborer, London, 1908.
3 B . H . Putnam: The enforcement of the statute of laborers, 1349-1359, in Columbia University Publica­
tions, 1908, p. 1 ff.




THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW .

9

The excuse was the necessities of the landed proprietors and the fact
that Parliament was prorogued on account of the plague. The ordi­
nance not only made a definite legal recognition for the first time of
the presence of a wage-earning class, but gave sanction to the forcing
of labor by declaring “ that every man and woman * * * of
England * * * free or bond, able in body and within the age
of threescore years * * * not exercising craft nor having of
his own whereof he may live, nor land to till, nor serving any other,
should be bound to serve such person as should require him at the
wages heretofore accustomed to be given in places where he oweth
to serve * *
1 Heavy penalties were imposed upon the
laborer if he refused to serve and upon the master if he paid more
than the rate of wages previously given. The laborer was compelled
to work for anyone who might require his services. There was
manifestly no freedom of contract, as we understand it, for him.
To secure the confirmation of the statute by Parliament, a sup­
plementary statute 2 was passed in 1350, which begins with a recital
showing the contempt with which the previous statute had been
treated. This also was called the “ Statute of Laborers/ 3 A fur­
’9
ther confirmatory a ct4 was passed in 1360. Laborers who refused
to work were to be imprisoned, and punishment was to be visited
upon those caught departing to another country.
Under Richard II a statute5 fixed the wages of agricultural serv­
ants and laborers at specified rates for specified employment. The
justices of the counties were required to make proclamation, accord­
ing to the dearth of victuals, how much every craftsman, workman,
or other day laborer was to receive. In both cases infraction of the
laws by laborer or employer was punished by severe penalties. The
principle of interference was now in full swing, and in the reigns of
Henry V I 6 and Henry V II7 the wages of both laborers and artifi­
cers were fixed with great minuteness. The rates of wages so fixed
were, for the time, binding on master and servant alike, but in the
reign of Henry V I I I 8 the penalties for not paying the wages author­
ized by the statute of Richard II were repealed so far as they related
to the masters. This prohibited the workman demanding more than
the standard, but permitted the master to pay less.
The suppression of the monasteries by Henry VIII led to a large
number of unemployed persons wandering about the country, and
1 The Statute of Laborers, Pickering, 1762, 23 E dw . I l l , cap. 1-8 (1349), vol. 2, pp. 26-30.
2 A Statute of Laborers, Pickering, 1762, 25 E dw. I l l , stat. 1, cap. 1-7 (1350), vol. 2, pp. 31-35.
3 E . M. Smith: Master and Servant, L ond on , 1906, introduction, pp. 87, 88.
4 Statutes at Large: Pickering, 1762, 34 E dw . I l l , cap. 9-11 (1360), vol. 2, pp. 139-141.
5 Statutes at Large: Pickering, 1762, 12-13 R ich. II, cap. 4 (1388), vol. 2, p. 301; cap. 8 (1389), pp. 313-315.
6 Statutes at Large: 6 H en. V I, cap. 3 (1427), vol. 3, p. 104; 8 H en. V I, cap. 8 (1429), p. 121; 23 H en. V I ,
cap. 13 (1444), pp. 276-278.
7 Statutes at Large: Pickering, 1762, 11 H en. V II, cap. 22 (1494), vol. 4, p. 73.
8 Statutes at Large: Pickering, 1762, 4 Hen. V III, cap. 5 (1512), vol. 4, p. 122-




10

W A G E-PAY M EN T LEGISLATION IN THE UNITED STATES.

further legislation was the result. The well-known Statute of
Elizabeth, sometimes called “ The Great Statute of Laborers,” 1
was passed. All former acts regulating wages were repealed—
chiefly for that the wages and allowances limited and rated in many of the said stat­
utes are in divers places too small and not answerable to this time, respecting the
advancement of prices of all things belonging to the said servants and laborers; the
said laws can not conveniently, without the great grief and burden of the poor laborer
and hired man, be put in good and due execution.

Among the many provisions found in this “ labor code” were
numerous restrictions imposed on the freedom of contract, but
the attempt to fix wages by specifying them in the act was aban­
doned. The justices of the peace in session were empowered to fix
wages at a reasonable price. No power was conferred upon the
justices to order payment of wages, but this power was assumed by
them and by construction of law held to be legal. No person was
to be hired for less than a year, and no one could leave or be dis­
charged before a year’s time, except on order of a justice of the
peace. No one could leave his city or town without a testimonial.
By a later act2 the power of the justices to fix the rate of wages
was extended. These local justices of the peace were either employ­
ers themselves or drawn from the same station in life, and the power
over the laborer thus given into their hands was jealously guarded.
This law continued on the statute books for more than two cen­
turies, but it fell into disuse soon after its enactment. The next
period, therefore, is not marked by any important enactments
beyond those repealing specific provisions of the law from time to
time. An act3 in the reign of George III repealed the provision
empowering justices of the peace and magistrates of cities and
boroughs to fix prices of work for artificers, laborers, and craftsmen.

In 1824 we have the first positive statement4 of what had long
been recognized in a negative way, that nothing contained in the
act should authorize justices to establish a rate of wages without
the mutual consent of both master and servant. The trend in
England in the last century has continued to be toward increased
regulation of wages, but the development broadened so as to include
the regulation of wages in the interest of the employee.
The right of free contract and how that right is held by the English
legislature is shown by its laws to establish minimum wages for vari­
ous industries.5 These laws practically abridge the freedom of wage
contract.
1 Statutes at Large: Pickering, 1763, 5 E liz., cap. 4 (1562), vol. 6, pp. 159-175.
2 Statutes at Large: Pickering, 1766,20 Geo. II, cap. 19 (1747), vol. 19, pp. 48-50; 29 Geo. II, cap. 33 (1756),
vol. 21, pp. 478-480.
3 53 Geo. I l l , cap. 40 (1813), vol. 53, p. 191, London , 1813. Other repealing acts were 6 Geo. IV , cap.
129 (1825), vol. 65, pp. 1066-1078, L ondon , 1825; 30-31 V iet., cap. 59 (1867), vol. 2, p. 720, L ondon, 1867;
36-37 V iet., cap. 96 £1873), vol. 8, pp. 569, 576, London , 1873.
4 5 Geo. IV , cap. 96 (1824), vol. 64, p. 521, L ondon, 1824.
&See p. 36.




THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW .

11

FREEDOM OF CONTRACT IN AMERICA.

The growth and development of the doctrine of freedom of con­
tract in the United States is of interest in order to show how widely
different the standards are.
The principles of the common law 1 and the Statute of Elizabeth
were brought to America by the colonists and they set about at once
fixing the rates of wages to be paid in the various handicrafts. In
1633 a measure was enacted in the Massachusetts Bay Colony, pro­
viding that carpenters, sawyers, masons, and other master work­
men were not to receive more than 2 shillings per day. The con­
stable with two others associated with him were to fix the rates of
pay of inferior workmen in the same occupations. Whenever an
employer paid wages beyond the amounts established by law, or
whenever a workman received extra pay, heavy penalties were to
be meted out. No sooner did this statute fail to prove effective
than it was repealed and another one enacted; a proceeding often
and vainly repeated. Other settlements followed the example of
Massachusetts, and the colonial period is full of laws restricting the
amount of wages and imposing fines for exceeding the established
rates.
The history of these attempts is one of continual failure. Backed
by the knowledge of free land near at hand, and suffering from the
injury of apparent rights disregarded or denied, the master workmen
and the better class of common laborers were in constant protest'and
rebellion against the wages thus arbitrarily decreed. The conse­
quence was that they preferred to live on their own land where they
could be free from the petty interferences of legislatures.2

When our National Constitution was formed, conditions on both
sides of the Atlantic had changed. England in the period preceding
the American Revolution had abandoned the minute, paternalistic
regulations of the contract which had characterized the later Middle
Ages. Governmental interference had been decried as despotic and
a positive obstacle to individual initiative. Industrial development
demanded free markets and free conditions for manufacture. The
old limitations fell into disuse, and gradually, through the efforts of
many parliaments and after the passing of centuries, most of the
restrictive laws affecting contracts and the wages of labor were
repealed.
This was generations prior to the forms of restrictive legis­
lation of recent times. At the end of the eighteenth century the
example of the home country, to which the colonists owed their
legal system, was strongly opposed to the regulation of contract
1 P . S. Reinsch: English Common Law in the Early American Colonies, Madison, W is., 1899, Uni­
versity of W isconsin B ui. N o. 31.
2 W . B . W eeden: The Econom ic and Social History of New England, 1620-1789, Boston, 1890, 2 vols.
See index, “ W ages.”




12

W AG E-PAYM EN T LEGISLATION IN TH E UNITED STATES.

relations. American conditions accentuated the aversion of its citi­
zens to governmental interference. The spirit of independence was
not alone a growth and dissemination of theoretical democracy.
The struggles in the settlement of the wilderness, against the ag­
gressions of the officers of the Crown, and against the Crown itself
in its schemes of imperial control proposed in the latter half of the
eighteenth century, created a spirit bold and self-reliant, a caution
that was more nearly suspicion, an awakened sense of rights and
privileges, that protested against the interference not only of govern­
ments abroad, btit of governments at home, and viewed liberty as
designed also for others besides kings, aristocracies, and their servile
agents.
Personal liberty was so “ fundamental” that it uniformly found
a place in the acts declaring opposition to the British Crown. In
the nonimportation agreement of the Continental Congress of October
14, 1774, the delegates proclaimed that they—
*
* * do, in the first place, as Englishmen, their ancestors, in like cases have
usually done, for affecting and vindicating their rights and liberties, declare that the
inhabitants of the English colonies in North America, by the immutable laws of nature,
the principles of the English constitution, and the several charters or compacts, have
the following rights:
Resolved, N. C. D., That they are entitled to life, liberty, and property, and they
have never ceded to any sovereign power whatever a right to dispose of either without
their consent.1

The Declaration of Independence asserted that all men are “ en­
dowed by their Creator with certain inalienable rights/; including
“ life, liberty, and the pursuit of happiness.” The State constitu­
tions of the revolutionary periods were written in the same tenor,
and the Northwest Ordinance of 1787 proclaimed the same belief.
Even in the Territories these “ inalienable ” rights were recognized.
One of the first objections raised to the Federal Constitution, too,
was that it contained no bill of rights, expressly protecting the liberty
of the subject. It was found impossible to secure the adoption of
the Constitution by several States, except in connection with the
recommendation of amendments comprising a bill of rights to be
submitted by Congress for ratification.
So strongly individualistic was American political philosophy that
it was even asserted that independently of the Constitution there
are certain rights no constitution or laws could contravene. Above
the written instrument there is an “ unwritten constitution,”2 and if
there are implied powers existing in the government, so there are
implied reservations upon legislative power growing out of the nature
of free government.3
1 Journals of the American Congress from 1774 to 1788, W ashington, 1823, vol. 1, p. 20.
2 See an argument to this efiect in State v. Addington, 12 Mo. A p . 221, M ay 16,1882.
3 See Mr. Justice Miller in Loan Asso. v. Topeka, 87 X1. S. Sup. Ct. (20 W all.) 655-670, October, 1874.




THE LABOR. CONTRACT IN ENGLISH AND AMERICAN LAW .

13

The courts have not, it is unnecessary to say, relied on these abstract
concepts in their decisions. The Federal Supreme Court, though it
uses the “ natural rights7 philosophy in dicta, has never decided a
7
case by arguments drawn from that source alone. The State courts
have followed a similar course with a few ill-considered exceptions.
The commonly accepted doctrine of the courts has been that a right
must be claimable under some clause of the National or State Con­
stitution. The Federal Constitution contains the grants and limita­
tions of the powers of Congress, and the Federal and State Consti­
tutions together outline the limits of the powers of the State legis­
latures. Any exercise of power either within the constitutional
grant or within the constitutional limitation can not be overthrown
by pleading the natural law.
At this point a contrast must be shown between the idea of liberty
of contract as it was declared in England and in the United States.
From the time of Magna Charta on, the branch of government from
which limitation of liberties was feared in England was the adminis­
trative, not the legislative. The English guaranties were aimed at
the king, not the representatives of the people. From the legal
point of view there can be no doubt that there was no right Parlia­
ment was bound to respect. As the commentator De Lolme de­
clared, the legislature could legally do anything but make a man out
of a woman or a woman out of a man.
The constitutional rights of the people can never be abrogated in
the United States, due to the power of the courts to pass on the con­
stitutionality of legislation. The restricted power of the legislature
is now a principle in both State and Federal practice.
The desire to have private rights protected against both the legis­
lature and the administration is shown in the correspondence of Jeffer­
son and Madison. The former urged a bill of rights as necessary to
guard against the legislature. Madison in a letter to Jefferson
voiced the same fear:
Wherever the real power in a government lies there is danger of oppression. In
our Government the real power lies in the majority of the community and the invasion
of private rights is chiefly to be apprehended not from acts of the Government con­
trary to the sense of the constituents but from acts in which the Government is a
mere instrument of the major number of constituents. * * * Where there is an
interest and a power to do wrong, wrong will generally be done and not the less readily
by a powerful and interested party than by a powerful and interested prince.

In strong contrast* with the similar guaranties of Great Britain
to its English subjects, these American provisions for the protec­
tion of individual rights, whether originating in State or Federal
Constitutions, are limitations on legislative power. They are not
only directory limitations, but, owing to the position held by the




14

WAGE-PAYMEJSTT LEGISLATION IN TH E UNITED STATES.

courts, mandatory rules, which the legislature must recognize and
follow. As the Supreme Court has declared:1
In this country written constitutions were deemed essential to protect the rights
and liberties of the people against the encroachments of power delegated to their
governments, and the provisions of Magna Charta were incorporated into bills
of rights. They were limitations upon all the powers of government, legislative as
well as executive and judicial.
Tt necessarily happened, therefore, that as these broad and general maxims of
liberty and justice held in our system a different place and performed a different
function from their position and office in English constitutional history and law, they
would receive and justify a corresponding and more comprehensive interpretation.
Applied in England only as guards against executive usurpation and tyranny, here
they have become bulwarks also against arbitrary legislation; but in that application,
as it would be incongruous to measure and restrict them by the ancient customary
English law, they must be held to guarantee not particular forms of procedure, but
the very substance of individual rights to life, liberty, and property.

COURT TESTS OF FREEDOM OF CONTRACT.

Though the guaranties of individual rights were present in our
constitutions from the beginning, the effectiveness of the guaranty,
as far as the central government was concerned, was not tested for
almost a century after the adoption of the Federal Constitution and
in the individual States the issue was seldom raised. There are two
reasons for this delay.
The intense individualism of the revolutionary period, though it
suffered a setback in the early years of the constitutional government,
continued to be the dominant force in public opinion. As a result,
the people and their representatives looked askance at governmental
interference. The legislature rarely encroached upon ground where
the question of infringement upon private rights might be raised.
The influence of the frontier continued. Industrial development was
not marked. Large combinations of capital and unions of laborers
were not yet an important factor of national life, necessitating the
adjustment by law of clashing interests. It was still possible for one
who felt dissatisfied with his surroundings to “ go west,” wrestle with
the land and fashion out bis own destiny. The spirit of the times
kept vigilant watch over the acts of the legislatures and the still
formative character of the prevailing social conditions insured the
continuance of popular enthusiasm for the laissez faire theory of
government. Under these circumstances no exigency arose for test­
ing the private right of contract.2
The second reason why liberty of contract remained an unimportant
factor is found in our constitutional development. There were few
appeals to the fifth amendment, since its guaranty against laws de­
1 Mr. Justice Mathews in Hurtado v. California, 110 U. S. 531, 532, Mar. 3, 1884.
2 For a discussion of this subject referring to English conditions, see A . V . Dicey: Relation between
Law and Public Opinion in England during the Nineteenth Century, London, 1905, pp . 146-150.




THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW .

15

priving the citizen of “ life, liberty, and property” was only aimed
at the Federal Congress. With its restricted field of action, affecting
only in exceptional cases the individual directly, it was not surprising
that the amendment remained in a somnolent state. Up to 1866,
the time of the adoption of the fourteenth amendment, even where
cases of this description did arise, they were almost always of local
importance only, and incapable of being carried into the Federal
courts. Though they might involve liberty of contract, it was only
in that class of cases where the obligation of a contract already en­
tered into was impaired that suit could be taken to the Federal courts.
What was “ due process of law” and the degree to which a man was
protected against the legislature in his “ life, liberty, and property”
were still matters of State law.
But the case was far different after the passage of the fourteenth
amendment. A restraint upon the power of the States brought the
possibility of conflict with the laws passed by the States nominally
under the undefined but all pervading “ police power.” The Federal
courts were empowered to declare the State act void if it denied “ due
process of law.” As a result of this increase in its power the Supreme
Court of the United States complained as early as 1877 that the new
clause had already crowded the docket of the court.1 The two
principles (State action alleged to be taken under the police power,
and Federal supervision to guarantee due process) have been pro­
ductive of an amount of litigation equaled by few other elements of
our constitutional iaw. The guaranty that the citizen shall not be
deprived of property without due process of law has been held to
include the guaranty of liberty of contract. Liberty of contract,
as a property right to be guarded by the courts, has been the chief
bulwark opposed to the voluminous legislation passed with the
avowed object of increasing the sum of the liberties of the citizens
by limiting the liberty of certain citizens.
The extent to which the guaranties of private property rights,
including liberty of contract, were to be given Federal protection
against laws passed ostensibly under the police power,2 was first
brought into general discussion in the group of cases decided in 1876,
commonly known as the Granger cases. It was decided in these
cases that the State could regulate the contracts of businesses that
affect “ the public interest.” The discussion was rendered more
important by the fact that the decision 3 was not confined to rail­
roads, which from the character of their public franchises are monopo­
lies and as such clearly must be subject to a certain degree of public
1 Mr. Justice Miller in D avidson v. New Orleans, 96 U . S. 104, October, 1877.
F. Dodd: The growth o f judicial power, in Political Science Quarterly, 1909, vol. 24, N o. 2, pp.
193-207.
F. J. Goodnow: Social Reform and the Constitution, New Y ork , 1911, ch. 6, pp. 242-258*
3 Mnnn v. Illin o is ,94 U . S. 134, October, 1876.

2 W.




16

W A G E-PAYM EN T LEGISLATION IN TH E UNITED STATES.

regulation, but extended to warehouses for storing grain, the location
of which did not necessarily involve a monopoly element or public
franchise, but which the court nevertheless held to affect “ public
interest” and justified the regulation of their charges by the
legislature.

Later decisions have seriously modified some of the contentions in
the Granger cases. It was originally held that the determination of
proper rates was a legislative privilege, but in March, 1890, in the
case1 of the Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota,
the court reversed its decisions on this point to the extent of holding
that the reasonableness of a railway company’s charge was a judicial
question and that a statute giving a commission the power to make
rates without any opportunity for judicial review was a denial of
due process of law and was contrary to Lhe Constitution. But the
right is still unaffected reasonably to regulate the conditions under
which any business that affects the public interest may be carried
on, and this is true even though the regulation may involve a limita­
tion of the freedom of contract formerly enjoyed.
What is a business that affects public interest ? It apparently is
not necessary for a business to involve a public franchise, nor does
its location alone give it a monopolistic character, though if these
limitations are overstepped, there seems no limit to the activities in
which the public is not concerned. This seems to be a deduction
justified by the early decisions of the court. In the decision of the
Munn v. Illinois case the court cited with approval an early Alabama
case in which the court held that the business of a baker affected a
public interest, justifying a provision in a municipal charter to regu­
late the weight and price of bread by city ordinance. If this class of
business comes under legal regulation, there appears to be no reason
why the same regulation should not be extended to the grocer, the
dry goods merchant, the farmer, in fact to every means of livelihood,
and the conditions of all contracts would be subject to legislative
regulation; but the trend of opinion has not been toward this radical
position.
A standard by which legislative power may be delimited is osten­
sibly offered by the police power. Yet the police power is so unde­
fined as to make the limit of regulation shift with the shifting opinions
of the judges; that is, if the judges, rather than the legislature, are
to determine what is reasonable and what is unreasonable. Such an
elastic standard would have its advantages. It might be essential
to allow the easy readjustment of our ideas of what is a public interest
If the standard is to be elastic, however, it is illogical to put it in the
control of that branch of government which is least elastic.




1 C „ M. & St. P . R y . Co. V. Minn., 134 U . S. 418, Mar. 24,1890.

THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW.

17

LIM ITATIONS B Y T H E COURTS.

Limitations on the freedom of contract are even now, however,
finding their way increasingly into our law, and this is true not only
of the acts of the legislature, but of the rules developed by the courts
themselves. In spite of the acceptance of the principles “ Every man
is the master of the contract he may choose to make” and “ It is of
the highest importance that every contract should be construed
according to the intention of the contracting parties,” we find at
least tw o classes of cases in which the courts have modified contracts,
holding that the agreement did not accomplish what its terms stated.
(а) In a bilateral contract to convey land for a price, the only
promise of one partjf is to c.onvey land. But a case in equity may
compel the vendor to convey even though there be some element
which makes it impossible for the contract to be carried out in all
its details. In the specific performance the vendor will also be
forced to pay a sum of money sufficient to compensate the vendee
for the defect. This is not the enforcement of the original contract.
The contract into which he freely entered he can not perform, but
he is held to perform one he never made.
(б) Courts also alter contracts to suit their ideas of justice in
certain cases where express conditions are inserted in the contract,
but eliminated by the courts. Thus, in building contracts, the
promise to pay may be made contingent upon a certificate of approval
of the building by an expert architect in whom the promisor has
confidence. But the courts will hold that if the certificate is un­
reasonably withheld, plaintiff may recover without it. The right to
contract to have the proper completion of the building contract
determined by an expert, for which the promisor stipulated, the
court has read out of the contract. The promisor’s obligations are
increased and he is held to a promise which he never made. The
logic of the case is thus stated by Chief Justice Beasley, in Chism
v. Schipper.1 “ Can the defendant cheat the plaintiff by due course
of law? * * * The only known reply is, that the plaintiff has
covenanted to that effect.” The courts conclude that this would
be unjust and modify the contract freely entered into, although in
England the contrary is the practice. It is not contended that these
instances raise the same points at issue in the discussion of laws
aiming to alter the old standard of freedom of contract. They are
parallel, however, in that, like those laws, they deny a man the
right to enter into a contract otherwise unobjectionable, and thus,
by judicial legislation, create a limitation on the freedom of contract.2
1 Chism v. Schipper, 51 N. J. L . 11, Novem ber, 1888.

2 See discussion on this subject, including several of the cases cited

in the pages imm ediately following,
from which the classification here used is adopted, b y C. D . Ashley: Should there be freedom of contract?
in Columbia Law R eview , vol. 4, 1904, p. 423.

1055980— 18— Bull. 229------- 2




18

W A G E-PAYM EN T LEGISLATION IN TH E UNITED STATES.
LIM ITATION S B Y T H E LEG ISLATU R ES.

(a) Prohibitions of usurious contracts are technically a limitation
of individual freedom, but rest upon so long a history, antedating
even the constitutions, that public opinion makes futile any question
of their legality.
(b) Laws regulating the liquor traffic, both those passed by the
Federal and State governments, limit the right to contract in the
field to which they apply. The Supreme Court has held that a
State prohibition law is not in conflict with the fourteenth amend­
ment and that since the general use of alcoholic drinks might en­
danger the public health, it is within the power of the legislature
under the police power to determine the remedy.1
(c) Insurance contracts have been regulated. The insurance busi­
ness does not involve a public franchise and, except that practically
without exception it is now carried on by corporations, it is not
monopolistic in character. Its contracts are essentially of a private
character and are made with persons of full legal ability, but the
opportunities for fraud are so great that legislative regulation of
the contracts has been sustained. Thus laws have been passed
making illegal any agreements made by the insured to accept the
actual value o f the goods at the time destroyed by fire instead of
the amount written into the policy.2 Laws have been passed pre­
scribing official forms of policies which must be used in all contracts
of fire insurance. A similar denial of freedom of contract has been
made in the case of life insurance companies.3
The great majority of insurance contracts are, of course, written
by companies organized in other States than that in which the
contract is made. If it is to be followed as a general rule that
foreign corporations can be regulated by the various States, not only
as to the general conditions under which they may do business,
but also as to the terms of the contracts into which they may enter
with private individuals, serious inroads may be made upon the
liberty of contract by the prescribing of official forms of contract
by the legislatures.
(d) Freedom of contract has been limited by acts intended to
protect certain business interests against competition. The best
example of this legislation is furnished by the laws against the
manufacture of oleomargarine. Though nominally passed for the
prevention of fraud, the statutes went further than was necessary
for this purpose, and in several States made the manufacture of the
article in any form a criminal offense, though the manufacturers
1Mugler v. Kansas, 123 U . S. 623-680, Dec. 5, 1887.
2 Sustained in R eily et al. v. Franklin Insurance Co. of St. Louis, 43 W is. 449-458, August, 1877; Queen
Insurance Co. v. Leslie, 47 Ohio St. 409-423, June 17,1890.
s Equitable Life Assurance Society v. Clements, 140 U. S. 226-234, May 11,1891.




THE LABOR CONTRACT IN ENGLISH AND AMERICAN LAW .

19

offered to prove the article clean and wholesome.1 A case 2 arising
in Pennsylvania was carried to the Supreme Court of the United
States and sustained.
(e)
Antitrust laws, both State and Federal, are limitations on the
right to enter into contracts, justified in the States by the police
power, in the Federal Government under the commerce clause.
(/) Finally, the immense amount of labor legislation, one phase
of which is treated in this discussion, is to a large extent legislation
attempted under the police power, with the object of limiting the
freedom of contract for the individual's own interest.
The examples presented serve to show that the boundary line of
the police power in the regulation of freedom of contract is nowhere
clearly defined. Although we admit that the constitutional guar­
anties of private rights were aimed in America against the legislature
as well as against the other branches of government, it does not appear
that either the legislature or the courts are estopped from all inter­
ference with the agreements into which the individual may enter.
The process of judicial inclusion and exclusion has not as yet made
a clear line, up to which the legislature may feel certain that its
acts are constitutional.
At least the following negative standards, however, as to the
power of the legislature may be deduced from the cases above cited.
1. It is not a determining factor that the contract involves persons
sui juris, for usurious contracts are prohibited, and insurance con­
tracts regulated.
2. The fact that Congress recognizes, the contract as involving a
legitimate object of interstate trade is not important, for State
prohibition laws are upheld.
3. The legal right to regulate the contract is not limited to the
exercise of sufficient power to prevent fraud, or to protect the
public health, as is shown by the insurance and oleomargarine cases.
4. The fact that the manufactured article is harmless and that
it might be used only outside the State does not give a right to
contract freely for its production, as is shown again by the oleo­
margarine cases.
5. The fact that the contract does not aim toward a complete
monopoly is immaterial. In fact, the element of monopoly may be
entirely absent, as in the case of the regulation of rates to be charged
by warehouses having no exclusive advantage of location.
1 State v. Addington, 77 Mo. 110-118, October, 1882. Butler v. Chambers, 36 Minn. 69-75, N ov. 12,1886.
Pennsylvania v. Powell, 114 Pa. 265-299, June 2, 1886.
2 Powell v. Pennsylvania, 127 U . S. 678-699, A pr. 9, 1888. A similar statute was annulled b y the New
York Court of Appeals as a violation of liberty of contract: People of N. Y . v. Arensberg, 105 N . Y . App.
123-134, Mar. 22, 1887.




CHAPTER II.—THE COURTS AND PUBLIC OPINION .1

It is a trite saying that the law at no time represents the will of the
present but always that of a past generation. No more clear-cut ex­
ample of this fact can be cited than the attitude of our judges and the
legal profession generally toward the rights of the individual in regard
to contracts. Public opinion has moved on past the theories which
still obtain acceptance in the courts, and has concerned itself more
closely with the actual facts and needs of modern conditions.
The individualism of the eighteenth century was in accord with
American conditions; so, during the Revolution the opportunity
seemed ripe to transcribe into words the thoughts, ideas, and emo­
tions that formed the political philosophy current at the time.
Leaflets and pamphlets were printed and distributed broadcast, and
Thomas Paine’s “ Common Sense” was read with such avidity that
it kept the crude presses of those days busy for months to meet the
public demand. Washington himself acknowledged that the country
owed a debt of gratitude to Paine. In one of the darkest hours of the
new Republic, it was again this new political doctrine, as expounded
by Paine in The Crisis, that helped turn the tide of desertion from the
army to enlistment and loyal support, and despair to general hope­
fulness.2 These writings were the inspiration of the Declaration of
Independence, and inflamed the minds of men, just as the “ times
that try men’s souls” had inflamed their author. Later, the makers
of the Constitution represented a conservative reaction against the
enthusiasm of the “ rights of man.” Still they wove into the new
frame of government, partly because of the insistence of the growing
radical party, compromises that were to be guaranties of individual
liberty—clauses that should preserve that freedom and equality
which the people enjoyed.
THE ABANDONMENT OF LAISSEZ FAIRE.

But by one of the paradoxes found so frequently in political and
social development, these very phrases, in a changed form of society,
threaten to become the impediment to social growth, and the basis
for the denial by legal means of the guaranty of the very liberty and
equality which it was their object to protect. For two generations
following the Constitution, as already indicated, the conditions of
American life were in consonance with the philosophy of individ­
1 L . D . Clark: The Law of the E m ploym ent of Labor, New Y ork, 1911, pp. 1-44.
J. R . Commons and J. B. Andrews: Principles of Labor Legislation, New Y ork, 1916, pp. 1-28.
2 J. B . McMaster: H istory of the People of the United States, N ew Y ork, 1903, vol. 1, p p. 153,154.

20




THE COURTS AND PUBLIC OPINION.

21

ualism of the Revolutionary period. But after the Civil War industry
rapidly gained in importance over agriculture. The conditions under
which the individual could seek employment changed. The employee
no longer worked for an employer whose equal in skill he might
some day aspire to be; his work became specialized. The artisan
no longer learned the whole trade. His freedom to abandon indus­
trial employment disappeared with the vanishing frontier. The free
land that remained to be taken up did not offer that equality of
opportunity, because of its remoteness and inaccessibility, that had
made independent the life and character of his grandfathers.
The country had not yet reached the century mark when men
began to observe that opportunities were no longer equal. This
conviction found expression in speeches and writings of a greater
radicalism than any of the Revolutionary period. It was a period
of national unrest. Gradually there developed an element in politics,
composed of business men and their representatives, that was im­
pressed with the necessity of greater governmental activity. Those
men claimed that the Government could restore the good times when
opportunities were equal. In order to keep up the standard of
living of the American workingman, and to furnish him with an
“ equal opportunity,” they argued, industries must be given govern­
mental aid to a greater extent than ever before. This resulted in
strengthening protectionism.
Government aid must be given to railroads also, so as to make
more accessible the new lands and to give to their products a value
they otherwise could not have. Then followed immense grants of
land to railroads, State canal enterprises, and the like. Government
activity must be relied upon also to guard the people from exploita­
tion by these very agencies which made their lands valuable, and
thus came the Granger legislation.
From this viewpoint the Granger legislation seemed only an ex­
tension in another line of the governmental activity for the popular
welfare with which the people were already familiar. But from the
legal standpoint it started a new sort of legislation. Governmental
activity, so far as its ends were economic, had been used heretofore
chiefly for the purpose of encouraging individual enterprise engaged
directly or indirectly in the exploitation of the resources of the
country. The Granger legislation involved a policy of restriction.
Rights of certain persons were to be limited that the rights of the
many might be increased.
The people had outrun the courts in their appreciation of changed
conditions and the necessity of new rules to preserve equality before
the law. The more severely restrictive of the Granger laws passed
away by repeal or annulment. The courts modified in important
respects their original conclusions as to what power of control over




22

W A G E-F AYM EN T LEGISLATION IN THE UNITED STATES.

“ business that affects a public interest” lay in the hands of the
legislature. A lull or reaction in social legislation occurred, which
continued almost to the early nineties, and the formerly dominating
note of individualism was only occasionally broken.
Individualism has continued to color the decisions of the courts,
though public opinion and legislatures have felt the need of a broad
program of legislation for social betterment.1 Thus a West Virginia 2
court, discussing legislation on company stores, declares:
It is a species of sumptuary legislation which has been universally condemned as an
attempt to degrade the intelligence, virtue, and manhood of the American laborer, and
foist upon the people a paternal government of the most objectionable character,
because it assumes that the employer is a knave and the laborer an imbecile.

In another case,3 the court criticizes a law prohibiting persons and
corporations engaged in mining and manufacturing from selling
goods to their employees at a greater per cent of profit than they sell
to others as an unjust interference with private contracts and
business.
The remedy is in the hands of the employee. He is not compelled to buy from his
employer. * * * This act is * * * an unjust interference with the rights,
privileges, and property of both employer and employee and places upon both the
badge of slavery. * * *

If such legislation is maintained, the Maryland court4 warns us—
*
* * “ We will not be far away in practical statesmanship from those ages when
governmental prefects supervised the building of houses, the rearing of cattle, the
sowing of seed, and the reaping of grain. * * *

These cases breathe the distrust of governmental action which was
typical of public opinion after the abandonment of the mercantile
system. The point of view is thus summarized by a recent case:5
The right of a person to sell his labor upon such terms as he deems proper is, in its
essence, the same as the right of the purchaser of labor to prescribe the conditions
upon which he will accept such labor from the person offering to sell it. * * * In
all such particulars the employer and employee have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the liberty of
contract which no government can legally justify in a free land.

Only recently has the conflict between individualism and social
legislation been brought to a clear issue. It is only within the past
two decades that the “ freedom of contract” guaranteed by the Con­
stitution has been extensively pleaded in connection with social
legislation.
1 H . R . Seager: Tlie attitude of American courts toward restrictive labor legislation, in Political Science
Quarterly, 1904, v ol. 19, p p . 589-611.
2 State v. Goodw ill, 33 W . Va. 186, N ov. 18,1889. See also Frorer et al. v. P eop le,141 111. 171-188, June 15,
1892; Godcharles & Co. v. W igem an, 113 Pa. St. 431-437, Oct. 4,1886.
3 State v. Fire Creek Coal & Coke Co., 33 W . V a. 190,191, N ov. 18,1889.
4 Lum an v. Hitchens Bros. Co., 90 Md. 29, N ov. 23,1899. In re Jacobs, 98 N. Y . 114, Jan. 20,1885.
&Adair v. U nited States, 208 U . S. 174, 175, Jan. 27,1908.




THE COURTS AND PUBLIC OPINION.

23

INDIVIDUAL RIGHTS AND FREEDOM OF CONTRACT.

The courts developed the idea of free contract from the constitu­
tional protections to individual rights. They have held freedom of
contract to be a property right included in the category of indi­
vidual liberty.1 Though a reasonable deduction from the natural-law
philosophy of the eighteenth century, freedom of contract was not a
part of that philosophy. The problem of the natural-law philosophers
was to break from contracts the formalities that had adhered to them
under the Roman law.
The important thing was that contracts should be free—free from
the technicalities that surrounded them— and that thus they should
be easily enforced. The enforcement of the contract legally entered
into was the specific thing the philosophers wished to make certain.
There was no general insistence in the philosophy of natural law that
the right to enter into any contract was a natural right. That was
a later development that came only when the principle for which the
natural-law jurists had contended had become a matter of course.
The “ natural” right freely to enter into contracts began as a doc­
trine with Adam Smith, and was advocated by John Stuart Mill as
a “ utilitarian principle of politics and legislation,” 2 and as long as
individualism was the dominant note of government it seemed to be
a beneficent doctrine. Natural rights became one of the leading
tenets of those who would reduce government to a policing agency.
As a means of destroying an outgrown social order, and the anti­
quated rules that sustained it, the natural-law philosophy performed
an invaluable service. The philosophy that could elevate the thought
and politics of a new people to renounce one government, and sus­
tained them to patriotic action in building a new experimental
government, had performed an incalculably great service. Under
changed social conditions the same philosophy might become, not
only inadequate, but generally obstructive to social growth and social
welfare.
This may prove to be the case with the theory of the freedom of
contract. Originally accepted and applied as a means of destroying
1 Massachusetts Acts of 1914, ch. 778, p p. 904, 905, declared the legality o f agreements or associations of
workingmen for the betterment of conditions and forbade the issue of injunctions in cases of labor disputes,
unless to prevent irreparable injury to property or a property right of the applicant, for which no adequate
remedy at law exists. The Supreme Court of Massachusetts held that the provision o f the law declaring
that the right to make contracts for labor is not property was a violation of the fourteenth amendment to
the Federal C onstitution In effect, the court held that the right of personal liberty and the right of property
guaranteed b y the Constitution include the right to make contracts for the purchase and sale ol labor
and that the right to exchange labor and services for m oney is one o f the chief rights of personal liberty
and private property. Bogni v. Perotti, 224 Mass. 152-159, May 19,1916.
See laws to same effect: United States A cts of 1914, ch. 323,p. 730, “ The labor o f a human being is not a
com m odity or article of com m erce.” Kansas Acts of 1913, ch. 233, pp. 413,414.
See “ Is legislative abolition of the injunctive rem edy in labor disputes u n con stitu tion a l?’ in Harvard
Law R eview , N ovem ber, 1916, vol. 30, N o. 1, p p. 75-77.
2 See Eoscoe Pound, in Yale Law Journal, May, 1909, vol. 18, pp. 454-487, for a more detailed exposition
of this argument.




24

W AGE-PAYM EN T1 LEGISLATION IN TH E U NITED STATES.

outgrown customs and laws, it may become an obstacle to construc­
tive legislation. We have used it as a means; we are in danger of
making it an end. Retaining the freedom of contract idea, useful in
the extreme individualism of two generations ago, the courts and
legislatures may create a serious obstacle to the constructive laws of
the modern State, because the old theory of equality under which
“ free contract” was usefully applied has disappeared with the subtle
social changes of less than fifty years.1
i Simon N. Patten: The New Jurisprudence, in University of Pennsylvania Law R eview , N ovem ber,
1913, vol. 62, N o. 1, pp. 1-16.




CHAPTER III.—THE COURTS AND THEIR ATTITUDE
TOWARD FREEDOM OF CONTRACT.
BACKWARDNESS OF AMERICAN SOCIAL LEGISLATION.

Any advance in social, or, as some writers prefer to call it, paterna
legislation,1 is necessarily slow, because education of the masses is
slow.
In democracies like England and the United States, legislatures
will rarely act to ameliorate the conditions of labor until there is
wide demand for legislation. This is readily explained and is not
necessarily to the prejudice of legislatures. Social legislation receives
the prompt, almost involuntary opposition of powerful economic
interests. They employ the best legal talent to expound their point
of view. Opposed to this array are the laborers without means,
often without even the power that combination might give, their
strongest appeal arising rather from the circumstance of their need
than anything they may attempt to say. They can not compete on
equal terms with the representatives of capital, either to promote or
to sustain legislation for social betterment.
But the United States are ten, twenty, and in some instances,
forty years behind foreign countries in social legislation. There are
at least three reasons for the slow advance.
The new country, the vast unutilized areas that only awaited the
application of labor, have removed or made less insistent the need
for social legislation. These areas are now practically all appro­
priated or held beyond the reach of the moneyless.
The legislatures, sometimes unrepresentative of popular opinion,
have refused to pass the acts the people demanded. Sometimes, on
the other hand, the legislatures have been overenthusiastic and have
set standards plainly contradicting the rules of the constitutions.
Finally, an important influence retarding social legislation has
been the traditional conservatism of the courts, the department of
government least responsive to changes in public opinion.
ORGANIZATION OF THE COURTS.

Any discussion of the attitude of the American courts toward the
freedom of contract must keep constantly in the foreground the
organization of our courts. There is in America no clear-cut se­
quence which all cases will follow, giving a decision in the highest
national court which will set a binding standard for all State court
1 A . L. Lowell: Government of England, N ew Y ork, 1914, vol. 2, p. 526.




25

26

W A G E-PAYM EN T LEGISLATION IN THE UNITED STATES,

decisions on the same subject. The peculiar system of judicial or­
ganization in the United States is an important factor contributing
toward diversity of law; and in no branch of law has this been
more marked than in the so-called social legislation of the various
States.
Cases in which the constitutionality of a State law is sustained
by the State court though it is alleged to contravene the Federal
Constitution can be carried to the Federal Supreme Court. Cases
in which a State law is declared unconstitutional under the Federal
Constitution by the supreme court of a State can not be carried to
the Federal courts under the present laws. Doubtless provision
could be made by law to allow appeal in such cases.1 Whenever a
point of law has already been interpreted by the Supreme Court of
the United States that interpretation, so far as it applies to the
Federal Constitution, is binding on the State courts. Cases in which
the State supreme court denies the constitutionality of a State stat­
ute, alleged to be an infringement of a provision of the State consti­
tution, can in no case be appealed to the Federal courts. This is
equally true when the provision of the State constitution, alleged to
be infringed, is the same as a provision of the Federal Constitution
which the highest Federal court has held not to be violated by a
law identical with that before the State court.2
The effect of this judicial organization upon progress in social legis­
lation is clear. There is no uniform standard of what is c o n s t i ­
tutional, or what is unconstitutional, even under the Federal Con­
stitution. Each State supreme court, by relying on the possible con­
flict with the State constitution, has complete power to annul a law,
the principle of which may have been sustained by the Federal
courts as not in violation of the Federal Constitution. It is unneces­
sary to say that each State supreme court is final judge of whether
a law violates any provision of the State constitution.
A law to be of unquestionable constitutionality must receive the
approval of both Federal and State supreme courts. The confirma­
tion of the validity of a law by the supreme court of a Commonwealth
and of the Federal Supreme Court is definitive only in so far as that
Commonwealth is concerned. The law is of no effect and the deci­
sions are only persuasive evidence in other States.
The lack of some method by which to standardize the State
decisions leaves our courts extremely conservative. The arguments
of the printed reports have less influence than the local precedents
and the points of view which training and life experience have given
the judges. Notwithstanding the lack of a standard for State deci­
1 U nited States, A cts of 1914,38 Stat. p. 790, authorizes review b y the Supreme Court ofth e U nited States
o f cases decided b y State courts where there is a decision against the validity o f a State statute claimed
to be repugnant to the Constitution or laws of the U nited States.
2 As an example see State v. Missouri Tie & Tim ber Co., 181 Mo. 536-563, M ay 11,1904.




ATTITUDE OF THE COURTS TOWARD FREEDOM OF CONTRACT.

27

sions, we still should expect American advance in social legislation
to be without that uniformity and that definite character found in
countries where there is a closer judicial hierarchy, and where, indeed,
the work of the judiciary is the interpretation of the law only, not the
determination of its constitutionality.
REASONING OF THE COURTS.

But there are other circumstances which accentuate our dis­
advantages. Chief among these are (1) continuance in our courts
of the eighteenth century natural-law philosophy with its enthusiasm
for individualism; (2) the survival of a formalism—devotion to certain
legal ufirst principles,” no matter how much at variance with current
fact; (3) as a corollary of this formalism, the exaggeration of the
principle of stare decisis, which holds us to legal concepts arrived
at in a period of pronounced individualism; (4) the inflexibility of our
law, which sharply divides the field of law and fact, and, by confining
the judge to the consideration of the law, makes it difficult to adopt
any but general, and hence often artificial standards in deciding
the particular case.
PER SISTENCE OF N A T U R A L -L A W PHILOSOPH Y.

The continued predominance of natural-law philosophy in our
courts is hard to realize at a time when, in other directions, advance
has been so strongly marked; in politics and economics, for illus­
tration. We lose sight of the fact that our philosophy of law was
crystallized in the writings of the eighteenth century; that our con­
stitutions, bills of rights, and early cases involving both took form in a
period of unprecedented individualism. Political and economic
practice and theory, as expounded elsewhere than in the courts,
adjusted themselves in a great degree to the changed conditions
of society; but our judges have been trained in a legal philosophy
that only slowly changes.
The nineteenth century lawyer was a product of the economics
of Adam Smith and of the jurisprudence of Blackstone. Like his
teachers he came to regard the iC
fundamentals ” of the individualistic
philosophy as the unchanging basis of society. In legal relations the
lawyer broke from the standards only long after he had discarded
part, at least, of the laissez faire doctrine in economics. In fact,
the extreme of individualist legal thought came as an afterglow, long
after it had ceased to be an adequate explanation of fact. Only now
are the courts beginning to recognize the impossibility of using
Blackstone as a measure for modern legislation.
Let us look at some of the consequences of the natural-law philos­
ophy. It opposed restraint. Every individual was to allow his
talents free play. Trade was to be free, industry free, the acquisi­




28

W AG E-PAYM EN T LEGISLATION IN TH E U NITED STATES.

tion of property and its use were to be subject to the minimum of
State control. In our law this came to mean, it was asserted by
Mr. Joseph H. Choate in the Income Tax cases/ that one of the
fundamental objects of government “ was the preservation of the
rights of private property.” The Wisconsin Supreme Court2
declared that the right to inherit by will does not depend on legisla­
tion; it is absolute and inherent. The right to liberty is an inherent
right, according to the philosophy of individualism; and, as it in­
volves the idea of property, it follows that the liberty of the indi­
vidual is one of the most vital objects which the Government has to
defend. As Blackstone 3declares:
*
* * pukiic good is in nothing more essentially interested than in the protec­
tion of every individual’s private rights * * * .

A corollary from these statements sets a limit to what can be done
by legislation. If the protection of rights is the limit of public
action, the individual can not be restrained in his liberty of contract
merely because he would harm himself. There must be some
danger to the public health, safety or morals to justify interference.
A further result of the emphasis on general demand as a necessary
element for the justification of a law is that the judiciary and the
legal profession are prejudiced against new legislation.4
Natural law means the expression of principles universally appli­
cable. But principles of universal application are few. Hence, legis­
lation must be limited in amount. Class legislation, too, will be
looked upon with severity. There can be no easy adaptation of the
law to particular cases, if law must apply impersonally to all. Its
very generality, in such cases, would make it an instrument of
injustice.
SU R V IV A L OF FORMALISM.

The second cause of the present attitude of our courts toward free­
dom of contract is a tendency to follow the logical development of a
legal concept, no matter what its relation to facts. We need an infu­
sion of pragmatism into our legal thinking. Examples are hardly nec­
essary, so well known is it that the decisions of our courts on freedom
of contract are the product of formalistic, artificial reasoning, inca­
pable of more than superficial analysis.
Some courts refuse to inquire into the motives or facts lying back
of legislation, even though the number of laws passed on the subject
can not be left without comment. One court5 declared “ theoreti­
cally there is among our citizens no inferior class,” and refrains from
1 Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 534, A pr. 8, 1895; and to the same effect see W ynehamer
v. People, 13 N . Y . 386, Mar., 1856.
2 Nunnemacher, Trustee, v. State, 129 W is. 190-234, June 21, 1906.
3 Sir W illiam Blackstone: Commentaries on the Laws of England, Chicago, 1899, vol. 1, p p . 129,130.
< People of State of N ew Y ork ex rel. Rodgers v. Coler, 166 N . Y . 14, Feb. 26, 1901.
5 Frorer et al. v. People, 141 111. 171,186, June 15, 1892.




ATTITUDE OF TH E COURTS TOWARD FREEDOM OF CONTRACT.

29

considering whether or not the theory is borne out by facts. A
decision,1now reversed, but which for years retarded social legislation
in Illinois, held that grown men and women, being both sui juris, had
the same rights, hence the hours of labor of women could not be
restricted by law, because to do so violated their freedom of contract.
The legislature can not take intp consideration in the making of laws
the subserviency of one class to another in the matter of labor con­
tracts in specified industries, but must respect the legal, theoretical
equality of all.2 Employer and employee are equal before the law
in the power of the making of contracts, whether the employer is a
great railroad company, or an employee one whose only commodity
is his labor.3
The courts, in denying the constitutionality of that type of legis­
lation designed to restore to the laborer some measure of equality
which new economic conditions have destroyed, have pronounced
against its motive as “ insulting,” and that the legislature must have
worked on the assumption “ that the employer is a knave and the
laborer an imbecile.” It places upon both employer and employee
the badge of slavery.4 It is insulting to the employee’s manhood,5
degrading,6 creates a class of statutory laborers,7 and puts him under
guardianship.8
Arguments of this sort heard out of a court room are hollow, a
travesty on the uses of logic, rather than an illustration of its value.
Only recently has there appeared any modification of their use. The
courts have clung to principles in jurisprudence which are admit­
tedly outgrown and cast aside in every other field. The freedom of
initiative is denied in economic affairs, as is illustrated, to cite a
single example, by our antitrust acts. The people are giving party
organizations increasing legal rights and duties and refusing them
the privilege of being independent of the laws. Yet in the legal
interpretation of the very laws intended to carry us away from the
conditions brought about by laissez faire philosophy, we cling close
to the theory we seek elsewhere to abandon.!
LEGALISM.

Along with devotion to certain theories of the philosophy of natu­
ral law, and one of the main supports, goes the rigid insistence of
the application of the principle of stare decisis et non quiet a movere.
As parliamentary legislation has to a large degree removed the early
1 Ritchie v. People, 155 111. I l l, Mar. 14, 1895.
2 State of Kansas v. Haun, 61 Kans. 162, Dec. 9, 1899.
3 Adair v. U . S., 208 U. S. 175, Jan. 27, 1908.
* State v. F. C. Coal & Coke Co., 33 W . Va. 190, 191, N ov. 18, 1889.
5 Godcharles & Co. v. Wigeman, 113 Pa. St. 437, Oct. 4, 1886.
« State v. Goodwill, 33 W . Va. 186, N ov. 18, 1889.
7 People ex rel. Warren v. Beck, 144 N . Y . 225-228, October, 1894.
s Braceville Coal Co. v. People, 147 111. 66, 74, Oct. 26, 1893. State v. Haun, 61 Kans. 162, De^. 9, 1899.




30

W AGE-PAYM EN T LEGISLATION IN THE UNITED STATES.

freedom of the courts in expanding the intent of the law resulting
in judicial lawmaking, there is now less occasion for a revision of
opinion of former decisions given under conditions that may have
been outgrown. In countries where legislation has no legal bounds,
as in Great Britain, such a development has no serious consequences,
since the abuse, being called to the attention of the legislature, can
be remedied by a new law. But where the principle of stare decisis
is joined with constitutional guaranties the result may be far
different.
If the constitution is difficult to change, or for practical purposes
unchangeable, as is the case with our Federal Constitution, the rigid
application of the principle with reference to the constitutional
guaranties may not only encumber the advance of the law but make
of the constitution a positive check on needed legislation. Even
under such conditions, it is true, judicial decisions will gradually be
modified or reversed under the influence of public opinion. Witness
the vacillation of judicial opinion shown in the cases on regulation
of public utilities and the income tax. The process is tedious, and in
the meantime wrongs of long duration may continue unrelieved.
Precedent on precedent piling up to strengthen an opinion, which
originally may have been given by a much divided court, builds a
wall around the decision that imparts to it a strength not its own.
The law becomes a set of formulas without relation to the changing
conditions of actual life, and, like the bony skeleton of the coral plant,
continues with the life of which it no longer forms a part.
It was not the object of those who framed the constitutions and
bills of rights of the United States to create such a condition. They
aimed to guarantee practical, not theoretical, liberty. The framers
sought to protect the individual against the infringement of his rights
by any arbitrary action on the part of the Government and thereby
to increase his real liberty. They could not foresee, in their most
extravagant imaginings, the wonderful growth of the New World,
the congested cities, the great industries, the marvelous commercial
enterprises. They could not know that want would make bitter the
competition for work; that in time it would be necessary to create
laws to restrain the laborer, or individual, from voluntarily, or under
economic pressure, surrendering his liberties for the privilege to work,
ILLOGICAL SEPAR ATION OF L A W AN D FACT.

A fourth characteristic of our law which, especially in legislation
involving freedom of contract, tends to make our advance slow, is
our rigid separation of law and fact. This sustains the superficiality
of the viewpoint discussed under preceding paragraphs.
The use of the jury has necessitated at least a rough division of
questions into those of law and those of fact. The division is by no




ATTITUDE OF THE COURTS TOWARD FREEDOM OF CONTRACT.

31

means logical, and the court is often called upon to decide involved
questions that are really questions of fact. In passing on questions
of fact in relation to cases involving labor legislation, the tendency
has been for the judge to approach the problem from the same point
of view which he would adopt in differentiating law and fact in a
jury case. He adopts an artificial measure. The question he puts
to himself is, What is the legal rule by which the fact is to be deter­
mined? The natural law—common law—attitude obliges him to
adopt an artificial standard. He looks at the facts, not as he would
if they were presented to him as circumstances of every day life, but
with the desire to square them with a general rule of law—some
unchangeable principle, the same yesterday, to-day, and that will be
the same forever. This point of view is especially unfortunate when
constitutional questions are involved. It discourages new classes of
legislation, for it tends to the conclusion that if a law is constitutional
to-day it must always be so; if it was not constitutional at the time
of the making of the constitution it can never be so. Yet in fact a
restraint which might be justifiable to-day might have been a serious
inroad on liberty 50 years ago under simpler conditions of life, and a
restraint unjustifiable now may become an imperative need a gen­
eration hence.
An example may be taken from recent laws providing for the
regulation of the rates of public utilities. It is evident that a regu­
lation that will not be confiscatory depends upon the return to capital
in other sorts of investments. A fixing of rates, for example, which
would be confiscatory regulation during a time of commercial de­
pression may be accepted as reasonable at another and prosperous
time, when investments may provide very profitable returns. Whether
or not, in any particular case, the regulation is confiscatory may
depend purely on a question of fact. That is, facts alone may deter­
mine a question of constitutionality. But the courts must decide
whether the regulation is 1 reasonable.” Technically, it is not a
6
question of fact, and, as the courts have no organization for purposes
of investigation, they must apply some general rule of universal
application. They have, in the ordinary case, no administrative
bureaus, no commissions, no committee hearings and experts, upon
whom they may rely for investigation, as is the case with the legis­
lature. Under such conditions the court must apply its artificial
rule, or assume that the legislature has done its duty and allow the
law to stand.1
No other factor has contributed more to overthrow social legisla­
tion than this ignorance of the situation that the law was intended
to remedy, and the inability or unwillingness of the court to accept
i See discussion and review of cases on power of State industrial commissions to issue orders, b y Lindley
D . Clark, U. S. Bureau of Labor Statistics M onthly R eview , July, 1916, V o l. I l l , N o. 1, pp. 136-147.




32

W A G E-PAYM EN T LEGISLATION IN TH E UNITED STATES.

evidence as to what were the facts on what was technically a question
of law.1 Cases such as those involved in rate making (especially where
a rate commission has made a preliminary investigation as to what is
reasonable) may bring the conditions so clearly before the courts as
to induce a change of viewpoint in regard to other legislation. The
facts in a case are familiar to those in certain public and semipublic
positions, but usually are not easily accessible to the courts. When
the “ reasonableness” of a law depends upon the proper authoritative
knowledge of fact, and the constitutionality depends upon the reason­
ableness of a law, the importance of facts is made manifest. Sub­
jected to whatever explanation of their theories on social legislation,
the theories of many of the courts do not meet the facts of modern life.
The declaration of the court that contracts with laborers can not be
prohibited or interfered with without violating the Federal Constitu­
tion 2 is one which is not tenable, one which is already subject to
important exceptions, and one which may be so modified as to allow
an indefinite but wide degree of regulation. Regulation may succeed
contract as contract succeeded status.
Protest against the usual attitude of the judiciary has not been
confined to laymen. After a long service in the Supreme Court of
Massachusetts, Justice Oliver Wendell Holmes, later of the Supreme
Court of the United States, declared: 3
I think that the judges themselves have failed adequately to recognize their duty
of weighing considerations of social advantage * * * I can not but believe that if
the training of lawyers led them habitually to consider more definitely and explicitly
the social advantage on which the rule they lay down must be justified, they some­
times would hesitate where now they are confident, and see that really they were
taking sides upon debatable and often burning questions. * * * For the rational
study of the law the black-letter man may be the man of the present, but the man of
the future is the man of statistics and the master of economics. It is revolting to have
no better reason for a rule of law than that so it was laid down in the time of Henry IV.
It is still more revolting if the grounds upon which it was laid down have vanished long
since and the rule simply persists from blind imitation of the past. * * * We have
too little theory in the law rather than too much, especially on this final branch of
study.
1 “ H ow can the Supreme Court at W ashington have conclusive judicial knowledge of the conditions
affecting bakeries in New Y ork ? If it has not such knowledge as a matter of fact, can it be a matter of law
that no conditions can reasonably be supposed to exist which would make such an enactment, not neces­
sarily wise or expedient (for no one attributes to any court, State or Federal, a general jurisdiction to
review legislation on the merits) but constitutional?’ ’ Frederick Pollock: New Y ork Labor Law and the
fourteenth amendment, in Law Quarterly R eview , July, 1905, vol. 21, p. 212.
2 See New Y ork v. Lochner, 177 N. Y . 145, Jan. 12, 1904.
8 O. W . Holmes: Path of the law, in Harvard Law R eview, March, 1897, vol. 10, N o. 8, pp. 467-469, 476.
See also, Felix Frankfurter: Constitutional opinions of Justice Holmes, in Harvard L aw R eview , April,
1916, vol. 29, No. 6, pp. 683-699.




CHAPTER IV.—RATES OF WAGES.
IN PRIVATE EMPLOYMENTS.

In no department of legislation in the United States has there been
such a rapid and radical divergence from accepted legal standards as
that under the designation of labor* legislation. This radical depar­
ture is clearly shown in the bills that have been introduced in the
State legislatures, and in the laws that have had their initiative in
the past five years, fixing a minimum wage in private employments.
For 200 years it had been a fixed principle of law that the legis­
lature could not regulate the compensation of employees in private
employments. To do so would be to infringe on the constitutional
liberty of the employer and employee to enter into contracts not
violative of positive law or against public policy.1 The State of
Louisiana even incorporated an express provision in her fundamental
law that “ no law shall be passed fixing the price of manual labor.” 2
State intervention in the matter of contracts and wages is no
novelty, however. It has already been shown that governments
early assumed the power to regulate wages in private employments
and this statement is only an apparent contradiction of what was
said in the opening paragraph. Governments, it is true, did regulate
wages, but the regulation was in favor of the employer.3 It was
'clearly demonstrated, as we have shown, that legislatures were not
wanting in the higher instinct of social welfare to benefit the employee
by legislation, but the insurmountable obstruction to the legal
application of such laws, the courts declared with pious iteration
and reiteration, was the sacred, inviolate, inflexible, immutable
constitution. It would be considered reactionary now, and would
meet with great disfavor, to fix a wage above which no employer
might pay his employees a maximum rate of wages under penalty
of fine or imprisonment, or both. Nor has the attempt previously
been made in the United States to invalidate or prohibit contracts
between employer and his male employee providing for the payment
of a larger or smaller wage.4
1 C. G. Tiedeman: State and Federal Control of Persons and Property, St. Louis, 1900, vol. 1, pp. 316612; vol. 2, pp. 613-943. T . M. Cooley: Constitutional Limitations, Boston, 1903, pp. 196-198. Ernst
Freund: Police Power, Public P olicy and Constitutional Eights, Chicago, 1904, sec. 318, pp. 303-304.
C. B . Labatt: Law of Master and Servant, Rochester, 1913, vol. 2, Wages—Hours of Labor.
2 Louisiana Constitution, 1868, title 1, art. 11; 1879, art. 49; 1898, art. 51.
3 M. Lavasseur: La Population Frangaise: Histoire des classes ouvrieres avant 1789 et demographie d ela
Trance co m p a re a celle des autres nations au 19° sieele, Paris, 1889-1892.
4 R . M. Benjamin: Power of State legislatures to fix the minimum amount of wages to coal miners, 64
A lbany Law Journal, October, 1902, pp. 349-355.

105598°— 18— Bull. 229-------3




33

34

W A G E-PAYM EN T LEGISLATION IN TH E UNITED STATES.

An exception to this rule arose in connection with a case 1 decided
in 1895 by the Supreme Court of the United States. Congress made
it a misdemeanor for any person prosecuting a claim for a pension to
receive a larger fee than $10 for his services. This act was held to
interfere with no liberty of contract, because Congress, having the
power to grant or withhold certain privileges, could specify all the
conditions under which any claims or applications for pensions
should be prosecuted. The court, through Mr. Justice Brewer, said:
It is within the undoubted power of government to restrain some individuals from
all contracts as well as all individuals from some contracts. It may deny to all the
right to contract for the purchase or sale of lottery tickets; to the minor the right to
assume any obligations except for the necessaries of existence; to the common carrier
the power to make any contract releasing himself from negligence, and, indeed, may
restrain all engaged in any employment from any contract in the course of that employ­
ment which is against public policy. The possession of this power by government
in no manner conflicts with the proposition that, generally speaking, every citizen
has a right freely to contract for the price of his labor, services, or property.2
LEGAL MINIMUM W AG E S.3

Within the past two decades a world-wide movement has been set
in motion to counteract the antisocial effects of the laissez faire doc­
trine as respects the wage conditions of the labor contract. Fixing a
general minimum wage by legislation, and the gradual abandonment
of the entire principle of wage competition in industry, are not the
objects of this spontaneous world-wide movement. The legislation
prevents labor from forcing the income below a living wage, as labor
would do if it were privileged to bid against itself. Obviously, legis­
lation of this character is a protection against suicidal wage com­
petition. For it is self-evident that under these laws there is a point
below which labor as a commodity may not bid, but above which
there may be legitimate competition.
This restriction of labor competition reciprocally affects the indus­
tries that employ labor. For it logically follows that that industry
which is unable to pay a living wage to its employees, but forces
them to become public charges because of their meager, inadequate
1 Frisbie v. U . S., 157 U . S. 160; 15 Sup. Ct. 586-589, Mar. 18, 1895. See also W olcott v. Frissell, 134 Mass.
1-4, Jan. 3, 1883; Regulation of attorney’s fees for the prosecution of claims against the United States, in
Harvard Law Review, 1916, vol. 29, N o. 3, pp. 328-330.
2 Frisbie v. United States, 157 U . S. 165-166, Mar. 18, 1895.
3 J. A . R yan: A Living W age, Its Ethical and Econom ic Aspects, New Y ork, 1906.
Social Standards for Industry, platform b y the committee on standards of living and labor, National
Conference of Charities and Correction, proceedings. 1912, pp. 388-395.
I.
O. Andrews: Minimum W age Legislation, New Y ork Factory Investigating Commission, third
report, appendix 3, reprint, A lbany, 1914.
J. B . Kaiser: Law , Legislative, and Municipal Reference Libraries, Boston, 1914, pp. 200-207.
American Labor Legislation Review, December, 1916, vol. 6, N o. 4, pp. 383-399.
J. R . Commons and J. B . Andrews: Principles of Labor Legislation, New Y ork, 1916, pp. 167-196.
Arthur N . H olcom be: Legal m inimum wage in the U nited States, in Am erican E conom ic R eview ,
March, 1912, V ol. II, No. 1, p p . 21-37.




BATES OF WAGES.

35

remuneration, is itself an industrial pauper of the worst type, because
not so easily identified. The public is unjustly taxed to sustain such
industries, and their elimination is a social beneficence.
The effect of this economic movement has a broader, deeper
meaning than is apparent on the surface. Laws affecting wages
are immediate in their operation. But laws affecting the working­
man, the working woman, the working child, are themselves evi­
dences of a new social effort to widen the scope of labor legislation.
These laws are new attempts to extend those ancient common
rules, established to protect public interest, to the wage item of a
labor contract, in order that the parties entering into labor contracts
may do so more nearly on the basis of equality.1
Rev. E. V. O’Hara, chairman of the Oregon Industrial Welfare
Commission, thus states the social philosophy underlying these
laws :2
*
* * The principle involved is that any industry which does not pay its
employees a living wage is parasitic in character. * * * It is self-evident that
the sum total of industries must support the whole body of workers. Any industry
which does not do so is a burden upon the industrial system. The demand is that a
living wage be made a first cost on industry. An employer does not begin to count
his profit until he has paid his rent and interest on borrowed capital. Why should
the wages which keep the laborer from starvation be accounted lower than the rents
of the landowner or the interest of the money lender?
MINIMUM W AG ES IN FOREIGN CO UNTRIES.3

New Zealand.4
—The beginning of minimum-wage legislation had
its rise in New Zealand in 1894.5 Primarily the laws had for their
purpose the settlement of trade disputes involving strikes, lockouts
or questions concerning hours of labor, rates of wages or conditions
1 S. M. Lindsay: Minimum wage as a legislative proposal in the U nited States, in Annals American
Academ y of Political and Social Science, July, 1913, vol. 48, p p . 45-53.
2 Quoted b y Florence K elley: The minimum wage law in Oregon under fire. Survey, Mar. 14, 1914, vol.
31, p p . 740,741.
3 U . S. Bureau of Labor Statistics B ui. N o. 167, A p ril, 1915. See also Bureau of Labor Statistics
Monthly R eview , V ol. I, July, 1915, to date, index, “ Minimum wages.”
4 G. H . Scholefield: N ew Zealand in E volution, New Y ork , 1909, p p . 205—219.
Mary Chamberlain: Settling labor disputes in Australia, Survey, A ug. 1, 1914, vol. 32, p p. 455-458.
Matthew B . Ham m ond: Judicial interpretation of the m inim um wage in Australia. American E co­
nom ic R eview , June, 1913, V ol. I l l , p p. 259-286.
Paul S. Collier: Minimum-wage legislation in Australasia, fourth report, New Y ork State Factory
Investigating Commission, A lbany, 1915, appendix 8, pp. 1845-2268.
Henry B. Higgins: A new province for law and order: Industrial peace through minimum wage and
arbitration, in Harvard Law R eview , N ovem ber, 1915, v ol. 29, N o. 1, p p. 13-39. R eprinted U . S. Bureau
of Labor Statistics Monthly R eview , W ashington, D . C., February, 1916, V ol. II, No. 2, p p. 1-22.
M. T. Rankin: Arbitration and Conciliation in Australasia, London, 1916.
e New Zea la n d —58 V iet. 22, Aug. 31, 1894; 59 Viet. 105, Oct. 18, 1895; 60 V iet. 199, Oct. 17, 1896; 62 Viet.
292, N ov. 5, 1898; 64 V iet. 11, Aug. 16,1900; 64 Viet. 407, Oct. 20,1900; 1 E dw . V I I, 71, N ov. 7,1901; 2 E dw .
V II, 294, Oct. 3, 1902; 3 E dw . V II, 26, Sept. 4,1903; 3 E dw . V II, 31, Sept. 24, 1903; 3 E dw . V II, 256, N ov.
20, 1903; 4 E dw . V I I, 294, N ov. 8, 1904; 5 Edw. V II, 199, Oct. 27, 1905; 5 Edw. V II, 595, Oct. 31, 1905;
6 E dw. V II, 114, Oct. 29, 1906; 8 Edw. V II, 9, Aug. 4, 1908; 8 E dw . V II, 125, Oct. 10, 1908; 1 Geo. V , 344,
Dec. 3,1910; 2 Geo. V , 174, Oct. 28, 1911; 4 Geo. V , 37, Oct. 3, 1913.




36

W AG E-PAYM EN T LEGISLATION IN THE UNITED STATES.

of work. Several of the other Australian States have followed
this type of legislation.1
Victoria.—The legislation enacted in Victoria 2 in 1896 was based
upon an entirely different reason. The Victorian wages board
law was directed against the evils of sweating, particularly among
home workers. This type of legislation has also been copied by
several of the Australian States.3
Canada.—The Canadian Industrial Disputes Investigation A ct4
follows in general the principles of the New Zealand legislation up to
the establishment of the arbitration court, but the compulsory feature
is lacking. The board of investigation and conciliation may publish
its findings only when no agreement is reached.
England.—After a careful investigation and report5 had been made
on the results of the practical application of the Australian legisla­
tion, Parliament passed the Trade Boards Act.6 Under this act,
wage or trade boards may be established in England for all employees
1 New South W ales.—60 V iet. 152, N ov. 16, 1896. This act was amended Dec. 29, 1909, as the Factories
and Shops A ct. Short title: This act may he cited as the “ Factories and Shops (Am endm ent) A ct, 1909/7
and shall be construed w ith the Factories and Shops A ct of 1896, hereinafter referred to as the Principal
A ct. 8 E dw . V I I, 1, A pr. 24, 1908; 8 E dw . V I I, 118, Dec. 21, 1908; 9 E dw . V I I, 149, Dec. 20, 1909; 1 Geo.
V , 12, A ug. 9, 1910; 1 Geo. V , 63, Sept. 6, 1910 (Clerical W orkers’ A ct); 2 Geo. V , 158, A p r. 15,1912.
3 Geo. V , 370, N ov. 26,1912. Factories and Shops (N o. 2): A n act to consolidate the enactments relating
to the making provision for a m inimum wage for certain persons and for the paym ent of overtime and
tea m oney.
Western A ustralia—2 E dw . V II, 533, Feb. 19, 1902; 9 E dw . V I I, 141, Dec. 21, 1909; 3 Geo. V , 203, Dec.
21,1912: A n act, in effect Jan. 1,1913, to amend and consolidate the law relating to the settlement of indus­
trial disputes b y arbitration.
Australian Commonwealth.—4 E dw . V II, 15, Dec. 15, 1904; 9 E dw . V I I, 126, Dec. 13, 1909, amended,
short title: “ The principal act, as amended b y this act, may be cited as the Commonwealth Conciliation
and Arbitration A ct, 1904-1909.” 1 Geo. V , 5, Aug. 29, 1910. Am ended Commonwealth Conciliation
and. Arbitration A ct, 1904-1910; 2 Geo. V , 11, N ovem ber, 1911, amended, know n as Commonwealth and
Conciliation and Arbitration A ct, 1904-1911.
2 V ictoria.—60 V iet. 3, July 28,1896, amended and repealed act of 1893; 60 V iet. 161, Dec. 24,1896; 61 Viet.
357, Sept. 27,1897; 62 V iet. 211, Dec. 20,1898; 63 V iet. 417, Feb. 20,1900; 2 E dw . V I I, 47, Dec. 5, 1902; 3 E dw .
V II, 21, Oct. 30,1903; 4 E dw . V II, 219, N ov. 30,1904; 5 E dw . V I I, 45, Oct. 6,1905; 5 E dw . V I I, 259, Dec. 12,
1905; 7 E dw . V I I, 469, Dec. 23,1907; 9 E dw . V I I, 275, Mar. 2,1909; 9 E dw . V I I, 585, Jan. 4,1910; 1 Geo. V ,
437, Jan. 4,1911; 1 Geo. V , 689, Jan. 4,1911; 3 Geo. V , 117, Dec. 7,1912; 3 Geo. V , 751, Dec. 31, 1912; 5 Geo.’
V , 219, N ov. 2, 1914.
3 South Australia.—Factories A ct, Dec. 5, 1900; 7 E dw . V II, 945, Dec. 21, 1907; 8 E dw . V II, 961, Dec. 23,
1908; 1 Geo. V , 1020, Dec. 7, 1910; 3 Geo. V , 1110, Dec. 19, 1912, know n as the Industrial Arbitration A ct of
1912.
Queensland.—64 Viet. 28, Dec. 28,1900,9 Statutes, 7216; 8 Edw . V II, 4, A pr. 15,1908, Statutes 9244; 8 E dw .
V II, 8, A pr. 15,1908, Statutes 9261. Wages Boards A ct of 1908, cited w ith Factories and Shops A cts, 1900
to 1908.
Tasmania.—1 Geo. V , 511, Jan. 13,1911; Wages Boards A ct, 1910; 1 Geo. V , 467, Jan. 13,1911. Factories
A ct 1910, pt. 8, Minimum wage, 4 s. (97.3 cents) a week the first year, 7 s. ($1.70) a week the second year,
an increase of 3 s. (73 cents) until 20 s. ($4.87) a week is reached and thereafter not less than 20 s. ($4.87) a
week. 2 Geo. V , 597, Sept. 14,1911. Am ended Wages Boards A ct; 3 Geo. V , 867, Jan. 10, 1912; 4 Geo. V ,
819, Dec. 24, 1913.
4 Canada.—6-7 E d w . V II, ch. 1, p . 235, Mar. 22, 1907; 9-10 E dw . V I I, ch. 1, p . 243, May 4,1910.
e Report to the Secretary of State for the H om e Departm ent on the Wages Boards and Industrial Con­
ciliation and Arbitration A cts of Australia and New Zealand, London, 1908.
Constance Smith: W orking of the Trade Boards A ct in Great Britain and Ireland, Journal Political
E conom y vol. 22, July 1914, p p . 605-629.
6 England.—9 E dw . V II, ch. 22, p . 91, Oct. 20, 1909, Trade Boards A ct, in effect Jan. 1, 1910. A ct
extended and confirmed 3-4 Geo. V , ch. 162, p . 320, A ug. 15,1913.




RATES OF W AGES.

37

in any industry by order of the board of trade subject to ratification
by Parliament. The act at first applied to the four trades of tailor­
ing, box making, lace making, and chain making. It has since been
extended to cover many other industries.
In 1912 the Coal Mines Act1 was passed applying the principles of
the minimum wage to all workmen employed underground in coal
mines in England.
Germany.—Germany passed a Home Work A c t2 in 1911, which
sets up trade committees whose duties, while not directly touching
the question of wage regulation, may very easily be extended to
include it.
France.—France adopted the principle of the minimum wage by
the enactment of a law3 which provides for special boards to fix
such a wage for women employed in home work in the clothing
industry.
MINIMUM W AGES IN T H E UN ITED ST ATE S.

It was not until the legislation in England had been successfully
tried and studied that a movement was begun for similar legislation
in the United States.4 However, there exists an early Virginia
statute which provided that a reasonable sum shall be paid for
services in salvage, and in case of the failure of the parties interested
to agree, a board shall be selected to determine the rate.5
Massachusetts.—The Legislature of Massachusetts in 1911 author­
ized the creation of a minimum wage commission to investigate and
“ to study the matter of wages of women and minors and to report
on the advisability of establishing a board or boards to which shall
be referred inquiries as to the need and feasibility of fixing minimum
rates of wages for women and minors in any industry.” 6 This was
the first commission created for this purpose in America. The
report7 of the commission was made in 1912, and in the same year the
legislature passed an act8 embodying in general the recommenda1 England.—2 Geo. V , ch. 2, p p . 2-7, Mar. 29,1912. Coal Mines (Minimum Wage) A ct, 1912.
2 Germany.—H om e W ork A ct, Dec. 20,1911, effective A pr. 1,1912.
3 France:—A ct July 10,1915, becomes part of Labor Code, 1910, book 1, titles 3 and 5, art. 33-33N, 99a 107.
See U . S. Bureau of Labor Statistics M onthly R eview , Washington, D . C., December, 1915, V ol. I,
N o. 6, p. 36.
Roumania.—A ct Dec. 23, 1907 to Jan. 5, 1908. A ct relating to agricultural contracts, sec. 65a, creates
district commissions to determine the m inim um rate of wages lawful in agricultural contracts. See: Bui.
International Labor Office (E ng. E d .), 1910, vol. 5, p p . 141-148.
* Laws of the various States relating to a m inim um wage for wom en and minors. Michigan State library,
legislative reference department, B ui. 5, 1913. See also recomm ended draft of a minimum-wage bill, Na­
tional Consumers’ League, N ew Y ork, 1913, p p . 53-57.
The case for the m inimum wage, Survey, Feb. 6,1915, vol. 33, N o. 19, p p. 487-515.
Minimum-wage Legislation in the U nited States and Foreign Countries, U. S. Bureau of Labor Sta­
tistics B ui. N o. 167, A pril, 1915.
5 Virginia.—A cts of 1852, p. 74.
®Massachusetts.—A cts and Resolves of 1911, ch. 71, p p. 1065-1066.
7 Minimum W age Commission of Massachusetts, report, January, 1912.
s Massachusetts Acts and Resolves.—Acts of 1912, ch. 706, p p. 780-784, effective July 1,1913; amended
1913, ch. 330, p . 271, and ch. 673, p . 618-621; 1914, ch. 368, p. 335; 1915, ch. 65, p p . 54-55; 1916, ch. 303, p . 253.




38

W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

*

tions made, but substituting publicity for the penalty for failure to
pay the rates determined.1
It is worthy of more than passing comment that the first wage
board to be appointed in the United States was the Massachusetts
Brushmakers’ Wage Board. It submitted a report to the commis­
sion on June 12, 1914, and the first wage determination went into
effect August 15, 1914.2
Ten States have followed the example of Massachusetts in the
enactment of minimum-wage laws.3 The laws of these States pro­
vide for commissions or place the enforcement of these laws under
existing commissions to deal with the matter of establishing mini­
mum-wage rates.
California, Oregon, Washington, and Kansas place the adminis­
tration of their laws in industrial welfare commissions; Colorado in
a State wage board; Massachusetts, Minnesota, and Nebraska in
minimum-wage commissions; Wisconsin in the industrial commis­
sion; Utah in the commissioner of immigration, labor, and statis­
tics, and Arkansas in the commissioner of labor and statistics.4
Several States 5 have provided for investigations similar to those
made by the preliminary commission of Massachusetts.
1 Minimum Wage Commission o f Massachusetts, first annual report, 1913, Public Docum ent N o. 102.
W age Commission of Massachusetts, Bui. N o. 3, A ug. 15, 1914.
See U . S. Commission on Industrial Relations, W ashington, D. C., final report 1915, p. 92-93, p. 364-365.
s California A cts of 1913, ch. 324, pp. 632-637, amended 1915, ch. 571, p. 950; Colorado Acts of 1913, ch. 110,
p p . 407-411, amended 1915, ch. 180, pp. 562-587; Minnesota Acts of 1913, ch. 547, pp. 789-793. The Minnesota
law was held unconstitutional in a district court on N ov. 23,1914. The court took the ground that it was
beyond the pow er of the legislature to delegate its power to a State commission to determine whether
minimum-wage schedules should be ordered or not. Appeal has been taken to the State supreme court.
Nebraska A cts of 1913, ch. 211, p p. 638-642; Oregon Acts of 1913, ch. 62, pp . 92-99, amended 1915, ch. 35,
pp.48-49; W ashington Acts of 1913, ch. 174, pp. 602-608, amended 1915, ch. 68, p p .243-244. The Washington
law was upheld in the superior court at Tacoma, W ashington, May 18, 1916, in the case of Stair v. Ander­
son. W isconsin Acts of 1913, ch. 712, pp . 991-994; Utah Acts of 1913, ch. 63, p . 94; Arkansas Acts of 1915,
ch. 191, p p . 781-788. The Arkansas law is unique in that it provides a statutory rate and also a commission
with authority to fix rates. Kansas A cts of 1915, ch. 275, p p. 352-358.
4 See American Labor Legislation R eview , N ew Y ork , December, 1916, v o l. 6, N o. 4, pp . 383-399,
for main provisions of minimum-wage laws in the United States and m inimum-wage awards in the United
States up to Jan. 1,1917.
5 Connecticut Special A ct of 1911, ch. 276, p. 272, authorized appointm ent b y governor o f special indus­
trial commission to investigate conditions o f wage-earning wom en and children in the State. See report
o f special commission, Hartford, Conn., Feb. 4,1913. A cts of 1913, ch. 233, p. 1876, commissioner of labor
statistics authorized to investigate wom an and child labor in the State.
See The conditions of wage-earning w om en and girls, R eport Bureau of Labor Statistics, Hartford,
Conn., Jan. 5,1916.
Indiana Acts of 1913, ch. 262, p p. 707-708, provided for commission to investigate hours and conditions
of labor of wom en and minors.
K entucky, governor appointed a commission to investigate the conditions o f working wom en in Ken­
tucky. Report of commission, Decem ber, 1911, p. 13, recommends legislation to authorize appointm ent
o f commission to investigate advisability o f establishing boards to fix m inimum rates o f wages for wom en
and minors. W hat seems to be supplementary to this investigation o f the commission and possibly the
result of the work of the commission is a law passed and approved b y the governor, Mar. 14,1912. It is
an act “ to regulate the em ploym ent of females in order to safeguard their health.” Kentucky A cts of
1912, ch. 77, pp. 232-235.
New Y ork A cts of 1911, ch. 561, p p . 1269-1270, provided for a com m ission to investigate the conditions
under w hich manufacture is carried on. Acts of 1912, ch. 21, p. 36; Acts of 1913, ch. 137, pp. 228-229, contin­
ued the commission and enlarged the scope of the investigation so as to include an inquiry into the wages

2 Minimum




BATES OE W AGES.

39

There are several respects in which the American minimum-wage
legislation differs from that of Australia, New Zealand, and England.
Men are not included in the scope of such laws. The laws are based
upon the idea of the welfare of the people as a whole. Finally, the
legislation places the burden upon the State to prove in the courts
that it is acting within its police powers when it creates a State wage
commission, board, or conference.
N o t e .— In contrast to these minimum-wage laws is a Louisiana law prohibiting
combinations to fix wages. “ It shall be unlawful for any corporation, not domiciled
in the State of Louisiana, to enter into any combination or agreement with another
corporation to prevent its legally authorized representatives in Louisiana from accept­
ing a higher compensation than the corporations, parties to the aforesaid agreement,
pay.” Acts of 1904, ch. 182, pp. 412-413.

Oregon.—The constitutionality1 of the Oregon law 2 was the
first3 to be tested. Suit was brought by Frank C. Stettler against
Edwin V. O-Hara and others, constituting the industrial welfare
commission, to vacate and annul an order of the commission fixing
$8.64 a week as a minimum wage for adult women employed in
manufacture,4 and to enjoin its enforcement. Upon appeal to the
supreme court, it was held that the statute was within the police
power of the State and did not deny equal protection of the laws.
Judge Eakin delivered the opinion5 thoroughly covering the cases on
the subject of maximum hours of labor, and stated:
*
* * Every argument put forward to sustain the maximum hours law,6 or upon
which it was established, applies equally in favor of the constitutionality of the mini­
mum-wage law as also within the police power of the State and as a regulation tending
to guard the public morals and the public health.
of labor in all industries and em ploym ents. N ew Y ork State factory Investigating Commission, A lbany,
N. Y ., final report (5 vol.), Feb. 15,1915, vol. 1, p. 291; vol. 4, pp. 14-61.
Michigan A cts of 1913, ch. 290, p p. 551,552, provided for a commission to study the cost of living of em­
ployed wom en. See Report State Commission of Inquiry, Lansing, M ich., Jan. 27,1915.
Ohio Acts of 1913, pp . 654-655, authorized the Industrial Commission to investigate the hours per day
and week, and wages of wom en employees in all mercantile industries in the State.
Idaho Acts of 1915, ch. 136, p. 294, provided for a commission to report on advisability of establishing a
minimum-wage board.
Missouri provided for senate wage commission for wom en and children, to investigate advisability of
minimum-wage legislation. See Report of Senate W age Commission for W om en and Children,
Missouri, Feb. 4,1915.
1 R om e G. Brown: Minimum W age, Minneapolis, 1913.
2 Oregon.—Acts of 1913, ch. 62, pp. 92-99.
3 The Minnesota minimum-wage law was held unconstitutional in a district court o f the State on N ov.
23,1916, on the ground that it was beyond the power of the legislature to delegate its power to a State com ­
mission to determine whether minimum-wage schedules should be ordered or n ot and that the establish­
ment o f m inimum wages b y the State is an unwarranted restriction upon the right to contract for per­
sonal services. Appeal taken to the State supreme court. See L indley D . Clark: Court decisions on
power of State industrial commissions to issue orders, in U . S. Bureau of Labor Statistics Monthly
R eview , W ashington, D . C., July, 1916, V ol. I l l , N o. 1, p p. 136-147.
4 This was the first wage rate for wom en made in America b y a State com m ission authorized to fix a
minimum wage.
5 Stettler v. O’ Hara, 69 Oreg. 519-41, Mar. 17,1914; also Simpson v. O’ Hara, 70 Oreg. 261-263, Apr. 28,
1914. See appendix to the briefs filed on behalf of respondents, b y L. D . Brandeis, assisted by Josephine
Goldmark, New Y ork , 1913.
e Muller v. Oregon, 208 U. S. 412-423; 28 Sup. Ct. 324-327, Feb. 24, 1908. See brief for defendant in
error, b y L. D. Brandeis, assisted by Josephine Goldmark, W ashington, D . C., 1908.




40

W A G E -P A Y M E N T LEG ISLATION IN

T H E U N IT E D STATES.

Plaintiff further contends that the statute is void for the reason that it makes the
findings of the commission on all questions of fact conclusive, and therefore takes his
property without due process of law.
Due process of law merely requires such tribunals as are proper to deal with the
subject in hand. Reasonable notice and a fair opportunity to be heard before some
tribunal before it decides the issues are the essentials of due process of law. It is
sufficient for the protection of his constitutional rights if he has notice and is given an
opportunity at some stage of the proceeding to be heard.
We think we should be bound by the judgment of the legislature that there is a
necessity for this act; that it is within the police power of the State to provide for the
protection of the health, morals, and welfare of women and children, and that the
law should be upheld as constitutional.

This decision is important for two reasons. It exhibits the in­
creasing tendency of the courts to view such legislation from the
economic and social rather than from the legal aspect, and since it is
the first case of the kind in the United States it will have great
influence in determining the whole question of minimum-wage regu­
lation as applied to private employments.
An appeal was taken to the United States Supreme Court.1 The
case was argued for the first time before the court on December
17, 1914, and on June 12, 1916, the court ordered a reargu­
ment. The court delivered its opinion, without report, in
April, 1917, sustaining the decision of the Oregon supreme court
as to the constitutionality of the law. The court was evenly
divided in its opinion; four justices held the law constitutional,
while four justices held it to be unconstitutional. One justice,
having been of counsel, could not express an opinion. The effect
of this decision of the United States Supreme Court in an equally
divided opinion is that the law stands as constitutional, since the
Oregon supreme court held previously that it was constitutional.
Otherwise, had the Oregon court held adversely, the equal division
of the United States Supreme Court would have had the effect of
annulling the law. No more striking illustration could be sum­
moned to point out the constant peril to which all social legislation
is subject under the power possessed by the State and Federal courts
to review legislation under the fifth and fourteenth amendments to
the Constitution of the United States.
At practically the same time that the decision in the Stettler case
was rendered the United States Supreme Court passed upon another
Oregon law upholding its constitutionality. The Oregon Legisla­
ture passed an a c t2 currently called the 10-hour law. Section 2 of
the statute provided as follows:
No person shall be employed in any mill, factory, or manufacturing establishment
in this State more than ten hours in any one day, except watchmen and employees
when engaged in making necessary repairs, or in cases of emergency, where life or
i Stettler v. O’ Hara, October term , 1916.




2 Oregon.—A cts of 1913, ch. 102, pp . 169, 170.

RATES OF W AGES.

41

property is in imminent danger: Provided, however, Employees may work overtime
not to exceed three hours in any one day, conditioned that payment be made for
such overtime at the rate of time and one-half of the regular wage.

Bunting was indicted for a violation of the act. He was found
guilty in the lower court, and the State supreme court affirmed 1 the
judgment. Bunting claimed the law was invalid, because it vio­
lated the fourteenth amendment of the Constitution of the United
States.
Appeal was taken to the United States Supreme Court, which
upheld the law. Three justices dissented, and one took no part in
the consideration and decision of the case. Mr. Justice McKenna
delivered the opinion 2 of the court. He said in part:
The consonance of the Oregon law with the fourteenth amendment is the question
in the case, and this depends upon whether it is a proper exercise of the police power
of the State, as the supreme court of the State decided that it is.
That the police power extends to health regulations is not denied, but it is denied
that the law has such purpose or justification. It is contended that it is a wage law,
not a health regulation, and takes the property of plaintiff in error without due
process. The contention presents two questions: (1) Is the law a wage law, or an
hours-of-service law? And (2) if the latter, has it equality of operation?
This case is submitted by plaintiff in error upon the contention that the law is a
wage law, not an hours-of-service law, and he rests his case on that contention. To
that contention we address our decision and do not discuss or consider the broader
contentions of counsel for the State that would justify the law ever as a regulation
of wages.

Ohio.—Despite the radical character of such legislation, viewed
from the historical point of view, Ohio has endeavored to make it
possible to restore the labor contract to its former basis of equality
and justice. A section of the constitution reflects the will of its
people to inaugurate a condition more nearly approximating social
justice. The Ohio constitutional convention of 1912 (Jan. 9 to
June 1) provided for the submission to the people of the State of
an amendment to the constitution, authorizing the legislature to
pass minimum-wage laws. This amendment was adopted on Sep­
tember 3, 1912.3 This action differs from that of Massachusetts
and the other States in that its provisions are general and not re­
stricted to the wages of women and minors.
California.—A resolution adopted in 1913 by the California
Legislature proposed an amendment to the State constitution
authorizing legislation to establish a minimum-wage system for
women and minors.4 The proposed amendment was adopted by
1 State of Oregon v. Bunting, 71 Oreg. 259-275, Mar. 17, 1914.
2 Bunting v. State of Oregon, 37 Sup. Ct. 435-438, ’A pr. 9, 1917.
3 Ohio constitution of 1854, amendment of 1912, A rt. II, sec. 34: 1 Laws may be passed fixing and regu­
1
lating the hours of labor, establishing a minimum wage, and providing for the com fort, health, safety, and
general welfare of all employees; and no other provision of the constitution shall impair or lim it this
pow er.”
* California Resolutions, 1913, ch. 98, p . 1746.




42

W A G E -P A Y M E N T LEG ISLATIO N IN

T H E U N IT E D STATES.

the people at an election held on November 3, 1914.1 It is quite
possible that the scope of the amendment might be such as to include
men if it could be clearly shown that a minimum-wage rate was
embraced in the authority conferred by the amendment upon the
legislature to “ provide for the comfort, health, safety, and general
welfare of any and all employees.”
There is no doubt now, in view of the recent decision of the
United States Supreme Court in the Oregon case, that the minimumwage legislation for women and minors is within the police power
of the State, nor is there any doubt that the aim of such legislation
is to better the health, morals, and welfare of a community by im­
proving the conditions of women employees in certain industries.
The question may pertinently be asked, What about this class of
legislation applied to the wages of men ? 2 And, further, Are not
the health, morals, and welfare of men equally as important to a
community as those of women? These questions may not be an­
swered here. The information may be vouchsafed, however, that
no minimum-wage laws have been enacted in the United States
covering the case of male employees, and that there is only one
State that has a constitutional provision touching the matter.3
United States.— However, the Congress of the United States
entered indirectly the realm of minimum-wage legislation for men
in the enactment of the so-called Adamson law.4 This statute estab­
lished eight hours as a legal day’s w'ork for all employees of railroads
who were actually engaged in any capacity in the operation of trains
in interstate commerce. At the same time the act provided that
the pay of such employees working on the standard eight-hour day
should not be reduced. Congress stipulated that the provisions of
the law were to take effect January 1, 1917.
Suit was immediately begun by the railroads to enjoin the en­
forcement of the act on the ground of its unconstitutionality. Agree­
ments were made to expedite the final decision in the case before the
date set for the law to take effect. The case was heard in the
1 California constitution of 1879, amendment of N ov. 3, 1914, art.,20, sec. 17J: “ The legislature may, b y
appropriate legislation, provide for the establishment of a m inimum wage for wom en and minors and
may provide for the com fort, health, safety, and general welfare of any and all employees. N o provision
of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon
any commission, now or hereafter created, such power and authority as the legislature may deem requisite
to carry out the provisions of this section. ”
2 See memorandum addressed to the joint legislative com m ittee investigating the New Y ork public
service commissions. National Consumers’ League, New Y ork, A pr. 1, 1916.
3 Ohio. S eep . 41.
4 U. S. Stat. L., 1916, vol. 39, ch. 436, p. 287:
Section 1. B e it enacted by the Senate and House of Representatives of the United States of America in Con­
gress assembled, That beginning January first, nineteen hundred and seventeen, eight hours shall, in con­

tracts for labor and service, be deemed a day’s work and the measure or standard of a day’s work for the
purpose of reckoning the compensation for services of all employees who are now or m ay hereafter be em­
ployed b y any com m on carrier or railroad, except railroads independently owned and operated not ex­
ceeding one hundred miles in length, electric street railroads, and electric interurban railroads, which are
subject to the provisions of the act of February fourth, eighteen hundred and eighty-seven, entitled “ A n




KATES OF W AGES.

43

United States District Court for the Western District of Missouri,
which held the statute unconstitutional. Upon appeal to the United
States Supreme Court the decision of the lower court was reversed.1
The court was divided in its opinion. Five justices were of the
opinion that the statute was constitutional, while four justices were
of the opposite opinion. Mr. Chief Justice White delivered the
opinion of the court, in the course of which he said:
All the propositions relied upon and arguments advanced ultimately come to two
questions: First, the entire want of constitutional power to deal with the subjects
embraced by the statute, and second, such abuse of the power, if possessed, as ren­
dered its exercise unconstitutional * * *
There must be knowledge of the power exerted before determining whether, as
exercised, it was constitutional, and we must hence settle a dispute on that question
before going further. Only an eight-hour standard for work and wages was provided,
is the contention on the one side, and in substance, only a scale of wages was pro­
vided, is the argument on the other. We are of the opinion that both are right and
in a sense both wrong in so far as it is assumed that the one excludes the other. * * *
If to deprive employer and employee of the right to contract for wages and to provide
that a particular rate of wages shall be paid for a specified time is not fixing of wages,
it is difficult to see what would be.
However, there is this very broad difference between the two powers exerted.
The first, the eight-hour standard, is permanently fixed. The second, the fixing of
the wage standard resulting from the prohibition against paying lower wages, is ex­
pressly limited to the time specified in section two. It is, therefore, not permanent
but temporary, leaving the employers and employees free as to the subject of wages
to govern their relations by their own agreements after the specified time. * * *

In answer to the first question propounded the opinion states:
We are of opinion that the reasons stated conclusively establish that, from the
point of view of inherent power, the act which is before us was clearly within the
legislative power of Congress to adopt, and that, in substance and effect, it amounted
to an exertion of its authority under the circumstances disclosed to compulsorily
arbitrate the dispute between the parties by establishing as to the subject matter of
that dispute a legislative standard of wages operative and binding as a matter of law
upon the parties— a power none the less efficaciously exerted because exercised by
direct legislative act instead of by the enactment of other and appropriate means
providing for the bringing about of such result. If it be conceded that the power to
act to regulate com m erce/’ as amended, and w ho are now or m ay hereafter be actually engaged in any
capacity in the operation of trains used for the transportation of persons or property on railroads, except
railroads independently owned and operated not exceeding one hundred miles in length, electric street
railroads, and electric interurban railroads, * * *
S e c . 2. That the President shall appoint a commission of three, which shall observe the operation and
effects of the institution of the eight-hour standard workday as above defined and the facts and conditions
affecting the relations between such com m on carriers and employees during a period of not less than six
months nor more than nine months, in the discretion of the commission, and within thirty days thereafter
such commission shall report its findings to the President and Congress; * * *
Sec . 3. That pending the report of the commission herein provided for and for a period of thirty days
thereafter the compensation of railway employees subject to this act for a standard eight-hour workday
shall not be reduced below the present standard day’s wage, and for all necessary time in excess of eight
hours such employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour
workday.
Sec . 4. That any person violating any provision of this act shall b$ guilty of a misdemeanor and upon
conviction shall be fined not less than $100 and not more than $1,000, or imprisoned not to exceed one year,
or both.

1 W ilson v. New et al., 37 Sup. Ct. 298-318, Mar. 19, 1917.




44

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

enact the statute was in effect the exercise of the right to fix wages where, by reason
of the dispute, there had been a failure to fix by agreement, it would simply serve to
show the nature and character of the regulation essential to protect the public right
and safeguard the movement of interstate commerce, not involving any denial of the
authority to adopt it.
* * * As engaging in the business of interstate commerce carriage subjects the
carrier to the lawful power of Congress to regulate irrespective of the source whence
the carrier draws its existence, * * * it follows that the very absence of the
scale of wages by agreement, and the impediment and destruction of interstate com­
merce which was threatened, called for the appropriate and relevant remedy— the
creation of a standard by operation of law, binding upon the carrier.
* * * Since whatever would be the right of an employee engaged in a private
business to demand such wages as he desires, to leave the employment if he does not
get them, and, by concert of action, to agree with others to leave upon the same con­
dition, such rights are necessarily subject to limitation when employment is accepted
in a business charged with a public interest and as to which the power to regulate
commerce possessed by Congress applied, and the resulting right to fix, in case of
disagreement and dispute, a standard of wages, as we have seen necessarily obtained.
* * * Since, conceding that, from the point of view of the private right and
private interest, as contradistinguished from the public interest, the power exists
between the parties, the employers and employees, to agree as to a standard of wages
free from legislative interference, that right in no way affects the law-making power to
protect the public right and create a standard of wages resulting from a dispute as
to wages and a failure therefore to establish by consent a standard. The capacity
to exercise the private right free from legislative interference affords no ground for
saying that legislative power does not exist to protect the public interest from the
injury resulting from a failure to exercise the private right. * * *

In answer to the second question that the enforcement of the
statute constituted such an abuse of the power, if possessed, as ren­
dered its exercise unconstitutional, the court said in part:
The want of equality is based upon two considerations. The one is the exemption
of certain short line and electric railroads. We dismiss it because it has been adversely
disposed of by many previous decisions. The second rests upon the charge that un­
lawful inequality results because the statute deals not with all, but only with the
wages of employees engaged in the movement of trains. But such employees were
those concerning whom the dispute as to wages existed, growing out of which the
threat of interruption of interstate commerce arose— a consideration which establishes
an adequate basis for the statutory classification.
* * * It certainly can not be said that the act took away from the parties, em­
ployers and employees, their private right to contract on the subject of a scale of
wages, since the power which the act exerted was only exercised because of the failure
of the parties to agree, and the resulting necessity for the lawmaking will to supply
the standard rendered necessary by such failure of the parties to exercise their pri­
vate right. Further, * * * the statute certainly affords no ground for the propo­
sition that it arbitrarily considered only one side of the dispute, to the absolute and
total disregard of the rights of the other, since it is impossible to state the modifica­
tions which the statute made of the demands without, by the very words of the state­
ment, manifesting that there was an exertion of legislative discretion and judgment
in acting upon the dispute between the parties. * * *
* * * While it is a truism to say that the duty to enforce the Constitution is
paramount and abiding, it is also true that the very highest of judicial duties is to
give effect to the legislative will, and in doing so to scrupulously abstain from per­




RATES OF WAGES.

45

mitting subjects which are exclusively within the field of legislative discretion to
influence our opinion or to control judgment.
Finally, we say that the contention that the act was void and could not be made
operative because of the unworkability of its provisions is without merit, since we
see no reason to doubt that if the standard fixed by the act were made applicable and a
candid effort followed to carry it out, the result would be without difficulty accom­
plished. * * *
* * * w e conclude that the court below erred in holding the statute was not
within the power of Congress to enact, and in restraining its enforcement, and its
decree, therefore, must be and it is reversed. * * *

Mr. Justice McKenna in a concurring opinion dealt with the mean­
ing of the act. He viewed the statute as one applying mainly to the
hours of service of employees rather than as fixing a rate of wages
of employees. He said in part:
But even if section 3 be given a broader effect it would not give character to the
whole act and make it the exertion of power to establish permanently a rate of wages.
To so consider it would, I think, be contrary to the intention of Congress, and convert
the expediency for a particular occasion and condition into the rule for all occasions
and conditions.
* * * When one enters into interstate commerce, one enters into a service in
which the public has an interest, and subjects one’s self to its behests. And this is
no limitation of liberty; it is the consequence of liberty exercised, the obligation of
his undertaking, and constrains no more than any contract constrains. The obliga­
tion of a contract is the law under which it is made and submission to regulation is
the condition which attaches to one who enters into or accepts employment in a busi­
ness in which the public has an interest.

Mr. Justice Day, in a dissenting opinion, held that the statute de­
prived the railroads of rights secured to them by the Federal Con­
stitution. He conceded that Congress could constitutionally pass a
wage law but dissented because he conceived that Congress had not
sufficiently investigated and deliberated the subject to enable it to
reach a just decision. In his opinion, it is said in part:
In fixing wages, conceding the power of Congress for this purpose, that body acts
having in mind the rights of the public, of the owners of railroads, and the employees
engaged in their service. Inherently, such legislation requires that investigation and
deliberation shall precede action. * * *
Such legislation, it seems to me, amounts to the taking of the property of one and
giving it to another, in violation of the spirit of fair play and equal rights which the
Constitution intended to secure in the due process clause to all coming within its
protection, and is a striking illustration of that method which has always been deemed
to be the plainest illustration of arbitrary action— the taking of the property of A
and giving it to B by legislative fiat.
If I am right in the conclusion that this legislation amounted to a deprivation of
property without due process of law,, no emergency and no consequence, whatever
their character, could justify the violation of constitutional rights. * * *

Mr. Justice Pitney, in his dissenting opinion, took the strictly
juristic view of the statute and sought to test its provisions in the
light of legal rights deduced from principles of liberty and property.
He concurred with the dissenting opinion of Mr. Justice Day as to




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W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

the unconstitutionality of the statute under the fifth amendment to
the Federal Constitution. In his opinion it is said in part:
I am convinced, in the first place, that the act can not be sustained as a regulation
of commerce, because it has no such object, operation, or effect. * * *
The suggestion that it was passed to prevent a threatened strike, and in this sense
to remove an obstruction from the path of commerce, while true in fact, is immaterial
in law. * * *
The simple effect of section 3 is to increase, during the period of its operation, the
rate of wages of railroad trainmen employed in interstate commerce. * * *
I am convinced that the act transgresses this provision of the amendment in two
respects; first, in that it exceeds the bounds of proper regulation, and deprives the
owners of the railroads of their fundamental rights of liberty and property; and,
secondly, in that Congress * * * arbitrarily imposed upon the carriers the
entire and enormous cost of an experimental increase in wages, without providing for
any compensation to be paid in case the investigation should demonstrate the im­
propriety of the increase.
* * * But the right to immunity from confiscation is not the only right of property
safeguarded by the fifth amendment. Rights of property include something more
than mere ownership and the privilege of receiving a limited return from its use.
The right to control, to manage, and to dispose of it, the right to put it at risk in
business, and by legitimate skill and enterprise to make gains beyond the fixed
rates of interest— the right to hire employees, to bargain freely with them about the
rate of wages, and from their labors to make lawful gains— these are among the essential
rights of property, that pertain to owners of railroads as to others. The devotion of
their property to the public use does not give to the public an interest in the property,
but only in its use.
* * * The right to contract is the right to say by what terms one will be bound.
It is of the very essence of the right that the parties may remain in disagreement if
either party is not content with any term proposed by the other. A failure to agree is
not a waiver but an exercise of the right— as much so as the making of an agreement.
The logical consequences of the doctrine now announced are sufficient to condemn
it. If Congress may fix wages of trainmen in interstate commerce during a term of
months, it may do so during a term of years, or indefinitely. If it may increase wages,
much more certainly it may reduce them. If it may establish a minimum, it may
establish a maximum. If it may impose its arbitral award upon the parties in a dis­
pute about wages, it may do the same in the event of a dispute between the railroads
and the coal-miners, the car builders, or the producers of any other commodity essen­
tial to the proper movement of traffic.

Mr. Justice McReynolds, in his dissenting opinion, held that the
statute was one fixing wages and could not be justified as a regulation
of commerce. He said in part:
Whatever else the act * * * may do, it certainly commands that during a
minimum period of seven months interstate common carriers by railroads shall pay
their employees engaged in operating trains for 8 hours7work a wage not less than the
one then established for a standard day— generally 10 hours.
But * * * it follows as of course that Congress has power to fix a maximum as
well as a minimum wage for trainmen; to require compulsory arbitration of labor
disputes which may seriously and directly jeopardize the movement of interstate
traffic; and to take measures effectively to protect the free flow of such commerce
against any combination, whether of operatives, owners, or strangers.
I can not, therefore, concur in the conclusion that it was within the power of Congress
to enact the statute.




RATES OF W AGES.

47

The importance of this decision upon the development of future
social legislation can not be measured at the present time. That its
effect will be to open the way to further experiments in adjusting the
relations of employer and employee is clear. This decision, when
taken with the decisions in the Oregon 10-hour law case and the
Oregon minimum-wage law case, all delivered by the court within a
few days of one another, gives reason for the belief that the methods
of judicial reasoning popular in the courts during the past 25 years
are doomed to disappear. The individualistic method of seeking
a legal principle as a measure and having found it, of applying it
indiscriminately to all social legislation, has reached its climax. The
decisions of the United States Supreme Court evidence a clear per­
ception of the rights of the employer, the employee, and the public.
A new basis for the legal interpretation of social legislation is being
constructed that will keep in view the mutual interests of the in­
dividual and of society.
ON PUBLIC WORK.

While the State has only recently intervened in directly regulating
the rate of wages in private employments, as master it has been
officially fixing wages in many states, and indirectly influencing all
legislation in the United States. To illustrate: As direct employer
of labor, the State may stipulate the minimum wage to be paid to
laborers just as it may decide other details of its work. It has been
maintained that when the performance of state work is undertaken
by a private contractor, the State, as party to the contract, has a
right to limit the wage below which the contractor may not go. Yet
the contractor by this limitation, it is contended, has no opportunity
of taking advantage of the possibly keen competition of the open
market, where he must hire his labor.

Legislation has been less frequent in the United States, however,
on these two phases of wage regulation, than it has been abroad.
W AG E R EG ULATION IN FOREIGN COUNTRIES.

France.— The idea of providing a minimum standard of wages had
its origin and development in France, where so many other departures
in social thought and action have been fostered. Power to contract
has been quite as free in that country as it has been in the United
States, with the advantage, if it may be so called, in favor of France.
There are constitutional limitations on legislation in the United
States not found in France. These very limitations are indicative of
the difference with which the work of legislatures is viewed in this
country.1
i F. J. G oodnow: Comparative Adm inistrative Law, N ew Y ork, 1893, 2 vols. See also report of the
U. S. Industrial Commission, W ashington, D. C. 1901, Foreign Labor Laws, vol. 16, pp, 21,22,55-62.




48

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

In the United States the legislature has generally been obliged to
provide both the principles and the details of every law; and every
law, in its details, must be measured by fixed constitutional stand­
ards. The legislative body of France lays down general principles
in the law, and leaves to the administrative authorities the appli­
cation of the law to concrete cases. In considering the actual status
of a law in France, and the continental countries generally, it is
necessary to ascertain not only the law itself, but also the decrees
that are issued to supplement the law in its administration.
As early as 1866 the heads of departments of the French Govern­
ment asserted the right and power to impose conditions in public
contracts within their control, for the protection of labor.1 The
minister of public works issued regulations to be observed by all
doing public work by contract, including the biweekly payment of
wages, a weekly day of rest, and preference for wages earned. This
policy was adopted by other departments and the protective regu­
lations were enforced without the sanction of the law. In 1899 the
ministry issued three decrees 2 dealing with the regulation of labor
institutions. Subletting of contracts was prohibited; State officials
were required and municipal officials permitted, in letting contracts,
to insist upon a weekly day of rest. Alien labor was to be employed
only in certain proportion, varying according to the section of the
country and the nature of the work. The prevailing rate of wages
and the hours of labor were to be observed. To force payment of
the prevailing rate of wages (whenever the contractor failed to pay
the current rate) the administrative official was given power to pay
the difference to the workmen and to deduct it from the amount
due the contractor.
Belgium.—In Belgium,3 a country devoted almost wholly to in­
dustry and commerce, the idea of “ fair” wages for workmen em­
ployed on public works became established in 1887. Provincial
Government officials obliged contractors on Government work to
pay the current rate of wages to their men. In 1896, after the city
of Brussels had adopted this requirement in its contracts, the sub­
ject was taken up by Parliament.4 A law was passed requiring the
prevailing rate of wages to be paid on the public work of the King­
dom. This policy prevails almost universally among the cities of
Belgium. France and Belgium are the only countries on the Con­
1 New Y ork Bureau of Labor Statistics, report, 1905, part 1, pp. 11-122. A lso summarized reprint, B u­
reau of Labor Statistics Bui. No. 8, 1906, p. 510. See also Verhaegen: L e m inimum de salarie dans les
adjudications publiques, 1893. Paul Pic: La legislation de travail en France, 1897, report made to the
Congres International de Legislation de Travail & Bruxelles. U . S. Bureau of Labor Statistics Bui. No.
25, Novem ber, 1899, pp. 835-856.
2 France.—Decrees of Aug. 10, 1899.
3 Le Foyer: Le minimum de salaire en Belgique, 1897. U . S. Bureau of Labor Statistics Bui. No. 26,
January, 1900, pp. 77-136.
4 Belgium.—Laws of 1896.




BATES OF W AGES.

49

tinent that have regulated by general statutes the employment of
labor on public works. Some countries have progressed in this
direction through the promulgation of decrees or departmental
ordinances.
England.—An exceptional state of affairs made it unnecessary,
until recently, for England to pass laws regulating the employment
of labor. Trade-unions have always been strong in England, par­
ticularly in the building trades. They have been, on the whole,
in a position to maintain wages on public contracts as well as on
private work, without legislative aid. The first step toward legis­
lative regulation was taken by the school board of London in 1889,
which insisted that those who held its contracts should pay not less
than the recognized standard rates of wages.1 This example was
followed in other industrial cities. Then by resolution, voted Feb­
ruary 13, 1891, Parliament2 began the modification of its contracts
by incorporating the “ fair wages” clause.3 It is now the rule in
England for contractors bidding for public works to include in their
bids a schedule of the wage rates which they purposed to pay to
their employees. A commission appointed by Parliament to inquire
into the results of this law made a report on July 21, 1897. Its con­
clusions were that the application of the reform was made without
much difficulty, and had given satisfaction to the administrative
officers, the contractors, and the laborers. The only hardship ex­
perienced under the law fell upon those laborers unable to earn the
minimum rate because of advancing age.
Canada.—Canada4 has gone one step beyond England. The
rate of wages to be paid to laborers on public works is included in
the specifications and must be accepted by all bidders as a minimum
rate. A “ fair wages” officer was appointed March 12, 1900, in
the department of labor to establish rates and enforce their observ­
ance. He may order deductions to be made from the money due
to contractors whenever the contractors are delinquent in carrying
out the minimum wage clause of the contract.
W AG E REGULATIO N IN TH E U N ITED ST A TES .

Legislation in the United States directly regulating the maximum
rate of wages in private employments was abandoned about 1790,
owing to the difficulty of its enforcement. One hundred years later
the same legal principle returns in a different form. The later laws
were of an indirect character, and regulated the minimum rate of
1 Sidney and Beatrice W ebb : History of Trade Unionism, London, 1894, pp. 384-85.
2 11. S. Bureau of Labor Statistics Bnl. No. 25, November, 1899, pp. 768-835.
3 Feb. 13, 1891; also Mar. 6, 1893, Mar. 10, 1909.
< Labor Gazette, Department of Labor, Canada, since 1900. U. S. Bureau of Labor Statistics Bui. No.
33, March, 1901, pp. 269-304. Ontario, 304 Geo. V , ch. 36, 1913: Current rates of wages to be paid laborers
on construction of railroads subsidized b y legislature; if no current rate then a fair and reasonable rate.
Manitoba, Feb. 5, 1907.

105598°— 18— Bull. 229-------4




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W A G E -P A Y M E N T LEG ISLATION IN

T H E U N IT E D STATES.

wages only upon public works. Naturally, with the increased
governmental functions which the State gradually had come to
exercise, came an increase in the number of its employees, until
now the State has a far greater number of laborers in its employ
than has any private employer. All students of social welfare and
all those interested in ameliorating the conditions of the laborer
wish him to maintain, if not to raise, his standard of living. They
have looked upon the Government, both State and Federal, as an
experimental laboratory for testing out the possible improvements
in his environment, his hours of service, and his wages. Legislation
on these matters has come gradually. But legislation of this char­
acter, administered by the strong arm of the State governments or
the stronger arm of the Federal Government, exerts a wide influence,
not only upon labor conditions in private employments, but also
upon the general thought on the subject of the entire country.

When the eight-hour movement began to claim attention of the
great manufacturing States of the eastern part of the country, it took
the form of a demand for an eight-hour day on public work. Further
application of the principle seemed to be denied to persons sui juris
by constitutional guaranties of freedom of contract.1 Subsequently
it was found that if the laborer was to benefit by shortening the
length of the working-day, something had to be done to prevent a
proportionate reduction in wages. Statutory provisions and munici­
pal ordinances 2 arose to regulate the rate of wages paid by the State
or its subdivisions or by those undertaking public work. These
statutes and ordinances fall naturally into those classes that provide
for a minimum or a maximum rate and those that stipulate that the
“ prevailing” or “ current” rate of wages shall be paid to laborers
engaged on public work.
Three constitutional provisions are found touching this subject.
Indiana, in its constitution adopted in 1851, declares that “ no man’s
particular services shall be demanded without just compensation.” 3
A statement so general only vaguely reflects to this day and genera­
tion the ideals and aspirations of the social movement then promi­
nently before the people. The opposition to slavery was growing
more and more pronounced and this constitutional provision crystalizes, only locally, the prevailing opinion in the North.
Wyoming has incorporated a section in its constitution of 1889
that “ the rights of labor shall have just protection through laws
calculated to secure to the laborer proper rewards for his service and
1 See Shorter hours for men as a public welfare measure, U. S. Bureau of Labor Statistics Monthly R e­
view, June, 1916, V ol. I I , N o. 6, pp. 23-29.
2 Ethelbert Stewart: Rates of wages paid under public and private contract, U. S. Bureau of Labor Sta­
tistics Bui. No. 7, November, 1896, pp. 721-727. L. D. Clark: Law of the E m ploym ent of Labor, New Y ork,
1911, sec. 20, pp. 47-50.
s Indiana Constitution, 1851, art. 1, sec. 21.




BATES OF W AGES.

51

to promote the industrial welfare of the State.”1 The origin of this
provision in the constitution was not the direct result of any great
industrial strife. It was an ideal embodied in the fundamental law
of a new country and State, the outgrowth of hard experiences gained
in the older communities of the East whence these pioneers mi­
grated. The last provision is in the constitution of New York
State.2 Its importance from a social viewpoint is so great that the
steps leading to its adoption will be considered in full in another con­
nection.3
M AX IM U M OR M INIM UM R A T E .

California.—California was the first State to legislate on this sub­
ject. A law was passed in 1872 which declared that every person
who employed laborers on public works and who took or received any
portion of the wages due them from the State or municipal corpora­
tion should be deemed guilty of a felony.4 During this same session
of the legislature a law was passed which provided among other things
that the State superintendent of printing should pay his compositors,
pressmen, and assistants no higher rate of wages than these positions
commanded in Sacramento.5 The object of the latter law was
clearly to protect the public treasury rather than the rights of labor.
But in 1876 a law was passed which committed the State to a definite
policy in regard to labor on public works. It stated “ all work done
upon the public buildings of this State must be done under the super­
vision of a superintendent or State officer or officers having charge of
the work, and all labor employed on such buildings, whether skilled
or unskilled, must be employed by the day and no work upon any of
such buildings must [sic] be done by contract.” 6 This is the only law
existing at the present time which substitutes direct employment for
contract work on public buildings, although many States have
checked the worst forms of “ sweating” by prohibiting the subletting
of contracts. The positive language of this California law is an
emphatic acknowledgment of that which the laws of other States
have admitted in a negative way, to the effect that the social justice—
* W yom ing Constitution, 1889, art. 1, sec. 22.
2 New Y ork Constitution, 1894, art. 12, sec. 1, as amended N ov. 7,1905. F . N . Thorpe: Federal and State
Constitutions, com piled b y authority of Congress, Washington, 1909, 7 vols., contains American charters,
organic laws, etc. from 1492 to 1908.
3 See p. 59.
4 California.—A cts of 1871-72, ch. 1137, pp. 951-952; A cts o f 1905, ch. 981, p. 646; and ch. 1006, p. 667.
Lucile Eaves: A history of California labor legislation, in University of California Econom ics, 1910, vol.
2, pp. 229-260.
& California.—A cts of 1872, ch. 400, p. 555; A cts of 1875-76, ch. 1078, pp. 18, 19; A cts of 1877-78, ch. 1066,
p. 10; A ct of 1891, ch. 74, pp. 66,67; A cts of 1895, ch. 188, pp. 233, 234; A cts of 1901, sec. 653g, p. 480. De­
clared unconstitutional b y implication in Lewis v. Dunne, 134 Cal. 291-300, Oct. 10, 1901. Reenacted,
A cts of 1905, ch. 1005, pp. 666, 667; A cts of 1915, ch. 666, pp. 1306-1310, and ch. 671, pp. 1318,1319.
e California.—A cts of 1875-76, ch. 325, p. 427; amended 1891, ch. 242, p. 457; 1895, ch. 191, p. 237; 1905,
ch. 352, p. 416; 1907, ch. 185, p. 225.




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W A G E -P A Y M E N T LEG ISLATION I N T H E U N IT E D STATES.

the economy—of letting out public contracts to the lowest bidder is
open to very grave question.
In 1887 four sections were added to the law relating to the hours of
labor on street railways.1 These sections provide, “ any and every
person laboring over twelve hours in one day as driver or conductor
or gripman on any street railroad shall receive from his employer 3Q
cents for each hour’s labor over twelve hours in each d a y/7 and “ the
court shall exclude all evidence of agreement to labor over twelve
hours in one day for a less price than 30 cents, and the court shall
exclude any receipt of payment for hours of labor over twelve hours
in one day, unless it be established that at least 30 cents for each hour
of labor over twelve hours in one day has been actually paid, and a
partial payment shall not be deemed or considered a payment in full.”
The constitutionality of this law has never been determined by the
courts. With the possible exception of the Virginia statute referred
to above, it is the nearest approach to legislating on the rate of wages
to be paid males in private employments to be found in this country.
Whether the courts would hold the public safety closely enough
involved to sustain the law seems doubtful.
By an act of 1897 the minimum rate of $2 per day was fixed for
labor on all public work performed under the direction, control or
by the authority of any officer of the State acting in his official ca­
pacity, or by the authority of any municipal corporation within the
State.2 A stipulation to that effect must be made a part of all con­
tracts to which the State, or any municipal corporation within the
State, is a party. The constitutionality of this act has never been
tried.
N o t e .—The legislature ratified an amendment to the city charter of San Francisco
which fixes $3 per day with pay and a half for overtime as the minimum wage of em­
ployees on street railways. Acts of 1911, ch. 25, p. 1666.

Nebraska.—Nebraska in 1887 gave power to the board of public
works in cities of the metropolitan class to fix the wages of employees
under their supervision at the “ current wages,” for that class of
labor.3 In 1903 the legislature changed the law 4 to adopt the mini­
mum rate principle. This act did not apply to farm or agricultural
labor. A similar law, enacted in 1870, made no exception to labor
under contract or agreement, as was done in the earlier law, but it
permitted overtime work for extra compensation. A penalty was
imposed for the violation of its provisions by any public officers, con­
tractors, or agents of the State, and the law of 1867 was specifically
repealed. It provided that where work is performed (in cities of
the first class) upon the streets, sewers, boulevards, or in parks, oi
1 California.—A cts of 1887, ch. 85, pp. 101, 102.
2 California.—Acts of 1897, ch. 88, p. 90.
3 Nebraska.—Compiled Statutes of 1881, 7th ed., 1895, part 1, ch. 12a, sec. 838.
4 Nebraska.—Acts of 1903, ch. 17, p. 184.




RATES OF W AGES.

53

other similar work, or where it is performed by virtue of contract for
the city, it shall be done by union labor and be paid for at the rate
of $2 per day. When skilled labor is employed by the city the cur­
rent scale of union labor shall be paid. In practice the minimum
was placed so high, however, that the law was an abandonment of
the “ current rate” for a higher rate.
An act of 1907 adopted the maximum principle. It declared that
the current rate of wages shall be paid for labor on public roads, but
when the roads are obstructed by snowdrifts, the officer in charge of
road work “ shall pay for the shoveling out of snowdrifts not to exceed
20 cents per hour for one man and not to exceed 40 cents per hour
for a man with team and scraper.” 1 These statutes either have not
been enforced or they have been accepted as constitutional, for the
question of their validity has not been brought before the supreme
court of the State.
New York.—New York was one of the first States to recognize the
eight-hour day by statute, by enacting a law in 1867 which made
eight hours i1a legal day’s work in all cases of labor and service by the
day, where there is no contract or agreement to the contrary.” 2 An
amendatory act of 1870 imposed a penalty for violation of the law by
public officers or contractors for public work, but permitted overtime
work for extra compensation.3 In effect these laws were merely
wordy declarations of good will on the part of the legislature; no re­
sults of importance came from them. A departure was made in 1889
from legislating for limited hours of labor and overtime compensa­
tion to direct legislation upon the rate of wages. Wages of day lab­
orers employed by the State or officers under its authority were to be
not less than $2 per day, and for all employees other than day laborers
the rate was not to be less than 25 cents an hour.4 There was no
penalty clause in the act and it was repealed by the succeeding
legislature.5
In the interim an action for extra pay for overtime work was insti­
tuted before the board of claims based upon rights acquired under
this law. Appeal was taken from the award of the board of claims
to the court of appeals.6 The points in the case may be summarized
as follows: A laborer, Clark, was employed by the superintendent of
public works as a lock tender on a canal during the season of naviga­
tion of 1889. No express agreement was made for compensation,
but Clark was paid $20 monthly. At no time during his employment
1 N ebraska—Acts of 1907, ch. 112, p. 388.
Y o r k —Acts of 1867, vol. 2, ch. 856, p. 2138.
3 New Y ork.—Acts of 1870, vol. 1, ch\ 385, p. 919.
4 New Y ork.—Acts of 1889, ch. 380, p. 508.
5 N ew Y ork.—Acts of 1890, ch. 218, p. 426.
6 Clark v. State of N ew Y ork, 142 N . Y . 101, A pr. 10, 1894. See also Larkin v. Village of Brockport, 34
N . Y . Supp. 551-556, June 21, 1895; Gilligan v. T ow n of Waterford, 36 N . Y . Supp. 88-92, Dec. 3, 1895;
Walsh v. City of A lbany, 52 N . Y . Supp. 936-38, July 6, 1898.

2 N ew




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W A G E -P A Y M E N T LEGISLATIO N IN

T H E U N IT E D STATES.

did he make any claim that he was entitled to more; but he executed
no release. The court, following the decisions of the United States
Supreme Court 1 held that Clark was a laborer within the meaning of
the statute and that in the absence of a contract, expressed or im­
plied, at the beginning of his employment fixing his compensation, he
was entitled to recover the difference between the sum fixed by the
statute and that paid to him from and after the time it went into
effect. Judge O’Brien writing for the unanimous court, said:
There is no express or implied restriction to be found in the constitution upon the
power of the legislature to fix and declare the rates of compensation to be paid for labor
or services performed upon the public works of the State. * * * We think that a
general law regulating the compensation of laborers employed by the State, or by
officers under its authority, which disturbs no vested right or contract, was within the
power of the legislature to enact, whatever may be said as to its wisdom or policy.2

This unsuccessful venture into real wage-rate legislation was fol­
lowed, four years later, by a “ prevailing rate” act.
Indiana.—The next State to regulate the wage rate on public work
was Indiana. The legislature provided in 1899 that each laborer on
the public roads was to work 10 hours a day, and the rate of wages
was not to exceed $1.25 per day for each man, and $2.50 per day for
each mule or horse team and wagon and driver.3 At the same session
a law was passed providing that all unskilled labor employed on any
public work of the State, counties, cities, and towns should receive
not less than 15 cents per hour, In 1901 a new law, repealing all laws
in conflict with it, fixed the compensation for unskilled labor on pub­
lic work of the State or subdivisions of the State at not less than 20
cents per hour.4
The constitutionality of this statue was questioned in 1903. A
private corporation had a contract with the city of Richmond to
construct an electric light plant. Street was employed as an un­
skilled laborer. He worked a total of 540 hours and under the law
was entitled to receive 20 cents an hour for his labor. The company
refused to pay him that much, on the ground that the statute was
unconstitutional, and paid him 15 cents per hour. The court de­
clared the act unconstitutional, partly on the ground that through
its operation a citizen might be deprived of his property without due
process of law, partly on the ground that it was an interference with
the liberty of contracts by counties, cities, and towns, and partly
upon the ground that it was class legislation. The opinion 5 stated:
1 U. S. v. Martin, 94 IT. S. 400-404, Oct., 1876.
2 Clark v. State of N ew Y ork, 142 N . Y . 105. N ew Y ork Acts of 1913, vol. 2, ch. 467, pp. 980-981, provides
that canal employees are to receive $2 per d a y.
3 Indiana—Acts of 1899, ch. 226, p. 515.
4 Indiana.—A cts of 1901, ch. 122, p. 282.
e Street v. Varney Electrical Supply Co., 160 Ind. 338-348, Apr. 1, 1903. See also Bell v. Tow n of Sullivan,
158 Ind. 199-202, Mar. 14, 1902.




RATES OF W AGES.

55

The power to confiscate the property of the citizens and taxpayers of a county, city,
or town by forcing them to pay for any commodity, whether it be merchandise or labor,
an arbitrary price, in excess of the market value, is not one of the powers of the legis­
lature over municipal corporations, nor the legitimate use of such corporations as
agencies of the State. * * * An act fixing the price of unskilled labor on all
public works at not less than 20 cents an hour is a legislative interference with the
liberty of contract by counties, cities, and towns, which finds no sanction or authority
in the doctrine that counties, cities, and towns are municipal and political subdi­
visions of the State.
If the legislature has the right to fix the minimum rate of wages to be paid for com­
mon labor, then it has the power to fix the maximum rate. And if it can regulate the
price of labor, it may also regulate the prices of flour, fuel, merchandise, and land.

Pennsylvania.—The Supreme Court of Pennsylvania in 1895 was
called upon to construe a provision in the specifications of a municipal
contract for waterworks, requiring the contractor to employ no one
not a citizen of the United States, and to pay no man a less sum for
his labor than $1.50 per day.1 An act of 1889 required all such work
to be let to the lowest responsible bidder. Such a provision as was
incorporated in a municipal contract the court held to be inconsistent
with the statutes of the State.
Ohio.—Two years later a similar case 2 arose in Ohio in which a
provision, contained in an ordinance of the city of Cleveland, was
assailed. The ordinance stipulated that all common laborers en­
gaged upon public works or improvements should receive not less
than $1.50 per day and that the hours of labor should not exceed
eight hours per day. The court declared the ordinance to be in
conflict not only with the Ohio law requiring that none but the
lowest and best responsible bid should be accepted, but in conflict
with the bill of rights of the Ohio constitution and the fourteenth
amendment to the United States Constitution. The court quoted
from Cooley with approval and said:
The doctrine is generally recognized and enforced, that every person living under
the protection of the general Government has the right to follow such occupation
or industrial pursuit as to him seems fit, provided it is not injurious to the morals,
health, safety, or welfare of the public; and such persons generally are entitled to
the equal protection of the laws in respect to person and property; and, as incident
thereto, the right to employ labor, make contracts in regard thereto, upon such terms
as may be agreed upon by the parties, and to enforce such contracts when made.3

Washington.—The city of Spokane undertook by municipal
ordinance to fix the rates of wages for public improvements at an
1 Frame v. Felix, 167 Pa. 47-55, Mar. 18, 1895.
P. 183-190, June 22,1897.
3 T. M. Cooley: Constitutional Lim itations, Boston, 1896 (6th ed.), p. 187. See also City of Cleveland v.
Clements Brothers Construction Co., 67 O. S. 197, January term , 1902, in which the Ohio Supreme Court
held an act lim iting the hours of daily service of laborers em ployed on public works was unconstitutional
and void as violating the right both of liberty and property. The City Council of Cleveland, Ohio, con­
trolled b y a “ hom e ru le” charter, passed an ordinance on A ug. 30,1915, effective Oct. 9,1915, providing for
standard wages with a m inimum wage of $2.50 per day of 8 hours on work done b y contractors for the city.
The ordinance was placed before the voters on N ov. 2,1915, and passed b y a vote of 61,084 for and 19,375
against.

2 Bramley v. N orton, 5 Ohio N.




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amount considerably in excess of current rates for similar work.
Two property owners objecting to the cost of the improvements
for which they were liable brought suit against the city, and the
court (first division) held 1 that they were entitled to a reduction
of the amount to correspond to the current rates. The trial court,
the superior court of Spokane County, had given judgment in favor
of the city. The case then went before the full court on a rehearing
when the decision of the first division was reversed. In delivering
the opinion 2 Judge Ellis said in part:
In view of these conditions can anyone say that a wage of $2.75 a day is, as a matter
of law, more than a reasonable living wage? The unit as applied to the problem
of living is the family, not the individual, and $2.75, or even $3 a day, can hardly
be complacently pronounced as an unreasonable sum for supporting such a unit
* * *
To hold that the payment of any sum which we can not say is above a
reasonable living wage, though it may be above the prevailing rate of wages, is a
mere gratuity, would be to sacrifice the fact to a mere term. Such a holding would
be an indictment of our civilization.

Iowa.—The Iowa Legislature passed a law 3in 1913 which provided
for a minimum wage for teachers and made it a misdemeanor for
school officers to contract for or pay a less wage than that fixed
by the law. The State supreme court 4 held the law constitutional
on the usual grounds.
PREVAILING OR CURRENT R ATE.

Kansas.—In the eight-hour law applying to public works passed
in 1891 Kansas provided “ that not less than the current rate per
1 Malette v. City of Spokane, 68 W ash. 578-589, May 31, 1912. See also Gerlach v. City of Spokane, 68
W ash. 589-599, May 31, 1912.
In Jahn Contracting Co. v. City of Spokane, 74 W ash. 298, July 10,1913. Under an act of the legislature
enabling cities to construct street railway systems, the charter of the city of Seattle, relating to the accept­
ance of bids for public improvem ents, was amended to require a m inimum wage of $2.75 per day on local
im provem ent work. It was held that a street railway system to be paid for b y city bonds was not a “ local
im provem ent w ork ” so that a contract therefor was not controlled b y the amendment.
2 Malette v. City of Spokane, 77 W ash. 205-246, Dec. 31,1913.
3 Iowa.—Acts of 1913, ch. 249, p. 267.
Similar legislation will be found elsewhere as follows:
United States limits wages to printers in Government Printing Office, A cts of 1877, vol. 19, ch. 58, p. 231;
1883, vol. 22, ch. 23, p. 402; 1895, vol. 28, ch. 23, p. 607; 1900, vol. 31, eh. 791, p. 643; 1909, vol. 35, ch. 299,
p. 1024; 1912, vol 37, ch. 355, p. 482.
Acts of the Philippine Commission, 1902, p. 32, A ct No. 430; 1903, p p. 402-404, A ct N o. 650, fixes rates
for bureau of printing.
Hawaii Acts of 1907, ch. 98, p. 170, fixes m inimum of $1.25 per day for labor engaged to w ork for the
Territory of Hawaii or its subdivisions. A cts of 1915, ch. 9, pp. 9,10.
Nevada.—Acts of 1907, ch. 202, p. 428; 1911, ch. 184, p. 368.
Maryland.—Acts of 1910, ch. 94, pp. 642-644. This act amends the Acts of 1908, ch. 85, pp. 613-614, b y
adding a provision fixing the minimum rate of wages in Baltimore on public work at $2 per day in place
of the current rate. Acts of 1914, ch. 98, pp. 122,123, applies to the city of Cumberland; 1916, ch. 134, pp.
219,220, applies to laborers em ployed b y Allegany County.
Massachusetts A cts of 1911, ch. 541, p. 561, amended 1913, ch. 685, p. 628, provides that rates of wages
laborers on certain public works shall not be less than $2.50 per day. Acts of 1912, ch. 683, p. 754, provides
for same scale of wages to be paid wom en as paid to men employees in State bathhouses. Acts of 1914,
ch. 458, p. 405, fixes the wages of male laborers em ployed b y the prison commissioner of the State at not
less than $2.50 per day.
« B opp v. Clark, 165 Iowa, 697-703, May 12,1914.




RATES OF W AGES.

57

diem wages in the locality where the work is performed shall be
paid to laborers, workmen, mechanics, and other persons so employed
by or on behalf of the State of Kansas, or any county, city, town­
ship or other municipality of said State; and laborers, workmen,
mechanics, and other persons employed by contractors or subcon­
tractors in the execution of any contract or contracts within the
State of Kansas, or within any county, city, township, or other
municipality thereof, shall be deemed to be employed by or on behalf
of the State of Kansas, or of such county, city, township, or other
municipality thereof.” 1
The succeeding years witnessed a series of cases construing either
the “ eight-hour” or “ current rate” provisions. It has been held
by the court that the law did not apply to the employees of the State
penitentiaries;2 that it did not apply to persons taking contracts, but
only to laborers working by the day;3 that it was superior to a city
ordinance;4 that the act was constitutional;5 that it did not furnish
ground for a suit for pay for overtime labor rendered under an exe­
cuted contract;6 and, finally, it was emphatically reaffirmed that a
school district is a municipality within the meaning of the law.7
An action was commenced charging W. W. Atkin with having con­
tracted with Kansas City to pave a public street. He hired George
Reese to lay the pavement. There was no necessity for him to labor
more than eight hours per day for the protection of property or
human life. Atkin was charged with having unlawfully hired Reese
on the basis of 10 hours as constituting a day’s work, for which he
was to pay $1.50, the current rate. This was in violation of the laws
of 1891.
Atkin claimed that the statute violated the fourteenth amendment,
because it deprived him of his liberty and property, without due
process of law, and denied to him the equal protection of the laws.
He was sentenced to pay a fine. The case was then taken to the
Supreme Court of Kansas, which sustained the validity of the statute.8
The opinion of the court was concurred in by the whole bench.
The case In re Dalton9 was approved and followed in reaching the
result. The court declared:
The city exercised delegated authority and acted as an agent for the State. The
latter did not, by authorizing the mayor and council to lay the pavement, surrender
1 Kansas.—Acts of 1891, ch. 114, pp. 192, 193.
2 State v. Martindale, 47 Kans. 147-151, Oct. 10,1891.
3 Billingsley v. Board of Commissioners, 5 Kans. A p p . 435-437, June 16, 1897.
4 In re A shby, 60 Kans. 101-107, Dec. 10,1898.
6 In re Dalton, 61 Kans. 257-265, D ec. 9, 1899.
« Beard v. Board of Commissioners of Sedgwick County, 63 Kans. 348-350, July 6,1901.
7 State v. James W ilson, 65 Kans. 237-240, June 7, 1902.
8 Kansas v. A tkin, 64 Kans. 174-180, Jan. 11, 1902.
9 61 Kans. 257-265 (1899). In this case it was decided that ch. 114, of the Laws of 1891, was a direction
o f the State to its agents and was constitutional and valid.




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W A G E -P A Y M E N T LEGISLATIO N IN T H E U N IT E D STATES.

its paramount authority over the control of the city streets. If the State had been
doing this work it might at its pleasure have given the current rate of per diem wages
in the city of eight hours’ work performed by any of its servants. This is the prin­
ciple of the Dalton case. * * * There can be no distinguishing difference between
the acts of the contractor in the employ of the county passed upon in the case of In
re Dalton, supra, and those of the appellant here. Both were proceeding under con­
tracts made with them by the agents of the State, and the principal had power to
direct that eight hours should constitute a day’s work for all persons laboring in its
behalf.

From this decision Atkin appealed on error to the United States
Supreme Court, which affirmed the judgment of the Supreme Court
of Kansas on November 30, 1903, through Mr. Justice Harlan.1
Mr. Chief Justice Fuller, and Justices Brewer and Peckham dissented.
*
* * Thg W
Ork to which the complaint refers is that performed on behalf of a
municipal corporation, not private work for private parties. Whether a similar stat­
ute, applied to laborers or employees in purely private work, would be constitutional,
s a question of Very large import, which we have no occasion now to determine or
ieven to consider.
“ If a statute,” counsel observes, “ such as the one under consideration, is justi­
fiable, should it not apply to all persons and to all vocations whatsoever? * * *
Why should the law allow a contractor to agree with a laborer to shovel dirt for 10
hours a day in performance of a private contract, and make exactly the same act
under similar conditions a misdemeanor when done in the performance of a contract
for the construction of a public improvement? Why is the liberty with reference to
contracting restricted in the one case and not in the other? These questions—indeed
the entire argument of defendants’ counsel— seem to attach too little consequence
to the relation existing between a State and its municipal corporations. Such cor­
porations are the creatures, mere political subdivisions, of the State for the purpose
of exercising a part of its powers. They may exert only such powers as are expressly
granted to them, or such as may be necessarily implied from those granted. What
they lawfully do of a public character is done under the sanction of the State. They
are, in every essential sense, only auxiliaries of the State for the purposes of local
government. They may be created, or having been created, their powers may be
restricted or enlarged, or altogether withdrawn at the will of the legislature; the
authority of the legislature, when restricting or withdrawing such powers, being
subject only to the fundamental condition that the collective and individual rights
of the people of the municipality shall not thereby be destroyed.”
It may be that the State, in enacting the statute, intended to give its sanction to
the view held by many, that, all things considered, the general welfare of employees,
mechanics and workmen, upon whom rest a portion of the burdens of government,
will be subserved if labor performed for eight continuous hours was taken to be a
full day’s work; that the restriction of a day’s work to that number of hours would
promote morality, improve the physical and intellectual condition of laborers and
workmen and enable them the better to discharge their duties appertaining to citi­
zenship. * * *. It can not be affirmed of the statute of Kansas that it is plainly
inconsistent with that instrument (the United States Constitution); indeeed, its
constitutionality is beyond all question. Equally without any foundation upon
which to rest is the proposition that the Kansas statute denied to the defendant or to
his employee the equal protection of the laws. The rule of conduct prescribed by
it applies alike to all who contract to do work on behalf either of the State or of its
municipal subdivisions ^nd alike to all employed to perform labor on such work.
i A tkin v. Kansas, 191 U . S. 207-224 ; 24 Sup. Ct. 124-128, N ov. 30, 1903.




RATES OF WAGES.

59

* * * We rest our decision upon the broad ground that the work being of a public
character, absolutely under the control of the State and its municipal agents acting
by its authority, it is for the State to prescribe the conditions under which it will
permit work of that kind to be done. Its action touching such a matter is final so
long as it does not, by its regulationsrinfringe the personal rights of others;1 and that
has not been done.

New York.—After a brief experience with the maximum-rate law,
New York again emphasized its determination to maintain eight
hours as a legal day’s work in 1894, by amending the law of 1870.2
This amendatory a c t3 permitted none but citizens of the United
States to be employed on public works, and required the payment
of the “ prevailing rate of wages.” The object sought was to limit
the importation of labor willing to work any number of hours with
the inevitable result of lowering the American laborer’s standard of
living. It was not until 1899, upon the recommendation of Governor
Roosevelt, that practical effect was given to the law by prohibiting
overtime on public work and making eight hours an actual maximum
to be exceeded only in case of “ extraordinary emergency.” The real
force of the law began to be felt and the contractors were obliged
either to attack its constitutionality or abide by its provisions. They
decided to attack it.
A petition was brought up before the New York court of appeals
in 1901 for a mandamus to compel the comptroller of the city of
New York to make payment to a contractor who had failed to pay
the prevailing rate of wages in the locality.4 The petition was granted
on the ground that the statute was unconstitutional. First, because
in its operation it required the expenditure of the money of the city,
or that of the local property owner for other than cit;y purposes.
This was reasoning somewhat similar to that adopted in Indiana.
Second, it was argued the statute denied to the city and contractor
the right to agree with their employees upon the measure of their
1 See also Ellis v. U nited States, 206 U. S., 246-267, 27 Sup. Ct. 600-606, May 13, 1907. The court held
the penal clause of the eight-hour law of 1892 constitutional on the authority of the A tkin case, reasoning
that Congress had the same right as a State legislature to enact legislation of this kind.
2 N ew Y ork.—A cts of 1870, vol. 1, ch. 385, p p. 919, 920; 1894, vol. 2, ch. 622, p. 1569; 1896, vol. 2, ch.
506, p. 606.
3 N ew Y ork.—Acts of 1897, vol. 1, ch. 415, pp. 462, 463; 1899, ch. 567, p p . 1172, 1173, repealed 1894, vol. 2,
ch. 622, p . 1569. It was held m McCann v. N ew Y ork, 166 N . Y . 587, F eb. 26,1901, that the A ct of 1899 was
to be construed as not impairing rights acquired under the A ct of 1894, and consequently a person who had
perform ed labor for a city while the law of 1894 was in force and received therefor less than the prevailing
wages was entitled to sue therefor after the passage of the repealing act. Later New Y ork acts on the same
subject are: N ew Y ork A cts of 1900, vol. 1, ch. 298, pp. 638, 639;.1906, vol. 2, ch. 506, p. 1395; 1913, vol.
2, ch. 494, p p. 1177,1178.
See also McMahon v. N ew Y ork, 47 N . Y . Supp. 1018-1020, N ov. 19, 1897. McCunney v. N ew Y ork
58 N . Y . Supp. 138-140, May 19, 1899. People ex rel. U soy v. W aring, 64 N . Y . Supp. 865-868, May
22, 1900. M cA voy v. N ew Y ork, 52 N . Y . A p p . D iv . 485-491, June term, 1900. Burns v. F ox, 90 N . Y .
Supp. 254-257, N ov. 15, 1904. People v. Grout, 179 N . Y . 417-438, N ov. 29, 1904. Farrell v. Board of
Education, 98 N . Y . Supp. 1046-1048, May 9, 1906. People ex rel. Hansauer-Jones Printing Co. v.
Zimmerman, 109 N . Y . Supp. 396-402, Mar. 13, 1908.
4 People ex rel. Rodgers v. Coler, 166 N . Y . 1-44, Feb. 26, 1901. See also Meyers v. Penn. Steel Co., 77,
N . Y . A pp. 307-309, December, 1902. People e x rel. N orth v. Featherstonhaugh, 172 N. Y . 112-128,
Oct. 7, 1902.




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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

compensation. Finally, because it virtually confiscated all property
rights of the contractor under his contract, for breach of his engagement
to obey the statute. The court1 declared, through Judge O’Brien:
The legislature does not possess unrestricted power to bind a city hand and foot
with respect to all its local business affairs. It can not fix by statute the price which
it must pay for material or property that it may need, or the compensation that it
must pay for labor or other services that it may be obliged to employ, at least when
such regulations increase the cost beyond that which it would be obliged to pay in
the ordinary course of business. If it could do all these things, it could virtually
dispose of all the revenues of the city for such purposes as it thought best, and local
self-government would be nothing but a sham and a delusion. * * * The power to
deprive master and servant of the right to agree upon the rate of wages which the latter
was to receive is one of the things which can be regarded as impliedly prohibited
by the fundamental law upon consideration of its whole scope and purpose as well
as the restrictions and guarantees expressed.
If the legislature has power to deprive cities and their contractors of the right to
agree with their workmen upon rates of compensation, why has it not the same power
with respect to all private persons and all private corporations?

He quoted approvingly from the opinion in the case in re Jacobs,2
and concluded:
Such legislation may invade one class of rights to-day and another to-morrow, and if
it can be sanctioned under the constitution, while far removed in time, we will not
be far away in practical statesmanship from those ages when governmental prefects
supervised the building of houses, the rearing of cattle, the sowing of seed, and the
reaping of grain, and governmental ordinances regulated the movements and labor
of artisans, the rate of wages, the price of food, the diet and clothing of the people,
and a large range of other affairs long since in all civilized lands regarded as outside
of governmental functions.

He also cites with approval the Ohio case, State ex rel. Bramley v.
Norton, as involving the very question at bar.3
Chief Justice Parker, in a strong dissenting opinion, says:
The reasoning by which the decision about to be made is sought to be supported
fails to persuade me that it is other than a judicial encroachment upon legislative
prerogative; for, it is that and nothing less. If the statute does not offend against
either the Federal or the State Constitution * * *. The legislature * * * is
vested with the power to direct the conduct of the business operations of the State,
but this statute has not only declared it to be the policy of the State as a proprietor
to pay the prevailing rate of wages, but has enjoined upon its several agents and
agencies the duty of executing this policy. An attack upon this statute, therefore,
assails the right of the State as a proprietor to pay such wages as it chooses to those
who either work for it directly, or upon any work of construction in which it may
be engaged.

Judge Parker further said, in speaking of the infringement of the
right or liberty to contract on the part of the contractor under the
statute in question:
But it (the contractor’s liberty) is interfered with only because he assents to the
proprietor’s wishes and contracts that it shall be so, and hence his liberty is not in­
1 People e x rel. Rodgers v. Coler, 166 N. Y . 1-44, Feb. 26, 1901.
2 In re Jacobs, 98 N . Y . 98, Jan. 20, 1885.
3 State ex rel. Bramley v. Norton, 5 Ohio, N. P. R . 183.




RATES OE WAGES.

61

terfered with at all within the meaning of the Constitution; for he has solemnly cov­
enanted in his agreement that he shall not be at liberty to do anything in the course
of the performance of the contract that shall be contrary to the wishes of the proprietor,
as expressed in the written contract.

Justice Haight, dissenting, approached still nearer to the social
point of view. He said:
If the wages provided for by the statute to be paid laborers has reference only to
those who are in the prime of life, and in the full possession of their physical powers,
then its effect may be to exclude from employment and the means of earning a liveli­
hood, laborers who have passed the prime of life, and have suffered a partial impair­
ment of their physical powers, and thus create a class distinction which is not only
objectionable but vicious. I, however, do not think that the statute should receive
such a construction. * * * It will be observed that the statute expressly relates
to “ all classes” of laborers. This includes the old and the young, as well as the
middle aged and those in the full possession of their powers. * * * It does not
provide that each laborer shall be paid the “ prevailing rate.” * * * In other
words, it is the market rate or that which the services are fairly and reasonably worth.
Each laborer must, therefore, be paid what his services are worth in the market in
that locality. * * * Under this construction of the statute, there is nothing in
its provisions that is objectionable or harmful. It merely gives to the laborer that
which he earns and nothing more. It is only what justice and good morals demand.

In March of the same year, 1901, the court handed down a decision
in the case of Treat v. Coler.1 Treat, a municipal contractor, per­
formed his contract for constructing a sewer except that he had not
used stonework dressed, or carved, in the State of New York, as
required by the labor law and his contract. This case was decided
on the authority of Rodgers v. Coler. The statute was also held to
be a violation of the commerce clause of the Federal Constitution.
The opinion of the court 1was again delivered through Judge O’Brien.
Chief Justice Parker, dissenting, declared:
*
* * Whether the statute was void or not, the municipal authorities had the
power to insist, as they did, upon the conditions in controversy, and the contractor
had the right to reject or accept the contract on those terms. He chose to accept,
and he should now be held to this agreement as the other party to it demands. * * *
Section 14 of the Labor Law is not in contravention of the Federal Constitution. But
the liberty of contract with which the citizen is endowed is no greater than that with
which the State is invested when it enters on a scheme of construction for the public
good. If, as respects freedom of contract, all the people of the State acting together
are not greater than one of the units—a citizen— they are at least as great and may be
as capricious as it is possible for an individual to be, touching the style of architecture,
quality of materials, character of workmen, and rate of compensation that they will
offer for work to be performed.

Although the right and power of the State was conceded to fix
salaries and wages of persons employed by the municipality itself,
and to regulate the conditions of employment on public work of the
State, these adverse decisions, holding that the principle of “ home
1 People ex rel. Treat v. Coler, 166 N . Y . 144-53, Mar. 8,1901.
Supp. 189-195, February, 1902.




See also Knowles v. New Y ork, 75 N. Y .

62

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

rule” required that municipalities should be free to decide the terms
of their own contracts without the interference of the State govern­
ment, were causes of important constitutional changes. In the
session of 1902, representatives of the laboring men proposed to
extend the authority of the State legislature over the sphere of
municipal contract work by amending the State constitution. An
amendment was passed by the legislature of 1902, and again in 1903,
and it was approved by popular vote.
Two years elapsed before New York courts were again called upon
to deal with a case of similar character.1 The appellant was indicted
for having required more than eight hours labor for a day’s work
from certain employees engaged in building a highway. The majority%
of the court condemned the statute as unconstitutional and void.
The court held, in substance, that when the State itself prosecutes
a work, it has the right to dictate every detail of the service required
in its performance, prescribe the wages of the workmen, their hours
of labor, and the particular individuals who may be employed; but
denies that such right exists where it has let out the performance of
the work to a contractor.
This case was decided before (Atkin v. Kansas), and the New
York court supports the decisions, which declare that in matters of
local concern a municipality acts, not in a governmental but rather
in a corporate capacity, in which it is as free from State control as
a private corporation.2 The Supreme Court of the United States
held, it will be recalled, in the Atkin v. Kansas case, that since
municipalities are mere political subdivisions of the State, agents to
exercise a part of its powers, the State may control all municipal
contracts, whether relating to internal affairs or not.
The next case was that of Ryan v. City of New York, decided on
January 29, 1904.3 Ryan, a laborer, employed by the city on street
work, brought suit to recover about $600, alleging that the city was
indebted to him in that sum for arrears of pay at the rate of 50 cents
a day for each workday that he was employed during a period of
six years. He declared that to comply with the prevailing-rate-ofwages law of 1894, the city should have paid him $3.50 instead of $3
a day. He lost his case in the trial court and also in the first appel­
late division of the supreme court.
When the case reached the court of appeals, Chief Justice Parker,
speaking for the majority, said:
The decision in that case (Rodgers, 166 N. Y .) is that so much of the statute as in
effect requires a contractor for municipal work to agree that he will pay his workmen
1 People v. Orange County R oad Construction Co., 175 N. Y . 84-94, Apr. 28, 1903; D ow ney v. Bender,
57 N. Y . A pp. 310-315, January, 1901; People v. Metz, 193 N. Y . 148, Oct. 13,1908. See also Bohnen v. Metz,
193 N . Y . 676, Dec. 16, 1908.
2 J. F. Dillon: Municipal Corporations, Boston, 1911, 5th ed., vol. 1, sec. 66, p. 121. A . M. Eaton: R ight
to local self-government, in Harvard Law Review, vol. 13, pp. 441-454, February, 1900. See cases cited.
» R yan v. City of N ew Y ork, 177 N. Y . 271-292, Jan. 29,1904; Byrnes v. City of New Y ork, 150 N. Y . A pp.
338, Apr. 12, 1912.




RATES OF WAGES.

63

not less than the prevailing rate of wages, and makes the contract void if he fails to
pay at such rate, at least, is unconstitutional. * * * It is true that in one of the
prevailing opinions argument sufficiently broad to cover this case is made, but it is
not necessary for the decision, and is obiter, and, therefore, need not be followed.
Has the legislature * * * power to provide that work done for it or its several
subdivisions shall be paid for at such rate as individuals and corporations in the same
locality pay? That question was before this court some years ago, in so far as it affects
the right of the legislature to fix the rate of wages of laborers upon the works of the
State. (Clark v. State of New York, 142 N. Y . 101.)
The principle of that decision controls this one. There the legislature undertakes
to fix arbitrarily the sum to be paid to every employee of the State. Here the legis­
lature undertakes to provide for the payment of not less than the prevailing rate of
wages, not only to the direct employees of the State, but also to its indirect employees
working in its several subdivisions—the cities, counties, towns, and villages. In the
administration of the affairs of those subdivisions, as well as in those of the State at
large, the legislature is unrestrained unless by express provisions of the Constitution.

The reasoning of Atkin v. Kansas is expressly approved. The
court professed to distinguish between its two decisions (People v.
Orange, etc., Co. and Ryan v. New York) on the ground that one
statute restricts the liberty of the city and the other the liberty of
persons contracting with the city. But in providing that contrac­
tors may exact only an eight-hour day, the State was merely laying
down one provision of contracts with cities which contractors may
make or not as they please. It is on this reasoning 'that the Kansas
statute was sustained. The New York court of appeals therefore
is committed to the questionable proposition that the State may pre­
scribe the term of the city’s contract with its contractor, but not the
terms of the contractor’s contract with the city.
It is worthy of more than passing note that in every case that
arose from the action of the State legislature in imposing certain con­
ditions to be incorporated in the contracts of its agents, the muni­
cipalities, it was the contractor and not the city who attacked the
constitutionality of the statutes. The subdivisions of the State had
accepted and obeyed the mandate of their superior. The result was
that the contractors found city contracts less inviting than formerly.
The efforts of the contractors to remove the restrictions upon the
patriotic plea of jealously guarding the “ home-rule” rights of the
municipality is far from convincing. If the legislature by enacting
such laws invaded the rights of municipalities, obviously the officials
of those municipalities and not interested private contractors were
the proper persons to assail the power of the legislature.1
i N ew Y ork.—Acts of 1900, vol. 1, ch. 298, pp. 638,639; Acts of 1906, vol. 2, ch. 506, pp. 1394-1396; reenacted,
with minor exceptions as sec. 3 of the labor law; amended Acts of 1909, vol. 1, ch. 292, pp. 530, 531; 1913,
vol. 2, ch. 467, pp. 980, 981; ch. 494, pp. 1177, 1178; 1916, ch. 152, p. 368.
In E wen v. Thompson-Starrett Co., 208 N . Y . 245-252, A pr. 22,1913, a contractor for the construction of a
municipal building in the Borough of Manhattan, City of N ew York, sublet the granite work to a Maine cor­
poration. The work on the granite was done in the State of Maine and the workmen were paid $3 per day,
the prevailing rate of wages there. The prevailin g rate of wages for the same class of work in the City of New
York was $4.50 per day. The contractor and subcontractor had both agreed to com ply with the “ prevail­
ing rate of wages ” clause of the labor law. The court held that the laborers in Maine were not em ployed
“ on or about or u p on ” the public work within the intent of that act, and hence did not violate the labor law.




64

W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

The Ryan case was the last to come before the highest court of the
State under this law. The next development came as a result of the
constitutional amendment proposed by the two legislative sessions of
1902 and 1903. The amendment was adopted on November 7, 1905,
by a vote of more than two to one. It provides that “ the legislature
may regulate and fix the wages or salaries, the hours of work or labor,
and make provision for the protection, welfare, and safety of persons
employed by the State, or by any county, city, town, village, or other
civil division of the State, or by any contractor or subcontractor per­
forming work, labor, or services for the State.1
”
Nebraska.—In 1901 2 the Nebraska Legislature provided that
public work in certain cities should be done by union labor to be
paid for at $2 per day and that skilled labor should be paid for at the
current scale of union wages and that eight hours should constitute a
day’s labor. This law was before the supreme court3 of the State in
1914, and was declared unconstitutional because it took private prop­
erty without due process of the law.
SUMMARY.

The history of legislation and court decisions on the rate of wages
in the United States4 expresses the fear of governmental regulation
which was current the first half of the nineteenth century. Public
law was so strongly imbued with the ideals of personal liberty that
the courts reflected the popular sentiment that inspired those laws.
In some cases the courts went so far as to hold that there was a liberty
1 New Y ork Constitution, art. 12, sec. 1, Bliss’s N ew Y ork A nno. Code, 1913, 6th ed., vol. 4, p. 5010.
of 1901, ch. 17, p. 217, amended 1907; ch. 112, p. 388, 1909; ch. 17, p. 161.
3 Wright v. Hoctor, 95 Nebr. 342, Feb. 13, 1914.
4 Legislation on this subject will be found in the following States.
Indiana. Acts of 1891, ch. 114, provided that not less than the rate of per diem wages in the locality where
the work is performed shall be paid to laborers em ployed b y the Stale or subdivision of the State.
Delaware. Acts of 1901-1903, ch. 410, p. 845, provided that wages of employees on all public work shall not
be less than the prevailing rate.
Kansas. Acts of 1905, ch. 477, p. 782, amended 1907, ch. 393, p. 571-572, provided for the paym ent of cus­
tomary rates to employees of the State printing office.
Maryland. Acts of 1908, ch. 85, p. 613-614, repealed and reenacted act of 1S98, ch. 458,provided that not
less than the current rate of per diem wages in the locality where the work is performed shall be paid to
laborers, workmen, and mechanics so em ployed b y or on behalf of the m ayor and city council of Baltimore.
(See section on minimum rates, p. 56, footnote.)
Oklahoma. Acts of 1909, ch. 39, p. 635. That not less than the current rate of per diem wages in the
locality where the work is performed shall be paid to laborers * * * in public institutions and public
work.
Massachusetts. Acts of 1909, ch. 514, p. 731; amended 1914, ch. 474, p p. 413-414. The wages paid to
mechanics em ployed on public works must not be less than the prevailing rate of wages in the same
occupation in the locality.
Oregon. Acts of 1911, ch. 266, p p. 458-463, provided that the current rate of wages be paid employees
of the State printing office.
Arizona. Acts of 1912, ch. 78, p p. 415-416, provided that eight hours shall constitute a day’s labor for all
persons em ployed b y the State and its political subdivisions and that not less than the current rate of per
diem wages in the locality where the work is performed shall be paid to such persons.
United States. Acts of 1912, vol. 37, ch. 355, p. 482, current rates to plate printers in the Bureau of
Engraving and Printing.
California. Acts of 1915, ch. 671, pp. 1318-1319. Employees of State printing office shall be paid current
rates in the principal cities of the State.

2 Nebraska.—Acts




RATES OF W AGES.

65

of contract belonging to public corporations which must be pro­
tected, as well as a personal liberty which must be assured to all
natural persons. But the later decisions have gone far away from
this standard, although they still hold to the idea of freedom of con­
tract for all natural persons sui juris, except where restrictions are
justified under the police power.
The conclusions arrived at by the courts of the United States
regarding the power of the legislature to affect the rate of wages
may be summarized as follows: 1
1. The legislature may stipulate, where the State itself is a direct
employer of labor, the hours of work and rate of payment. The
legislature as the lawmaking body of the State government is as free
to make laws under which the government’s work shall be carried
on as any other employer. It may set either a minimum or'a maxi­
mum standard of wage or it may direct that the “ current rate” be
paid. There is no doubt of the power of the legislature to act in
such a matter. The contrary contentions of the Indiana courts,
based on arguments that a high wage rate might or would confiscate
the taxpayers’ property are not, therefore, in accord with the best
decisions.
2. When municipalities or subdivisions of a State are required by
law to pay a certain rate, or are permitted to fix the rate themselves,
no valid objection could be raised on the ground that “ freedom of
contract” is violated by such a law. The Ohio courts have held
that laws fixing the rate of wages violated the State bill of rights and
the fourteenth amendment of the Federal Constitution; but in the
light of the ruling of the United States Supreme Court, in Atkin v.
Kansas, the latter objection falls and the former is not in accordance
with the best opinion. The continued denial by the courts of New
York of the right of the State to determine the conditions of its own
contracts resulted in an amendment to the State constitution. This
amendment changed the character of the courts’ decisions and made
them more in consonance with the reasoning of the decision of Atkin
v. Kansas.
3. The law regulating the rate of wages which contractors who
undertake work for the State must pay is obligatory on them to
obey. The State and the contractor have equal liberty. No man
is forced to become party to a contract with the State to perform
certain public work. He does it, if at all, accepting the conditions
of the contract voluntarily. The State, in inserting in its contracts
that a certain rate of wages shall be paid the laborers employed by
the contractor is exercising that freedom and right that individual
1 Cases in which the decisions turn on peculiar provisions of the State constitutions or on laws that provide
that contracts be let to the lowest bidder are disregarded.

105598°— 18— Bull. 229-------5




66

W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

citizens demand and have in making the conditions in their own pri­
vate contracts. The decision in the Atkin case laid down doctrine
which it is reasonable to assume will not be questioned.
The attitude of this court is important in view of the tendency of
many of the State courts to make the infringement of the fourteenth
amendment one of the grounds of their decisions when holding that
statutes of this nature are unconstitutional. No appeal can be made
to the United States Supreme Court from the decisions of these high
State courts, and when the State court declares the statute unconsti­
tutional on the ground that it is in conflict with the fourteenth
amendment no remedy will be' afforded by amending the State con­
stitution. At times the State courts are more sensitive to infrac­
tions of the Federal Constitution than the Supreme Court itself.
When the Court of Appeals of New York State nullified the eighthour law and its prevailing-rate-of-wages section under the four­
teenth amendment, no further appeal remained for those interested
in sustaining the validity of the law. But shortly after this the
United States Supreme Court in the Atkin case, involving a similar
statute, held that its constitutionality was beyond all question.
The question that these and similar statutes were contrary to the
Federal Constitution having been settled, the State constitution was
amended to permit the legislation which public opinion demanded.
Until very recently, however, if the State court annulled a law of this
character, alleging that it conflicted with the Federal Constitution,
its decision would hold.1
The labor cases furnished one of the strongest arguments for the
modification of the judiciary act in order that appeals on Federal
questions might be taken to the United States Supreme Court
whether the ruling in the State court was favorable or adverse.
4. Legislation regulating the rate of wages in private employments
has not been attempted in the United States until recently. The
apparent exception in the pension-attorney law is explained by the
peculiar position of the Government. As the grantor of the pension
it can determine the conditions of the grant. Laws regulating the
fees of attorneys can not be justified as can the legislation discussed
in the foregoing divisions. These laws can not be justified on the
ground that the State is an immediate party in interest, but they
must be defended on the ground that, under the police power, the
State must act for the good of society as a whole.
5. The California legislation concerning wages on street railways
is the only example in the United States (the Virginia law excepted)
of legislation regulating the rate of wages for men in private employ­
ments. The law has never been tested in the courts, but in the
present state of public opinion it is almost certainly unconstitutional.




1 United States.— Acts of 1914, 38 Stat. p. 790.

67

RATES OF W AGES.

Such is not the case, however, with the legislation regulating the rate
of wages for women, in private employments. The Oregon minimumwage law has been held by the State supreme court and the United
States Supreme Court to be constitutional.
D E C ISIO N S ON R A T E O F W A G E -P A Y M E N T L E G IS L A T IO N .
Date.

Title ofcase.

Month
Year. and day.

State v. M
artindale.
Clark v. State of N
ew
York.

State.

1891

Oct. 10

1894

A p r .' 10

1895

Mar. 18

Frame v. F elix .

Pennsylvania.

1897

June 16

Kansas............

1897

June 22

Billingsley v. Bd. of Co.
Com.
Bramley v. N orton ____

Dec. 10
9
1899 Dec.
1901 Feb. 26
1901 . . . d o ____
1901 Mar. 8
1901 July 6
1901 Oct. 10

In re A sh b y ....................
In re D alton....................
McCann v. New Y o r k ..
Rodgers v. Coler.............
Treat v. Coler..................
Beard v. Bd. of Co. Com.
Lewis v. Dunne..............

Kansas____
------d o .........
New York.
-----d o .........
-----d o .........
Kansas-----California..

1902 Jan. 11
1902 Jan. term

Kansas.
O h io___

1903

Apr. 28

1903
1904
1912

N ov. 30
Jan. 29
May 31

1913

July 10

1914
1914

Feb. 13
Mar. 17

Kansas v. A tk in .............
City of Cleveland v.
Clements Bros.
State v. James W ilson ..
Street v. Varney Elec.
Supply Co.
People v. Orange Co.
R d . Const. Co.
A tkin v. Kansas.............
R yan v. N. Y ..................
Malette v. City of Spok­
ane.
Jahn Cont. Co. v. City
of Spokane.
W right v. H octor...........
Stettler v. O’H ara..........

1914
1914

Apr. 28
May 12

Simpson v. O’Hara.
B opp v. Clark..........

1902
1903

June
Apr.

Kansas-----New

York.

Ohio.

Kansas..
Indiana.
New Y ork.
Kansas..........
New Y o r k ...
Washington..
.d o .
Nebraska.
Oregon —
------ d o.
Io w a ...

Subject.

Decision.

Prevailing rate on
public works.
Maximum or mini­
mum rate on public
works.
Maximum or m ini­
mum.
Prevailing rate..........
Maximum
m um .
Prevailing
.d o .
.d o .
.d o .
.d o .
.d o .
Maximum
mum.
Prevailing
Maximum
mum.
Prevailing
Maximum
m um.
Prevailing

or

mini­

rate...........

Construction.
Constitutional.
Construction.
Do.
Unconstitutional.

mini­

Construction.
Constitutional.
Construction.
Unconstitutional.
Do.
Construction.
Unconstitutional.

rate........... .
or mini­

Constitutional.
Unconstitutional.

rate........... .
or mini­

Construction.
Unconstitutional.

or

rate........... .

Do.

------ d o ...........................
------ d o ...........................
Maximum or m ini­
mum.
------ d o ...........................

Constitutional.
Do.
Construction.

____d o .............................
Minimum rate in pri­
vate employments.
....... d o .............................
Minimum rate on pub­
lic works.

Unconstitutional.
Constitutional.

Do.

Do.
Do.

Summary.—Minimum rate in private employments—3 cases held constitutional.
Maximum or minimum rate on public works—1 case held constitutional; 5 cases
held unconstitutional; 3 cases construction of statute. Prevailing rate on public
works—4 cases held constitutional; 3 cases held unconstitutional; 6 cases construction
of statute.




CHAPTER V.—PERIOD OF PAYMENT OF WAGES.
The common law followed the rule that the laborer should be paid
at the end of a certain period of work dependent upon the terms of
hiring. The reason was that it was recognized that the laborer
advanced to the employer a day’s work, a week’s work, or a month’s
work, according to the terms agreed upon, and that he should be
paid at the end of the agreed period. The employer has always
been quick to recognize this and has sought to make the periods of
payments at long intervals. The longer the interval between pay­
ments, therefore, the larger the loan which the workingman makes to
bis employer without interest. Usury laws are based upon the theory
that the lender and the borrower of money do not occupy the rela­
tion of equality which parties do in contracting in regard to other
kinds of property, and that the borrower’s necessities place him at
the mercy of the lender. Statutes which aim to enable the work­
man to pay cash for his supplies and to protect him from the disad­
vantages of purchasing on credit are based upon the same principle.
Statutes designed to insure the payment of wages to the employee
at certain regular intervals are of comparatively recent origin. The
object of such legislation is to protect the workman against the hard­
ships resulting from payment at long intervals and the temptations
which inevitably accompany buying on credit. It is the choice
between the credit system with its evils or the cash system with its
independence for the laborer.
LEGISLATION IN EUROPEAN COUNTRIES.

Laws of this kind exist in most of the countries of Europe. Some
of the laws impose rigorously upon the employer the obligation to
make payments to employees within the time which is specified,
while others reserve to the contracting parties the right to abrogate
the law by contracts. Switzerland,1 Belgium,2 and Russia 3 belong
to the first group of countries, which fix by legal compulsion the
1 Switzerland.—Federal Law, Mar. 23, 1877, sec. 10: “ Employers must pay their employees in the fac­
tory at least once every 15 days in cash, in legal tender. Special agreements between employers and
employees and the factory regulations m ay provide for m onthly paym ents.” U. S. Bureau of Labor
Statistics Bui. No. 26, Jan., 1900, p. 149. Am ended June 26, 1902; repealed and superseded, 1914.
2 Belgium.—A ct, Aug. 16, 1887, sec. 5: “ W here wages are not in excess of 5 francs [97 cents] per day
they must be paid to the workingmen at least tw ice a m onth and at least at intervals not exceeding 16
days. In piece or task work a partial or final adjustment o f wages due must be made at least m onthly.”
U. S. Bureau of Labor Statistics Bui. No. 26, Jan., 1900, p. 117.
3 Russia.—Law, Mar. 14-26, 1894. Penal and Industrial Codes: “ Wages must be paid at least once a
month, if the contract is concluded for a longer tim e than one m onth, and at least twice a m onth, if the
duration of the contract is not determ ined.” U. S. Bureau of Labor Statistics Bui. No. 30, September,
1900, p. 1031.

68




PERIOD OF P A Y M E N T OF WAGES.

69

maximum interval which can elapse between two payments. In
Switzerland the development of a system of labor regulations in the
Cantons brought about a strong demand for a general law. This
agitation resulted in having placed in the constitution of 1874,
article 34:
The Confederation has the right to make uniform prescriptions concerning the
labor of children in factories, concerning the duration of labor that may be required
of adults, as well as concerning measures for the protection of workingmen against
the exercise of unhealthy and dangerous industries.

In pursuance of this power the Federal Government enacted a
general factory law on March 23, 1877. It required that wages must
be paid fortnightly and at least at intervals not exceeding 16 days,
except when a contract is made to the contrary; but then payment
must take place at least once a month. If work is done by the piece,
the conditions of payment are fixed by private contract. Sometimes
payment must take place not later than the first pay day after the
completion of the work.1
The second group of countries, those in which the periods of wage
payment are subject to voluntary acceptance on the part of employer
and employee, include Austria,2 and Norway.3 These laws declare
the principle that the payment take place each week; but they rec­
ognize the existence of contracts to the contrary. In Germany 4 the
laws leave the determination of the period of payment to the free
contract of the parties. Under certain conditions this liberty is
restricted. Municipalities can for specified industries require that
the wages be paid at regular intervals; and, in the factories employ­
ing at least 20 workmen, the factory rules must state the time and
place of the payment of wages.
A resolution was passed on July 13, 1889, by the French Chamber
of Deputies, which provided for the payment of wages at intervals
of 15 days. At the time nothing came of this resolution. The
Senate passed a bill in 1894 which required that the wages of
employees should be paid at least twice a month, the greatest inter­
val allowable to be 16 days, except when arranged otherwise by
written contracts. After a lohg delay the principle of this bill
became a law 5 on December 8, 1899.
In England 6 the question of the period of payment is left entirely
to the freedom of the contracting parties.
1 Switzerland.—Law, Mar. 23, 1877. Am ended b y act June 26, 1902. U. S. Bureau of Labor Statistics
Bui. No. 26, January, 1900, p. 149.
2 Austria.—Law, Dec. 20, 1859, amended Mar. 15, and June 17, 1883; Mar. 8, 1885; N ov. 27, 1896; Feb.
23, 1897. U. S. Bureau of Labor Statistics Bui. No. 28, May, 1900, pp. 552-597.
3 N orway.—Law, June 27,1892. U. S. Bureau of Labor Statistics B ui. No. 30, September, 1900, pp. 10571063.
* Germany.—Law, June 1, 1891. U. S. Bureau of Labor Statistics Bui. No. 27, March, 1900, pp. 314-379.
5 U . S. Bureau of Labor Statistics Bui. No. 25, N ovem ber, 1899, p . 826.
6 Idem , p. 850. But see 1 and 2 Geo. V , ch. 50, p. 289, Dec. 16, 1911, as to coal mines.
Greece.—A ct No. 4030, Jan. 24, Feb. 6,1912, weekly or m onthly pay day. Mar. 26-A pr. 8, 1914.
Western Australia.—The W orkm en’ s Wages A ct, Oct. 28, 1898, weekly.
New Zealand.—A ct No. 204, 1908, art. 31, m onthly.
Ontario.—A ct 6, Geo. V , ch. 12, 1916, wages to be paid miners at intervals of not more than tw o weeks.




70

WAGE-PAYMEISTT LEG ISLATION IN

T H E U N IT E D STATES.

LEGISLATION IN THE UNITED STATES.

In the United States 1 the period when wages are to be paid is
usually fixed by the contract of employment or by custom. An
agreement to do a piece of work, or to work for a stated period for
a certain sum, no time of payment being set, is construed to be a
contract to pay only when the labor is completed or the contract is
otherwise terminated.2 However, many States have passed laws to
fix the period of payment of wages.
W E E K L Y P AYM E N TS.

Massachusetts.—The labor legislation of Massachusetts 3 exceeds in
volume that of any other State. It is based largely upon English
precedents and has served as a model for similar legislation elsewhere
in the United States. The demand for weekly payment was first
made about 1875 among the Fall River unions. The employees took
their grievances to the legislature and with the moral support of the
State bureau of statistics of labor,4 succeeded in having a law 5 passed
in 1879 which provided that “ cities shall, at intervals not exceeding
seven days, pay all laborers who are employed by them at a rate of
wages not exceeding $2 a day if such payment is demanded.” This
act served as an entering wedge. Seven years later the law 6 was
extended to certain corporations, which were subject to a penalty
of from $10 to $50 with costs for violation of the act. After the
enactment of this law the struggle of the employee for the recog­
nition of the principle was won, for there have been repeated amend­
ments 7 to the law, each one enlarging its scope.8
1 New Y ork State Library: Summary of State legislation, No. 1, 1890, to No. 36, 1907, A lbany, N. Y .
F. J. Stimson: Labor in Its Relation to Law, New Y ork, 1895; H andbook to the Labor Law of the
United States. New York, 1896.
United States Industrial Commission, R eport 1900, vol. 5, pp. 55-67, 223-225. Final report 1902, vol.
19, pp. 735-740. Washington, D. C.
L. D. Clark: The Law of the E m ploym ent of Labor, ch. 2, pp. 45-72. New York, 1911.
J. R . Commons and J. B. Andrews: Principles of Labor Legislation, pp. 35-60. New York, 1916.
2 Thom pson v. Phelan, 22 N. H . 339-351, July term , 1851.
Thorpe v. W hite, 13 Johnsons R ep. (N . Y .) 53, 54, January, 1816.
3 S. S. W hittlesey: Massachusetts labor legislation, in Annals American A cadem y o f Political and Social
Science, Supplement, January, 1901.
F. S. Baldwin: R ecent Massachusetts labor legislation, in Annals American A cadem y of Political
and Social Science, v o l. 33, No. 2, pp. 63-76, March, 1909.
Labor laws and their enforcement w ith special reference to Massachusetts, edited by Susan M. Kings­
bury, New Y ork, 1911, pp. 328, 329.
4 Established June 22, 1869. These bureaus, established in the several States in later years, were all
intim ately connected with labor legislation.
&Massachusetts.—A cts of 1879, ch. 128, p. 483.
6 Massachusetts.—A cts of 1886, ch. 87, pp. 73, 74.
7 Massachusetts.—A cts of 1887, ch. 399, pp. 1006,1007; 1891, ch. 239, pp. 809,810; 1894, ch. 508, p. 648; 1895,
ch. 438, p. 484; 1896, ch. 241, p. 188 and ch. 334, p. 277; 1898, ch. 481, p. 438; 1899, ch. 247, p. 221; 1900, ch.
470, p. 468; 1902, ch. 450, pp. 364,365; 1906, ch. 427, p p. 445,446; 1907, ch. 193, pp. 147,148; 1908, ch. 650,
pp. 779, 780; 1909, ch. 514, pp. 759, 760: 1914, ch. 247, pp. 216-218; 1915, ch. 75, pp. 62, 63; 1915, ch. 214, p.
196; 1916, ch. 14, p. 11; ch. 229, pp. 203, 204. (See pp. 73, 74.) As affecting th e tim e o f paying wages, Massa­
chusetts A cts of 1911, ch. 249, pp. 212, 213, provide that “ manufacturing corporations and contractors,
persons or partnerships engaged in any manufacturing business wherein 100 employees or more are em­
ployed shall, on the day chosen as p a y day, pay such of their employees as are on that day working in
the manufacturing establishment, before the close of the regular working hours.”
s Massachusetts A cts of 1910, ch. 350, pp. 272, 273; 1911, ch. 208, pp. 156, 157; ch. 249, pp. 212, 213, provides
for paym ent of wages on regular pay day and before close of workday.




PERIOD OF P A Y M E N T OF WAGES.

71

Connecticut.—Connecticut was the first State1 to follow the
example thus set by Massachusetts. A law 2 passed in 1886 pro­
vided that the laborers in the employ of the State at the State capitol
should be paid weekly. This was the first tangible result of an agita­
tion begun in 1885 by the Knights of Labor for the enactment of a
weekly payment law. The principle was carried further in 1887
by a law 3 which required that corporations should pay their em­
ployees once a week, and without discount, all wages earned and
unpaid up to the eighth day preceding the day of payment. Cor­
porations, however, were permitted to pay their employees weekly
80 per cent of the estimated wages earned and unpaid before the
eighth day preceding the day of payment, if paid in full once a
month. The penalty for violation was $50. The law remains the
same to-day.
New Hampshire.—New Hampshire4 adopted the idea in 1887.
Certain enumerated corporations employing more than 10 persons
at one time were required to pay the wages earned each week within
eight days after the expiration of the week, or upon demand after
that time. Only slight changes have since been made in the law.
New York.—The New York Legislature in 1890, under the influ­
ence of the New England example and an urgent message from
Gov. Hill in 1889,5 substantially adopted the provisions of the
Massachusetts law, which at that time applied only to corporations.6
No sooner was the law enacted than it was brought before the
supreme court of the State7 on an application for a mandamus
by a clerk in the mayor’s office in the city of Buffalo. The court
denied the writ on the ground that the statute was limited in its
scope to laborers and workmen engaged in manual labor. It was
held in another case that the term “ wages” used in the law did
not include salary.8 Several explanatory amendments 9 were made
to the act in 1893 and in 1895.1 The whole act was repealed in
0
1897. At this time all of the laws relating to labor were codified
into the general labor law.1 Slight amendments 1 were made by
1
2
1 A . M. Edwards: Labor legislation of Connecticut, American Econom ic Association, 3d series, August,
1907, vol. 7, No. 3, pp. 413-734.
2 Connecticut.—A cts o f 1886, ch. 130, p. 628.
3 Connecticut.—A cts of 1887, ch. 67, pp. 696, 697.
* New Hampshire.—A cts of 1887, ch. 26, p. 424; amended 1909, ch. 134, pp. 507, 508; 1911, ch. 78, pp. 81, 82.
s F. F. Fairchild: Factory legislation of the State of New York, American Econom ic Association, 3d
ser., Novem ber, 1905, vol. 6, No. 4, pp. 737-948.
e New Y ork .—A cts of 1890, ch. 388, p. 741.
7 People v. C ity of Buffalo, 57 Hun. 577-584, October term, 1890, Judge Macomber.
8 People ex rel. V an Valkenburgh v. Myers, 33. N. Y ., 18-23, Oct. 8, 1890. See also report attorney
general, 1894, p. 147.
9 New Y ork.—A cts of 1893, vol. 2, ch. 717, pp. 1783-1785.
10 New Y ork.—A cts of 1895, vol. 1, ch. 791, pp. 555-557.
1 New Y ork.—A cts of 1897, ch. 415, p. 464.
1
12 New Y ork.—A cts o f 1908, vol. 2, ch. 442, p. 1246.




72

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

the legislature in the session of 1908. The law 1 was again con­
solidated in 1909, and an addition to section 11 was made which
compelled steam surface railroads to pay twice each month on or
before the first and fifteenth days.
Rhode Island.2
—Rhode Island in 1891 passed a law 3 requiring
corporations and cities to pay employees weekly. The constitu­
tionality of the law was tested the next year in the case of State v.
Brown & Sharpe Manufacturing Co. The charter of the company
made it subject to the provisions of the State law that “ all acts of
incorporation hereafter granted no&y be amended or repealed at the
will of the general assembly.” Subsequently, the general weekly
payment act was passed. The company claimed that the law was
in conflict with the constitutions of the State and of the United
States, because it interfered with freedom of contract of both the
employee and the corporation, and because it was class legislation
of th.6 worst kind, since it applied only to certain classes of corpo­
rations. The constitutional conflicts were resolved into the question
whether or not the law was a valid exercise of the power reserved to
the general assembly to amend or repeal articles of incorporation. The
court answered the question in the affirmative. The question was
raised by the court as to whether the act was an exercise of the police
power of the State. On this point it said:4
*
* * It is a matter of common knowledge that while corporations, owing to this
very corporate power of aggregating capital, are the richest and strongest bodies, as a
rule, in the State, their employees are often the weakest and least able to protect
themselves, frequently being dependent upon their current wages for their daily
bread. If they get credit they may pay for it, as others do, and in proportion to their
inability to pay cash and the risk in trusting them, they have to pay for the time
indulgence they obtain. * * * poverty and weakness can wage but an unequal
contest with corporate wealth and power, and * * * the legislature in granting valu­
able corporate powers and privileges might be willing to do it, or, if already granted,
to continue them if it has retained the power to amend such original grant, only on
condition of minimizing corporate power to drive hard bargains with their employees,
who, too often in the sharp and bitter competition for work, have to submit to such
terms and conditions as their employers see fit to prescribe.
It has been urged that chapter 918 is unconstitutional because it interferes with
the rights of employees to make such contracts with a corporation as they see fit. No
inhibition is placed upon employees to make such contracts as they choose, with
any person or body, natural or artificial, that is authorized to contract with them.
But corporations are artificial bodies and possess only such powers as are granted to
them, and natural persons dealing with them have no right to demand that greater
power should be granted to corporations in order that they may make other contracts
with such corporations than the corporations are authorized to enter into. Chapter
1 New Y ork.—Consolidated Laws 1909, ch. 36, p. 17; 1909, ch. 206, pp. 322, 323. This act was construed
in People b y Mitchell et al., State Industrial Commission v. Interborough R apid Transit Co., 154 N. Y .
Supp. 627-631, July 9, 1915.
2 J. K . Fowles: Factory legislation of Rhode Island, in American Econom ic Association, 3d ser., 1908,
vol. 9, No. 3, pp. 443-561.
8 R hode Island.—Acts of 1891, ch. 918, pp. 143, 144.
4 State v. Brown & Sharpe Mfg. Co., 18 R . 1 . 16-38, Oct. 3, 1892.




PERIOD OF P A Y M E N T OF W AGES.

73

918 was clearly passed in the interest of the employee and it is not easy to see how it
would operate to his disadvantage. If he did any labor under a time contract which
the corporation was not authorized to make, he would be paid, not under the contract,
but under a quantum meruit every week.

The power of the legislature to regulate contracts between natural
persons was not before the court, but the opinion is one which treats
the subject not from a strictly legal point of view, but with express
recognition of the actual economic and social conditions.
Illinois.—Quite another line of reasoning is found in the decisions
of the Illinois supreme court, where the next case arose. The
legislature enacted a law 1 on April 23, 1891, which required certain
corporations to pay their employees weekly and prohibited contracts
for other times of payment.
It was held by the Supreme Court of Illinois 2 that the act was
contrary to the due process guaranty of the State constitution. The
case of Frorer v. People 3 was cited as authority. The statute, since
it did not apply to all corporations, was also held to contravene the
constitutional provision that corporate charters were not to be
amended by special laws. Discussing the right to due process, the
court said:
*
* * The right to contract necessarily includes the right to fix the price
at which labor will be performed and the mode and time of payment. Each is an
essential element of the right to contract, and whosoever is restricted in either as the
same is enjoyed by the community at large, is deprived of liberty and property.

This decision shows the tendency to treat the problem from a
purely legal point of view. The premise underlying the reasoning
is that all men are placed on equal terms in contracting, and, there­
fore, the legislature can not interfere under the constitution to bestow
on either employer or employee any advantage. In the opinion
there is no evidence to show that the court even considered the pos­
sibility that the industrial changes occurring in recent years have
operated to place the employee at a disadvantage in the practical
exercise of his constitutional freedom of contract.
The next cases were those that tested the uradical*' ideas of the
Massachusetts Legislature. The advisability of extending the
weekly payment laws from corporations to private individuals and
partnerships was before the legislature. The supreme judicial court
was called upon by the legislature for an opinion as to the constitu­
tionality of a proposed act.4 The justices decided that under the
State constitution the legislature has the power to extend the
application of the law to private individuals and partnerships and
that such legislation would not conflict with the Declaration of




- Illinois.—Acts of 1891, ch. 48, pp. 213, 214.
2 Braceville Coal Co. v. People, 147 111. 66-75, Oct. 26, 1893.
3 Frorer v. People, 141 HI. 171, June 15, 1892. (See p. 100.)
4 In re House hill No. 1230, 163 Mass. 589-596, May 6, 1895.

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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

Rights nor with the fourteenth amendment to the Constitution of the
United States. The court said:1
*
* * We know of no reason derived from the Constitution of the Common­
wealth or the United States, why there must be a distinction made in respect to such
legislation between corporations and persons engaged in manufacturing, when both
do the same kind of business. * * *

The next case2 which came before the court was Commonwealth
v. Dunn, to determine the effect of the act of 1895. The court held
that the act made persons and partnerships engaged in any manu­
facturing business and having more than 25 employees subject to
the general provisions of the statute of 1894? concerning manufac­
turing corporations.
Under the broad grant of powers contained in the State consti­
tution, the Massachusetts courts have consistently upheld weekly
payment laws, applying not only to corporations but to individuals
as well. The judges have not been forced to undertake collateral
lines of reasoning to justify their decisions. They meet squarely
the questions at issue and place their decisions upon the ground
that the legislature is the judge of conditions. The courts take the
position that the legislature must decide whether the law will pro­
mote the ends of good government and that the courts will rule
only on questions of law.
Indiana.—The Indiana Legislature provided8 in 1891 for the
weekly payment of wages to within six days of pay day. Subse­
quent amendments to the act broadened it to include persons,
companies, corporations, or associations, interstate common carriers
excepted. In the case4 of International Text-Book Co. v. Weissinger
it was held that in view of the importance to the State of the well­
being of the wage earners, and in view of the temptations to sacri­
fice future earnings, the disability imposed by the act as to the as­
signments of wages constituted a lawful exercise of the police power
and was not in violation of the Stale constitution as an unreason­
able restraint upon the liberty of the citizen. Nor was it a depri­
vation of property without due process of law in violation of the
fourteenth amendment to the United States Constitution. The
constitutionality of this act was questioned before the State supreme
court again in 1903 in the case 5 of the Republic Iron & Steel Co.
v. State. The attorney general sought to justify the law upon the
ground that the wage earners were not upon an equal footing with
employers; that opportunities for oppression and consequent public
1 In re House b ill N o. 1230, 163 Mass. 589-596, May 6, 1895.
2 Commonwealth v. Dunn, 170 Mass. 140-142, Jan. 8, 1898. See also Gallagher v. Hathaway Mfg. Co., 172
Mass. 230-233, N ov. 23, 1898; Ferry v. Kinsley, 195 Mass. 548, 549, M ay 15, 1907.
s Indiana.—Acts of 1891, ch. 83, pp. 108,109, amended 1893, ch. 114, p. 201; 1899, ch. 124, pp. 193, 194;
1911, ch. 68, p . 110.
4 International Text-B ook Co. v. Weissinger, 160 Ind. 349-355, N ov. 25, 1902.
s R epublic Iron & Steel Co. v. State, 160 Ind. 379-392, Apr. 8, 1903. See also Chicago & Erie Railroad Co.
v. Ebersole, 173 Ind. 332-335, Jan. 13, 1910.




PERIOD OF P A Y M E N T OF W AGES.

75

suffering would ensue; finally, that since thrift was beneficial to the
community, it should be encouraged by enabling workmen to pay
cash for current demands, and this could only be done by requiring
frequent payments of wages. The court held that such legislation
could not be sustained as a proper exercise of the “ police power”
of the State.
Chief Justice Hadley said:
It is not denied that appellant, though a corporation, is a person, within the rulings
of the Supreme Court of the United States, and as such may demand that its liberty
and property be safeguarded under the last two clauses of section 1 of the fourteenth
amendment. * * * It is furthermore conceded that appellant may invoke, as it
does, the guaranties of the Federal and State Constitutions against the impairment of
contracts. * * * Labor is property. It is exchangeable for food and raiment and
comforts, and may be bought and sold, and contracts made in relation thereto, the
same as concerning any other property. The question, therefore, arises: Is the arbi­
trary denial of the right to exchange money for labor * * * in matters which
affect no public interest an unwarrantable interference with the right of contract, and
a depriving of the person of liberty and property without due process of law? The only
rational grounds upon which it is claimed there may be legislative interference with
freedom of contract for lawful purposes is in the exercise of that undefined, reserved
force of the people known as the police power. There is a divergence of view as to
the proper scope and application of this power, but all authorities seem to agree that
it may be exerted only on behalf of some general, public interest, as distinguished
from individuals or classes; that is to say, to protect the public health, safety, mor­
als, prevent fraud and oppression, and promote the general welfare. It is not to be
invoked to protect one class of citizens against another class unless interference is
for the real protection of society in general. * * * If the master can employ only
upon terms of weekly payment, the workman can find employment on no other
terms. It will be observed that the statute gives the parties no choice—no right to
waive the provisions of the law. * * * Any law or policy that disables the citi­
zen from making a contract whereby he may find lawful, needed, and satisfactory
employment is unreasonable. * * * The statute places the wage earners of the
State under quasi guardianship. 1st classes them with minors and other persons un­
der legal disability. * * * We do not assert that the legislature is powerless to
regulate the payment of wages when the same are paid at unreasonable periods, or
that a community composed largely of workingmen may be injuriously affected by
unduly delayed payments. * * * We would not be understood as holding that
the freedom of contract is wholly beyond legislative control. * * *

This decision places the Indiana court in line with the reasoning
of the Supreme Court of Illinois.
Vermont.—The Vermont Legislature passed a law 1 in 1906 which
required corporations engaged in certain enumerated classes of bus­
iness to pay their, employees in lawful money each week. The valid­
ity of the act was questioned in the case2 of Lawrence v. Rutland
Railroad Co. on the ground that it violated the State constitution
because it contravened certain portions of the bill of rights; and the
Federal Constitution because it deprived the defendant of due pro­
cess and equal protection of the laws.
1 Verm ont.—Acts 1906, ch. 117, p. 114.
2 Lawrence v. Rutland Railroad Co., 80 V t. 370-390, N ov. 16, 1907.




76

W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

After an exhaustive and careful review of the cases in point, the
court held that the act did not infringe upon the clauses of the con­
stitution. The court said in part:
Nor does the act deny to the defendant the equal protection of the laws. True, it
does not include all corporations doing business in the State; but it includes all of the
particular class to which the defendant belongs, namely, all railroad corporations, and
all other transportation corporations, and all telegraph and all telephone corporations
and all incorporated express companies, and perhaps some other public-service cor­
porations. But it is not necessary to its validity that it should include all corporations
doing business in the State; for, although class legislation, discriminating against some
and favoring others, is prohibited, yet special legislation does not contravene the
equality clause of the fourteenth amendment, if, within the sphere of its operation,
all persons within its provisions are treated alike in like circumstances and conditions.

The concept of class legislation which this court exhibits furnished
a strong contrast to that displayed by the Illinois court where it is
held 1 that a law must operate upon all corporations or individuals,
not merely upon corporations and individuals included in a particular
class. On the plea that the act was invalid because it restricted the
rights of the defendant’s employees to contract with it, the court said:
*
* * But the restriction of their rights is not direct, but results from the restric­
tion of the defendant’s rights; and, as that restriction is good as to the defendant, the
rights of its employees are not thereby infringed, for they have no right to demand
greater liberty for the defendant in order that their liberty may be enlarged 2 * * *.

Other States 3have followed in the wake of these States until at the
present time 12 have laws on the subject of weekly payment oi wages
to employees. The provisions of these laws are taken chiefly either
from the Massachusetts or from the New York acts.4
B IW E E K L Y PAY M E N TS.

The principle of the laws prescribing the biweekly payment of
wages is identical with that at the basis of the weekly payment laws.
State legislatures which have passed such laws were influenced by the
weekly payment law enacted by the Massachusetts Legislature, but
hesitated to make such a sweeping invasion of the almost universal
1 Schofield, J., in Frorer v. People, 141 111. 171.
2 Lawrence v. Rutland Railroad Co., 80 V t. pp. 386,-387.
3 W isconsin.—Acts of 1889, ch. 474, p. 670; 1891, ch. 430, p. 613; 1901, ch. 47, pp. 56,57; applies to individuals
as well as corporations in the absence of contracts weekly or biweekly.
Kansas.—Acts o f 1893, ch. 187, pp. 270, 271, corporations; 1905, ch. 477, p. 782; 1907, ch. 393, p. 57; relates to
paym ent weekly of employees in State printing office.
Maine.—Acts of 1911, ch. 39, pp. 33, 34; 1913, ch. 26, pp. 22,23; 1915, ch. 296, pp. 285,286. Lawrew ritten and
made more inclusive in its scope. (S eep. 77.)
South Carolina Acts of 1916, ch. 546, p. 937, applies to all textile manufacturing corporations.
< Massachusetts.—Revised Laws, 1902, ch. 106, p. 470: “ E very manufacturing, mining or quarrying, mer­
cantile, railroad, street railway, telegraph or telephone corporation, every incorporated express com pany,
or water com pany, and every contractor, person or partnership engaged in any manufacturing business,
in any of the building trades, in quarries or mines, upon public works or in the construction, or repair of
railroads, street railways, roads, bridges or sewers or of gas, water or electric light works, pipes or lines, shall
pay weekly, each em ployee engaged in his or its business the wages earned b y him to w ithin six days o f
the date of said paym ent, but any em ployee leaving his or her em ploym ent, or being discharged from such
em ploym ent, shall be paid in full on the following regular pay day; and the com m onwealth, its officers,
boards and commissions shall so pay every mechanic, workman and laborer who is em ployed b y it or
them, and every county and city shall so pay every em ployee.”




PERIOD OF P A Y M E N T OF W AGES.

77

custom of monthly wage payments which prevailed in most lines of
industry prior to 1885. Biweekly payment laws represent a com­
promise between the advanced position of Massachusetts and pre­
vailing custom.
Maine.—Maine 1 adopted such a compromise in 1887 when it was
provided 2 that individuals, as well as corporations, employing more
than 10 persons should pay their employees biweekly up to within
eight days. A penalty of not less than $10'nor more than $25 was
set for violation of the act, but it applied only to corporations and not
to individuals. No means for the enforcement of the law were pro­
vided until 1893, when this duty was placed upon the factory inspec­
tor.3 A further amendment4 in 1895 defined the persons by whom
suit was to be brought under the act. “ The constitutionality of this
a c t5seems to have been taken for granted on account of the similarity
to that of the Massachusetts weakly payment law applying to all
manufactories which was held by the Supreme Court of Massachu­
setts 6 to be constitutional. * * * ” The law has now been
amended 7 to require the weekly payment of wages by corporations
and individuals engaged in certain enumerated pursuits.
Indiana.—In 1887 the Legislature of Indiana passed a law 8
which provided that the wages of miners and certain other em­
ployees should be paid at least once in every two weeks in lawful
money of the United States. By an a c t9 of 1889 all contracts
which waived the right to receive wages in lawful money at least
once in two weeks were declared unlawful. The law 1 was afterward
0
extended to include employees of manufacturers as well. TJae
validity of the act of 1887 was questioned in 1890.1 William P. Yaden
1
brought an action against Hancock & Conkel to recover wages due
for services while working in their mines. Yaden received judgment
in the lower court and the defendants appealed to the supreme court.
They pleaded both a verbal and written contract by which Yaden
expressly waived his right to demand and receive his wages every
two weeks. Such contracts were expressly prohibited by the act
of 1887 as amended in 1889. Judge Elliott delivered the opinion and
said in part:
*
* * Our judgment is that the provision of the statute forbidding the execution
of contracts waiving a right to payment in money is one that the legislature had power
1 E. S. W hitin: Factory legislation in Maine, Columbia U niversity Publications, New York, 1908.
2 Maine.—Laws of 1887, ch. 134, pp. 107, 108.
3 Maine.—Laws of 1893, ch. 292, p. 348.
4 Maine.—Laws of 1895, ch. 55, p. 50.
5 E. S. W hitin: Factory legislation in Maine, Columbia University Publications, New Y ork, 190P, pp. 58-67.
* e In re House B ill N o. 1230, 163 Mass. 589-596, May 6, 1895.
7 Maine.—Acts of 1897, ch. 236, p. 255; 1911, ch. 39, pp. 33,34; construed in Veitkunas v. Morrison, 114 Me.
256-259, Dec. 14, 1915; 1913, ch. 26, pp. 22, 23; 1915, ch. 296, pp. 285, 286.
8 Indiana.— Acts of 1887, ch. 12, p p. 13, 14.
9 Indiana.—Acts of 1889, ch. 93, p. 191.
10 Indiana.—Acts of 1891, ch. 83, p. 108; 1913, ch. 27, p p. 47, 48.
u Hancock et al. v. Yaden, 121 Ind. 366-375, Jan. 7, 1890.




78

W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

to enact. It is a fundamental principle that every member of society surrenders some­
thing of his absolute and natural rights in all organized States. * * * We can not
conceive a case in which the assertion of the legislative power to regulate contracts
has a sounder foundation than it has in this instance; for here the regulation consists in
prohibiting men from contracting in advance to accept payment in something other
than the lawful money of the country for the wages they may earn in the future. It
is of the deepest and gravest importance to the Government that it should unyieldingly
maintain the right to protect the money which it makes the standard of value through­
out the country. The surrender of this right might put in peril the existence of the
Nation itself.

Although the court addressed itself more particularly to the mode
rather than to the period of wage payment, as provided for in the
same section of the act, the line of reasoning developed applies to both
phases. The court started out with a general concept of the police
power, but turned aside to base its final decision upon the novel plea
that it was the duty of the legislature to provide means for sustaining
the standard of value of the national currency. That the court saw
the necessity to sustain the legislation but hesitated to do so on the
broad ground of the police power of the State is evident. Conse­
quently the case contributes nothing toward defining the meaning
of that phrase. It is, however, constantly referred to with approval
by the courts in later decisions.
More in point is a case 1 arising six years later. A miner, McGlosson, brought action to recover from the Seeleyville Coal &
Mining Co., a domestic corporation, for wages in mining coal. As a
conclusion of law, from the facts found, the circuit court stated that
McGlosson was entitled to recover a total of $226.97. The corpora­
tion contended that the law could not be sustained because all the
laws fixing the time of payment of wages due to laborers were in con­
flict with the constitution of the State and that the validity of the act
of 1887 had been previously denied.2
The decision held that the law did not interfere with the right of
contract nor with the provisions of the bill of rights prohibiting the
granting to any citizen or class privileges which on the same terms do
not belong to all other citizens. Since the payment prescribed by
the statute became mandatory on the employer only on the demand
of the employee to whom the wages were due, the benefit of the law to
the employee was limited and the decision therefore has small weight.
As compared with the logic used in Hancock v. Yaden it shows less
appreciation of the actual conditions under which the employee
works.
A period of 15 years intervenes between the first and the last of
the Indiana cases discussed. They do not indicate an increase of the
i Seeleyville Coal & Mining Co. v. McGlosson, 166 Ind. 561-570, May 29, 1906. See also M acbeth-Evans
Glass Co. v. Amana, 176 Ind. 1-1, June 2, 1911; Macbeth-Evans Glass Co. v. V an Blarican, 176 Ind. 69, 70,
June 9, 1911; Macbeth-Evans Glass Co. v. Jones, 176 Ind. 221-225, June 27, 1911.
8 R epublic Iron & Steel Co. v. State, 160 Ind. 379-392, 1903. (See pp. 74,75.)




PERIOD OF P A Y M E N T OF W AGES.

79

social viewpoint in the courts. Due to these decisions the legislature
has receded from its earlier position in favor of compulsory laws to
optional acts which afford the laborer no real protection.
Pennsylvania} —The Pennsylvania constitution of 1873 provides: 2
“ The general assembly shall not pass any local or special law, regu­
lating labor, trade, mining or manufacturing.” After repeated
failures in the early eighties the legislature passed a law 3 in 1887 to
secure the semimonthly payment of wages. The act applied to
“ every individual, firm, association, or corporation employing wage­
workers, skilled or ordinary laborers, engaged at manual or clerical
work, in the business of mining or manufacturing.” There were no
enforcement provisions and the law was silent on the question of con­
tracts which waived rights acquired under the act. An amending
a c t4in 1891, however, made its violation a misdemeanor and provided
a severe penalty of fine from $200 to $500. The responsibility for the
enforcement of the law-was placed upon the department of factory
inspection.
A case 5 arose in 1894 to determine whether the law prohibited all
contracts not within its terms. Bauer sought to recover under a
special contract for work and labor done for Reynolds at a stipu­
lated price. The agreement was that each month’s work was to be
paid for on the twentieth of the succeeding month. Bauer claimed
that such an agreement was void under the act of May 20, 1891.
Reynolds replied that the act in question was unconstitutional. In
this the court agreed at least in so far as the law made a contract
between parties against their will. It was not necessary to pass on
this point to decide the case but the court declared:
We may concede that the legislature may make void contracts as against public
policy, and that it is the sole and irresponsible judge of what is against the best inter­
ests of the community, and that the contract set up by the defendant being to pay once
instead of twice a month is void. The result is not * * * to give the plaintiff a
right to recover his wages before they are due, but to defeat his recovery altogether.
The law may refuse to enforce contracts which are against public policy, but it can
not bind parties to each other against their will or upon terms to which they have not
agreed. * * * Where the parties expressly agreed to make payment on the twen­
tieth of each month, there is no possible ground for implying a contract to pay on the
1st and the 15th.

This sustained the law with an interpretation which destroyed its
effect. Later the constitutional points were again argued.6
1 J. L . Barnard: Factory legislation in Pennsylvania: Its history and administration, University of
Pennsylvania Publications, Philadelphia, 1907, Ch. IV , pp. 37-50.
2 Pennsylvania Constitution 1873, art. 3, sec. 7.
s Pennsylvania.—Acts of 1887, ch. 121, pp. 180,181. Prior to the passage of this act, a master, in the absence
of special contract, might set off against a claim for wages any claim against the servant which in other
cases would form a proper set-off. L lo y d ’s appeal 95 Pa. 518-521, Oct. 25, 1880; Frable v. Snyder, 3 North­
ham pton Co. R ep . 191, 192, June 9, 1884. Lentz v. Post, 2 Pa. C. C. 481-483, Aug. 2, 1886.
4 Pennsylvania.—Acts of 1891, ch. 71, d . 96.
&
Bauer v. R eynolds, 14 Pa. C. C. R ep. 497, 498, A pr. 23,1894. In the case of Commonwealth v. Marsh, 14
Pa. C. C. R ep. 369-372, Jan. 8, 1894, the constitutionality of the statute was not passed upon. Building a
railroad was held not to be included within the terms of the statute. See also H amilton v. Jutte & Co., 16
Pa. C. C. R ep. 193-195, Feb. 27, 1895; Sally v. B erw ind-W hite Coal Mining Co., 5 Pa. Dist. R ep. 316-318,
Feb. 10, 1896.
6 Commonwealth v. Isenberg & Rowland, 4 Pa. Dist. Ct. R ep. 579-582, A ug. 3, 1895.




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W A G E -P A Y M E N T LEGISLATIO N IN T H E U N IT E D STATES.

The members of the firm of Isenberg & Rowland were indicted for
having violated the act of May 20, 1891. The firm was engaged in
coal mining. There was verbal contract between the firm and its
laborers, but no agreement as to the duration of the employment and
the times of payment of wages. The defendants maintained that
the law was unconstitutional because in conflict with the constitutional
declaration against ex post facto laws; the clauses declaring all men
equally free and independent; and the clauses prohibiting local or
special legislation regulating trade, mining, and manufacturing. The
opinion declared:
It is an attempt to intrude and substitute the judgment of the legislature for the
judgment of the employer and employee in a matter about which they are competent
to agree with each other, which alike reflects upon the intelligence and interferes with
the liberty of both. It is especially unjust to the employer, not only because it pro­
vides how he shall contract in the matter of the time of payment of wages, regardless
of his wishes or material interests, but makes him criminally responsible for failing to
comply with it. It is equally unjust to the employee. While actuated by the best
of motives and with a sincere desire to advance the interests of the wageworker, the
legislature, by this act, interferes with his liberty and practically assumes he is inca­
pable of acquiring property and of taking care of himself.

The line of reasoning is a typical example of all arguments advanced
upon the ground of individual liberty. In view of the attitude taken
by the State courts toward this particular form of legislation, no new
acts were passed until 1913, when a law 1 providing for biweekly pay­
ments by every employer in the State was enacted.
Ohio.—Ohio followed the Massachusetts law in 1887 by providing 2
for the biweekly payment of wages by certain enumerated corpora­
tions to within 10 days of the date of payment. A penalty clause
was added in the following year.3 In 1889 section 2 of the act4 was
amended so far as to give final jurisdiction in cases arising under its
provisions to justices of the peace, mayors, and police judges. Some
minor changes 5 in the working of the statute were made in 1890,
and in 1891 an amendatory act6 extended the operation of the act
“ to every person, firm, or corporation engaged in certain pursuits.”
The Lake Erie Iron Co. was indicted 7 in 1891 for violation of the
act. From the lower courts the State took the case to the supreme
court on error. Attorneys for the company contended that the law
was unconstitutional as contravening the Ohio bill of rights and the
1 Pennsylvania Acts of 1913, ch. 76, p . 114, applies to individuals and corporations; 1915, ch. 95, p. 174;
ch. 107, p. 197; ch. 317, p. 701.
2 Ohio.—Acts of 1887, p. 214.
3 Ohio.—Acts of 1888, p . 251.
4 Ohio.—Acts of 1889, p. 145.
5 Ohio.—A cts of 1890, p. 78.
®Ohio.—Acts of 1891, p. 553.
7 State v. Lake Erie Iron Co., W eekly Law B ulletin (O h io), vol. 33, p p . 6-8, June 19, 1894. See also
W heeling Bridge & Terminal R y . Co. v. Gilmore, 4 O. C. D . 366-372, June 1894, where a statute requiring
employers to pay servants sem im onthly is indirectly held unconstitutional.




PERIOD OF P A Y M E N T OF WAGES.

81

fourteenth amendment to the United States Constitution. It was
also claimed that the power over corporations reserved in the State
constitution did not authorize the legislature to make such regulations
of corporate affairs as were attempted. The supreme court declared
the law unconstitutional by affirming the conclusions of the lower
court without report.
An entirely new law 1 was passed by the legislature in 1913, the
constitutionality of which will probably not be contested, in view
of the recent constitutional amendment.
Missouri.—The Missouri Legislature adopted the principle 2 in
1889 by providing that the employees of the operators of all mines
in the State should be paid regularly in full all wages due them at
least once every 15 days. It was held in a case 3 construing this
law that a miners7 union as an organization could not make a con­
tract for its individual members in respect to work or wages and
that in the absence of a contract between the miner and the employer
as to the time of payment of wages the statute governs. The court
declined to discuss the constitutionality of the law. The provisions
of the law 4 were later extended to include employees of mining
companies of every description, and other changes of a minor char­
acter were made. In 1911 the legislature passed an a ct5 requiring
all corporations doing business in the State to pay their employees
semimonthly. The Missouri Pacific Railway Co. was convicted6
of a violation of this act and appealed. The facts were admitted, the
only defense being that the act, was unconstitutional. The law was
upheld by the unanimous court in a decision through Judge Brown:
After mature consideration we are not able to concur in the views announced by
Prof. Tiedeman. His broad statement of the limitation of police power, followed
to its logical conclusion, would invalidate all laws against usury and legalize all
contracts which the master might see fit to make with its servants, even though
such contract amounted to peonage. Such a doctrine might be sound law in Mexico,
but it has no proper place in the jurisprudence of a State whose citizens are free both
in name and fact.
That both laborers and those from whom they purchase their supplies will be bene­
fited by such laborers receiving their wages semimonthly instead of monthly, as here­
tofore, is too self-evident a proposition to deserve serious thought.
1 Ohio.—Acts of 1913, p. 154. See Opinions of A ttorney General, 1913, vol. 1, pp . 58-60; 1913, vol. 1,
pp. 848-852; 1913, vol. 2, p p. 1368-1371 and pp . 1537-1538; see McGuigan v. Brown A utom atic Hose Coup­
ling Co., 17 O. N . P. (N . S.) 188-190, March, 1915.
2 Missouri.—R evised Statutes, 1889, vol. 2, sec. 7059, p. 1646; Acts of 1891, p. 183.
3 Burnetta v. Marceline Coal Co., 180 Mo., 241-252, Mar. 1, 1904. See also McCarty v. O’ Bryan, 137 Mo.,
584-591, Feb. 9, 1897.
4 Missouri.—Acts of 1899, pp. 305, 306; 1901, p. 199, manufacturing; 1903, p. 246, mines.
5 Missouri.—Acts of 1911, pp . 150,151.
6 State v. Missouri Pacific Railway Co., 242 Mo., 339-380, May 7, 1912.

105598°— 18— Bull. 229------ 6




82

W A G E -P A Y M E N T LEG ISLATION IN

T H E U N IT E D STATES.

Concerning the point of unfair discrimination because the law ap­
plied only to corporations the court said:
Persons performing labor for individuals usually maintain some degree of personal
acquaintance with their employers and know their business ability and reputation
for paying their debts * * * With corporations the situation is different. Their
employees frequently do not know who the shareholders are. * * * In working
for corporations the laborer has nothing but the corporate property to look to for his
wages; and if its property be mortgaged and the corporation fails or is placed in the
hands of a receiver he often loses his wages or is forced to wait for them indefinitely.
Whether the Legislature of Missouri has reserved the power to amend charters of
corporations is a point which we do not deem necessary to decide in this case. We can
safely uphold the constitutionality of the semimonthly payment law under the general
police power of the State. * * * If the act in question really amended the
charter or abridged the defendant’s rights in such manner as to unnecessarily and
materially diminish its power to profitably operate its railroad in Missouri, the issue
would be different. There is no logical reason for contending that when a corpora­
tion is admitted into a State or is chartered by a State an implied contract arises
between that corporation and the State that no subsequent legislature shall ever
pass any act which in any manner affects the business of such corporation. A great
deal of law has been written on the subject of amending charters of corporations;
but we are of the opinion that neither corporations nor citizens of the State have
any vested right in its statutes. Their property rights acquired under its statutes
or under the Constitution may not be taken away by an amendment or a new statute;
but when the general welfare of a State demands a new law, and one is enacted which
operates prospectively, no citizen, natural or artificial, will be heard to complain.
By common consent in all civilized communities, an implied duty rests upon the
State to aid those unfortunates who through sickness, old age, extreme poverty, or
other mischance, are unable to supply themselves with those things which are neces­
sary for their continued existence; and consequently any law which encourages
people to work by holding out assurances that they shall promptly receive the wages
they may earn, whether financially able to go to law or not, tends to encourage
honest effort * * * and will have a direct interest * * * in its (the State)
good order, morals, and general welfare.

The court refused to accept the reasoning of Godcharles v. Wigeman; 1 Johnson v. Goodyear Mining Co.; 2 Republic Iron & Steel
Co. v. State; 3 and Toledo, etc., Railway Co. v. Long; 4 stating that:
According to the logic of those cases * * * constitutions were intended to
serve as chains or shackles upon the people of the State, to prevent them from enact­
ing such laws as will abridge the right of the cunning or powerful to oppress the weak.5

New York.—As we have seen (p. 71), the New York Legislature
passed an a c t6 in 1890 providing for the weekly payment of wages
to the employees of all corporations, except steam surface railroads.
This law7 was amended in 1893 but it still did not apply to steam
1 113 Pennsylvania State, 431. See pp. 104,105.
2 127 California 4.
3 160 Indiana 379.
4 169 Indiana 316.
5 State v. Missouri Pacific Railw ay Co. 242 Mo. 361.
6 New Y ork.—Acts of 1890, ch. 388, p. 741.
7 New Y ork.—Acts of 1893, vol. 2, ch. 717, p p. 1783-1785.
every tw o weeks is a substantial com pliance with the law.




Paym ent in full b y railroad com pany once
Report attorney general, 1894, p. 380.

PERIOD OF P A Y M E N T OF WAGES.

83

surface railroads. In 1895 by an amendment 1 these roads were
compelled to pay on the 20th of each month the wages duo the
employees during the preceding calendar month. Any discrimina­
tion up to 1895 therefore was in favor of the steam surface railroads.
The law had not been attacked in the courts.
But in 1908 a statute 2 was passed providing that all corporations,
except steam surface railroads, should pay weekly the wages due
their employees, and the steam surface railroads should pay twice
a month. The first case 3 under the law was that of New York
Central & Hudson River II. R. Co. v. Williams. The railroad com­
pany claimed that the law interfered with its right of contract, which
is property, and therefore protected by the State constitution and
the fourteenth amendment; because it restricted the freedom of
contract of the employee and because it discriminated between
corporations and individuals without reason, thus constituting
class legislation.
Judge Betts, for the court, sustained the validity of the law upon
the ground that the legislature had power to amend corporation
charters:
* * * The judicial decisions concerning those statutes in those various States
and kindred labor statutes are in hopeless conflict. No good purpose could be served
by attempting to reconcile them. From an examination of these decisions and those
statutes it is apparent that the Legislature of the State of New York had access to and
would be presumed to have knowledge of the facts of the progressive legislation that
was being enacted in various places for what may be, perhaps, termed the better assur­
ance, to the employees of corporations that their wages would be frequently, regularly,
and promptly paid. * * * Many of the employees of this corporation receive small
wages. They must deal for the wants of themselves and their families with small
retail storekeepers, and buy in small quantities, hence the possession of cash will be
of great advantage to them in obtaining the necessaries of life and such luxuries as the
extent of their wages and the number of those dependent thereon will permit. * * *
It is for the interest of the State, of course, to see that its citizens are prosperous,
healthy, and comfortable, and if the legislature after proper inquiry, thinks that the
physical welfare of a large number of the citizens of this State would be promoted by a
more frequent payment of the employees of steam surface railroad corporations, it is
difficult to see why the courts should interfere with such a disposition. In many
States such legislation has been upheld as a valid exercise of the police power.

The holdings in this decision were approved upon appeal to the
court of appeals.4 The opinion of the court by Justice Bartlett con­
cluded as follows:
* * * There is an irreconcilable conflict in the decisions in different jurisdic­
tions as to the constitutional validity of labor legislation fixing the medium and time
1 New Y ork.—Acts of 1895, vol. 1, ch. 791, p p . 555-557; consolidated in 1897, vol. 1, ch. 415, p . 464. P ay­
ment of mine operatives b y railway com pany must be in accordance with this provision. R eport
attorney general, 1906, p. 448. See also report attorney general, 1900, p. 153.
2 New Y ork.—Acts of 1908, vol. 2, ch. 442, p. 1246; consolidated 1909, vol. 3, ch. 31, p p . 2043-2044; amended
1909, Laws of N ew Y ork, vol. 1, chs. 205, 206, pp. 322, 323.
3 New Y ork Central & H . R . R . Co. v. W illiams, State labor commissioner, 118 N . Y . Supp. 785-795,
June, 1909.
4 N. Y . Central & H. R . R . Co. v. Williams, 199 N. Y . 108-127, June 14, 1910.




84

W A G E -P A Y M E N T LEGISLATION IN T H E U N IT E D STATES.

of payment of the wages of those who work for corporations. I find no difficulty in
sustaining our New York statute on the ground which has been stated. It does not
confiscate property directly or indirectly. It does impose a greater future burden
upon the corporations to which it relates; but that, I think, is within the power of the
legislature to the extent to which it has been exercised in this case.

The Erie Railroad Co. brought suit against John Williams as com­
missioner of labor to restrain him from instituting actions to recover
penalties for noncompliance with the provisions of the act; the object
being to test the constitutionality of the law. The complaint was
dismissed by the special term of the supreme court and this decision
was successively affirmed by the appelate division 1 and by the New
York Supreme Court.2 The decision was again affirmed and the con­
stitutionality of the law sustained in an appeal3 to the Supreme
Court of the United States. The company contended that the law
was repugnant to the fourteenth amendment, “ in that it deprives the
company of property and specifically deprives the company, and
those of its employees to whom it applies, of liberty, without due
process of law” ; that it acquired by its charter a vested right to deal
with its employees according to its own judgment; that the cost of
paying twice a month is a direct burden on interstate commerce; and
that the statute violates the fourteenth amendment, “ in that it denies
to the employees of the Erie Railroad Co. the equal protection of the
laws.”
Mr. Justice McKenna said in part:
y
* * * But liberty of making contracts is subject to conditions in the interests of
the public welfare, and which shall prevail—principal or condition—can not be de­
fined by any precise and universal formula.
* * * It is hardly necessary to say that cost and inconvenience (different words,
probably, for the same thing) would have to be very great before they could become
an element in the consideration of the right of a State to exert its reserved power or its
police power.
* * * But, as we have said, employees are not complaining, and whatever rights
those excluded may have, plaintiff can not invoke.

An a c t4 passed by the legislature in 1910 provided that the salaries
of officers of the State and the wages of State employees should be
paid by the State twice each month.
Iowa\5
—Iowa was the next State to legislate on this subject. A
law 6 was passed in 1894 forcing any individual or corporation em­
ploying two or more men in mining to pay wages in money upon de­
mand semimonthly. The first payment was to be made not later
than the first Saturday after the 20th of each month and the second
1 Erie Railroad Co. v. W illiams, State labor commissioner, 136 A p p. D iv. 902, December, 1909.
199 N . Y . 525, June 14,1910.
3 Erie Railroad Co. v. W illiams, 34 Sup. Ct. R ep. 761-767, May 25,1914.
4 New Y ork.—A cts o f 1909, vol. 1, ch. 58, p. 20, amended 1910, vol. l,c h . 317, p. 563.
5 E. H. D ow ney: H istory of Labor Legislation in Iowa. State Historical Society, Iowa City, 1910.
e Iowa.—A cts of 1894, ch. 98, pp. 95-96.

2 Erie Railroad Co. v. W illiams,




PERIOD OF P A Y M E N T OF W AGES.

85

payment, for the wages earned after the 15th of each month, not
later than the first Saturday after the 5th of the succeeding month.
A penalty of $1 a day for each day after failure to pay is added to the
sum due, up to the amount of the wage debt. This act has been in
the courts of the State but once, and then in a case 1 not testing the
constitutionality. A later a c t 2 makes it incumbent upon railroad
corporations to pay employees semimonthly.
Maryland.—The Maryland Legislature passed a law 3 in 1896 that
coal mining and shipping corporations in Allegany County should
pay semimonthly. In 1902 a similar law 4 applying to all corpora­
tions in the State was passed, and slightly amended 5 in 1904. Dur­
ing the same session, an a c t6 was passed making the provisions of the
earlier law applicable to all employers engaged in mining coal or fire
clay in Garrett County. By a later statute 7 it was provided that if
an earlier day than the statutory one was used as pay day, at least
three days' notice of the fact should be given.
In a case 8 under this statute, the court of appeals declared it un­
constitutional as discriminatory. The court followed the ruling in
the Luman v. Hitchens case.
Kentucky.—Section 244 of the Kentucky constitution9 provides
that “ all wage earners in this State employed in factories, mines,
workshops, or by corporations, shall be paid for their labor in lawful
money.” Under this provision the Kentucky Legislature passed a
law 1 in 1898, requiring all persons, associations, companies, and
0
corporations employing the services of ten or more persons in the
mining industry to pay their employees in money on or before the
16th of each month the wages due for the previous month.
This act became a law at the expiration of 10 days without the
governor’s approval. On March 21, 1902, section 1 of this act was
repealed and a new section1 incorporated which applied to the same
1
parties and industries as the original section, but provided for the
payment, on or before the 15th and 30th of each month to within
15 days of each date of payment.
The Reinecke Coal Mining Co. was charged1 with violating the
2
act of 1902. In the court of appeals the company contended that
1 Mitchell v. Burwell, 110 Iowa, 10-15, Dec. 15.1899.
2 Iowa.—Code, section 2110-bl (added 1915).
3 Maryland.—A cts of 1896, ch. 133, pp. 212,213.
4 Maryland.—A cts of 1902, ch. 589, pp. 846,847.
6 M aryland—A cts of 1904, ch. 93, pp. 167,168.
e Maryland.—A cts of 1904, ch. 37, pp. 59,60.
7 Maryland.—A cts of 1910, ch. 211, pp. 876,877.
s State v. Potom ac V alley Coal Co., 116 Md. 380-402, June 24, 1911.
9 Kentucky Constitution 1891, sec. 244.
10 K entucky.—Acts of 1898, ch. 15, p p. 59,60.
1 K entucky.—Acts of 1902, ch. 60, pp. 125-126; 1916, ch. 21, pp. 157, 158; new law applies to corporations
1
only.
12 Commonwealth v. Reinecke Coal Mining Co., 117 K y . 885-894, Mar. 16,1904; Commonwealth v. Hillside
Coal Co., 109 K y . 47-51, Sept. 27,1900.




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W A G E -P A Y M E N T LEG ISLATION IN

T H E U N IT E D STATES.

the statute was unconstitutional as class legislation, special legisla­
tion and not a just exercise of the police power. The court through
Judge Settle said in part:
We can find no ground for the appellee’s contention that an enforcement of the
statute * * * would interfere with vested rights, impair the obligation of con­
tracts, or impose a penalty for the nonpayment of debt. It is a well established
principle in this State that, so long as the legislature does not pass the limits fixed by
the constitution, the courts have no authority to interfere on the ground that the act
in question violates the natural principles of justice and right. * * * The sub­
jects for the exercise of the police power are, first, preservation of the public health;
second, preservation of the public morals; third, regulation of business enterprises;
fourth, regulation of civil rights of individuals; and, fifth, the general welfare and
safety of the citizens. All business must be subject to reasonable regulations, and as
the legislature in enacting the statute under consideration seems to have kept within
the purview of section 244 of the constitution, we are constrained to hold that the
statute in all of its parts is valid.

Colorado.—In reply to a question of the legislature as to a bill
requiring corporations to pay their employees semimonthly in lawful
money and prohibiting contracts in violation of the law, the State
supreme court1 declared that such a law would involve private
rights but would not pass upon the constitutionality of such a pro­
posed act. Following receipt of this opinion the legislature passed
an a ct2 making it apply to all corporations except railroads. This
law has not been before the court.
Arkansas.—The Arkansas Legislature adopted the principle of
biweekly payments to employees in an a ct3 passed in its session of
1909. The statute directed that all corporations doing business in
the State should pay their employees twice each month subject to
penalty.
The Arkansas Stave Co. was convicted in the circuit court of
Craighead County and appealed. The constitutionality of the
statute was challenged on the ground that it deprived the defendant
of liberty and property without due process of law, and denied the
equal protection of the law. The State supreme court4 on February
14, 1910, upheld the statute under the power of the legislature to
regulate the acts of corporations due to the reserved power of the
State to amend charters granted:
*
* * Tkg piain purpose of this act now in question was to secure a frequent
payment of wages earned by the employees. These corporations represent aggrega­
tions of capital, and the employees are the laborers who are dependent on their wages
for their livelihood. The inconvenience to the corporation to pay the wages semi­
monthly could not be as great as it would be to those whose actual necessities require
the frequent payments not to receive such payments. The corporation has already
1 In re Senate B ill N o. 27, 28 Colo. 359-361, January term, 1901.
2 Colorado.—Acts of 1901, ch. 55, pp . 128-130.
3 Arkansas.—Acts of 1909, ch. 13, pp. 21j22.
4 Arkansas Stave Co. v. State, 94 A rk. 27-39, Feb. 14, 1910. See also Biggs v. St. L. I. M. & S. R . Co.,
91 A rk. 122-128, June 21, 1909.




PERIOD OF P A Y M E N T OF WAGES.

87

received the full value for which it is required to pay; and this requirement to pay
semimonthly the wages of its employees already earned could not substantially impair
or destroy the object or purpose of its incorporation. If the legislature in its wisdom
thought that by the more frequent payment of the wages to the laborers better service
would be secured for the corporations and the objects of their creation thus advanced,
it would be reasonable and just to require such frequent payments. This could not
be considered oppressive or wrong. We can not say that this act is an unreasonable
exercise of the power of the legislature. We only pass upon the power of the legisla­
tive body of the government; of the wisdom, propriety and policy of such act, under
our system of government, the legislature must solely judge.

Tennessee.—A law 1 was passed in 1913 by the Legislature of
Tennessee that all corporations doing business within the State who
employed any salesmen, mechanics, laborers, and who operated a
commissary supply store in connection with their business, should
pay the wages, balance then due such employee, in lawful money
semimonthly on the 15th and 30th of each month, after deductions
for advances had been made.
The Prudential Coal Co. was indicted for a violation of the act.
The company filed a demurrer to the indictment, which was sustained
i Tennessee.—Acts of 1913 (1st session), ch. 29, p p. 493, 494.
Similar legislation will be found i n Virginia.—Acts of 1887, ch. 391, p. 497; 1887-8, ch. 118, p. 497; 1912, ch. 106, pp. 188-190; applied to all busi­
ness except mining coal, manufacturing coke, mining ore, or other minerals, excelsior mills or sawmills in
which m onthly p a y day shall prevail.
West Virginia.—Acts of 1887, ch. 63, p p . 192-194, provided for the biw eekly paym ent of wages b y ind i.
viduals and corporations engaged in mining and manufacturing.
W isconsin.—Acts of 1889, ch. 474, p p. 670,671; 1901, ch. 47, pp. 56,57; 1907, ch. 118, p. 794; passed a law in
1889 which provided for w eekly or biw eekly paym ents of all wages for labor or service in the absence of
written contracts to the contrary. A cts of 1915, ch. 114, p . 107, makes the law apply to corporations only.
W yom ing.—Acts of 1890-91, ch. 82,p . 356; 1903, ch. 64,p p. 71,72; passed such a law applying on ly to those
engaged in mining.
New Jersey.—Acts of 1896, ch. 179, p p . 262,263; 1899, ch. 38, pp. 69,70; 1904, ch. 195, p . 354; 1911, ch. 88, p.
127; ch. 371, pp. 767, 768; 1913, ch. 66, p. 103; ch. 268, p. 508; applied to enumerated em ployers of labor.
Acts of 1914, ch. 10, p. 23, all cou nty employees in counties of the second-class must be paid semim onthly.
Arizona.—Revised Statutes, 1901, Penal Code, par. 615. Am ended 1912 (ex. sess.) ch. 10, p. 14, applied to
State and its subdivisions, individuals, and corporations.
Hawaii.—Acts of 1903, ch. 36, p. 212, related to all employees engaged in constructing or repairing roads,
bridges or streets, for the Territory of Hawaii.
Oklahoma.—Acts of 1909, ch. 39, art. 4 ,p. 637; 1913, ch. 46, p . 83,84; applied to individuals and corporations
in specified businesses.
Illinois.—A cts of 1913, p. 358, applied to corporations only.
Michigan.—Acts of 1913, ch. 59, p p. 83,84, applied to specified businesses.
New Hampshire.—Acts of 1913, ch. 38, p. 504; applied to all persons in the em ploy of the State.
Mississippi.—Acts of 1914, ch. 166, p p. 215,216, amended 1914, ch. 167, p p. 216,217; amended 1916, ch. 241,
p. 351; applied to all employees in manufacturing establishments em ploying fifty or more employees and
to all public service corporations.
South Carolina.—Acts of 1914, ch. 399, pp. 699,700, applied to railroad shop employees.
California.—Acts of 1915, ch. 657, pp. 1292,1293, applied to all private em ploym ents and to State and
municipalities.
Kansas.—Acts of 1915, ch. 165, p. 203, applied to all corporations.
Minnesota.—Acts of 1915, ch. 29, p p. 36,37, amended 1915, ch. 37, pp. 57,58, applied to all public service
corporations.
North Carolina.—Acts of 1915, ch. 92, p p . 115,116, applied to railroads only.
Texas.—Acts of 1915, ch. 25, pp. 43,44, applied to specified em ploym ents.




88

W A G E -P A Y M E N T LEGISLATIO N IN T H E U N IT E D STATES.

upon appeal1 to the State supreme court.
the opinion and said in part:

Judge Williams delivered

The question thus raised is ruled, in principle, by the case of State v. Paint Rock
Coal Co. (92 Tenn. 81).
The act of the legislature in question, while not directly authorizing imprisonment
for debt, does attempt to create a crime for the nonpayment of debts * * * and is
therefore clearly within the constitutional inhibition.
Obviously the purpose of the statute in question was to enforce the payment of con­
tract wages, and at stated periods under the penalty prescribed, and it must fall as
unconstitutional.

Such lines of reasoning call up the early case of Godcharles v.
Wigeman and force the conclusion that the type of individualism of
1880 is still present in the legal profession in 1914.
Louisiana.—The Legislature of Louisiana passed a law 2 which
required public service corporations to pay their employees semi­
monthly. The provisions of this law were later 3 extended to include
corporations and individuals. A case 4 under this act came before
the State supreme court to test its constitutionality. The court held
the act constitutional, stating that whatever legislation was called
for by the public welfare was within the scope of the legislative power
and that whether such welfare called for particular legislation was a
question primarily for the legislature and that the courts could only
override its decision when, after allowance had been made, no suffi­
cient basis therefor could be found.
M ONTHLY PAYM EN TS.

Monthly payment of wages for the majority of workmen means
a system of store credits which makes commercial independence
impossible. It means either that the employees do not appreciate
the advantages of the cash system or that they have not had the
chance to get far enough ahead to avail themselves of those advan­
tages. It means that the manufacturer can avoid the expense and
trouble of frequent cash payments and can profit for a longer time
through the use of the unpaid wages of his employee.
Capital has no right to make forced loans upon labor. The work­
ingman does not wait four weeks before turning over the product of
his labor to his employer; he does not wait one week; he turns it
over every day, and it is unjust to require him to wait four and some­
times six and seven weeks for his share of the wealth he produces.
To make him wait is to make him pay credit prices instead of cash
prices. In this way it unjustly increases his cost of living. Yet in
some of our States, even the standard of monthly payment which the
1 State v. Prudential Coal Co., 130 Tenn. 275, Oct. 31,1914.
2 Louisiana.—A cts of 1912, ch. 27, p . 36.
3 Louisiana.—Acts of 1914, ch. 25, p. 80; 1916, ch. 108, p . 231.
4 State v. Cullom, 138 La. 395, N ov. 15,1915. See also State v. McCarroll, 138 La. 454, Dec. 13,1915.




PERIOD OF P A Y M E N T OF W AGES.

89

State legislatures liave attempted to establish by law have been held
to contravene the constitutions.
Indiana.—The Indiana Legislature passed a law 1in 1885 by which
every company, corporation, or association was required, in the ab­
sence of a written contract to the contrary, to make full settlement
with its employees engaged in manual or mechanical labor at least
once in every calendar month.
The statute was brought into the Supreme Court of Indiana 2 on
constitutional grounds in 1907. Charles Long secured judgment for
wages, penalties, and attorney’s fees against the Toledo, St. Louis &
Western Railroad Co. The company contended that the act vio­
lated the Federal Constitution. The court upheld the contention
through Chief Justice Monks, who declared that the ulaw imposed
new burdens on every company, corporation, and association doing
business in the State, while an individual engaged in like business
under like circumstances and conditions is left without any such
burden.”
Colorado.—During the session of the Colorado Legislature in 1895
the supreme court3 was asked to give an opinion as to the constitu­
tionality of a proposed law providing for the monthly payment of
wages. The court refused upon a technicality to render an opinion
on the subject. Judging from its opinion on the proposed eight-hour
law,4 it seems that its opinion, if rendered, would have been adverse.
California.—The California Legislature passed an a c t 5 in 1891,
making it mandatory upon every corporation to pay mechanics and
laborers employed by them the wages due them weekly or monthly on
a day in each week or month selected by the corporation. A viola­
tion of the act entitled the mechanic or laborer to a lien on all the
property of the corporation employing him for the amount of his
wages, and in an action to recover the amount of such wages the
laborer was entitled to a reasonable attorney’s fee and an attachment
against the property. Upon an appeal from the superior court of
Lassen County the California supreme court construed the act of
1891 in two cases against the same company. In the first case,6 the
court held that a complaint in an action to establish a lien under sec­
tion 2 of the act must show that the wages for which the lien was
1 Indiana.—A cts of 1885, ch. 21, p p . 36, 37. This statute was up for construction in the following cases
before it was tested on constitutional grounds. Terre Haute & Indianapolis R . R . Co. v. Baker,4 Ind. A pp.
66-68, Mar. 2, 1892; Baltimore & Ohio S. W . R . R . Co. v. Manning, 16 Ind. A p p . 408-410, D ec. 2,1896;
Chicago & South Eastern R y . Co. v. Glover, 159 Ind. 166-170, N ov. 26,1901; Toledo, St. Louis, etc. R . R .
Co. v. Long, 160 Ind. 564, 565, May 15,1903; Baltim ore & Ohio S. W . R . R . Co. v. H ollenbeck, 161 Ind. 452457, N ov . 24 1903; Baltim ore & Ohio S. W . R . R . Co. v. Harm on, 161 In d . 358, 359, Oct. 29, 1903.
2 Toledo, St. Louis & W estern Railroad Co. v Long, 169 Ind. 316-318, N ov. 26, 1907. The law is also con­
strued in Smith v. Ohio Oil Co., 43 Ind . A p p . 735, 736, Jan. 26, 1909.
3 In re House B ill N o. 107, 21 Colo. 32-34, Mar. 1,1895.
* In re Eight-Hour Law, 21 Colo. 29-32, January term , 1895.
« California A ct of 1891, ch. 146, p . 195.
6 Keener v. Eagle Lake Land & Irrigation C o., 110 Cal. 627-632, Dec. 31, 1895. Follow ed in A ckley
v. Black H aw k Gravel Mining Co., 112 Cal. 42-45, Mar. 24, 1896.




90

W A G E -P A Y M E N T LEGISLATIO N IN

T H E U N IT E D STATES.

sought to be enforced were payable weekly or monthly. Upon the
authority of this case the court upheld in the second one1a judgment
in favor of the plaintiff for the sum of $526.25 and costs of the suit,
but reversed that portion of the judgment awarding counsel’s fees.
The plaintiff was declared entitled to a lien upon the property of the
defendant and a sale of the property was directed.
Two years later the law was objected to as discriminatory. The
supreme court2held that the act of 1891, giving liens on the property
of corporations for the wages of only such mechanics and laborers as
might be employed by the week or month, was repugnant to the
State constitution prohibiting special legislation.
In the meantime, the legislature passed another act,3 requiring all
corporations doing business in the State to pay their employees at
least once a month the wages earned during the preceding month
and providing that the violation of the requirement should entitle
an employee to a preferred lien, and attorney’s fee for his wages, on
the property of the corporation. Assignments of wages were pro­
hibited.
In 1899 an action 4 was brought by Skinner to recover from the
Garnett Gold Mining Co., a corporation, for labor performed and on
assigned claims for labor performed by others. The case was trans­
ferred to the United States Circuit Court for the Northern District
of California on the ground that the defendant was a foreign corpora­
tion, having been organized under the laws of West Virginia. The
defendant alleged that the act was unconstitutional, and, while admit­
ting that it owed the amount for which the suit was brought, claimed
that an agreement was entered into between Skinner and his assign­
ors and the defendant to wait a certain time for all wages earned
prior to a certain date, and that under that agreement the action
was prematurely brought.
Circuit Judge Morrow confined his opinion strictly to a considera­
tion of the constitutional points involved. He held that the act did
not discriminate unjustly against the corporations; that it did not
deny to corporations due process and equal protection of laws; nor
interfere with the freedom of contract.
Later in the same year this statute came before the State supreme
court again in an action brought by Andrew Johnson against the
Goodyear Mining Co. to recover for labor performed for the company
by him and by others whose claims had been assigned to him. In
the superior court of Sierra County a judgment w as rendered for the
T
plaintiff in the sum of $5,039.57, and $400 attorney’s fees. The de­
fendant company appealed the case to the State supreme court and
1 Riggs v. Eagle Lake Land & Irrigation Co., 110 Cal. 627-632, Dec. 31, 1895.
2 Slocum v. Bear V alley Irrigation Co., 122 Cal. 555-557, Dec. 5, 1898.
3 California.—Acts of 1897, ch. 170, pp . 231, 232.
4 Skinner v. Garnett Gold Mining Co., 96 Fed. 735-747, Sept. 6, 1899.




N ot reported.
m

PERIOD OF P A Y M E N T OF W AGES.

91

a commissioner's decision was rendered reversing the decision of the
lower court in part and declaring the act to be unconstitutional.
The opinion of Commissioner Cooper, concurred in by Commission­
ers Haynes and Chipman, was approved by the court. A typical
course of individualistic reasoning is exhibited in the opinion:1
* * * If the legislature could deprive the corporation of some of the defenses
which other litigants on like terms are allowed it could, by a Draconian edict, deprive
it of all of them and say at once that the corporation should make no defense what­
ever to the action. The corporation and the laborer are prohibited from making any
contract whereby wages are to become due for a longer period than one month as a
condition of employment, or by which the laborer is to be paid in anything except
money or negotiable checks. The workingman of intelligence is treated as an imbe­
cile. Being over 21 years of age, and not a lunatic or insane, he is deprived of the
right to make a contract as to the time when his wages shall become due. Being of
sound mind, and knowing the value of a horse, he is not allowed to make an agreement
with the corporation that he will work sixty days and take the horse in payment.
Business might be such that a corporation could not possibly pay wages without
getting laborers who were willing to wait for their wages until the corporation could
get money with which to pay them by marketing its products. The laborer might
be interested in the corporation, or for some reason willing to wait until the corpora­
tion could pay him.

A new a c t2 passed in 1911 provided that all employers should pay
their employees at least once in each month. In an application for a
writ of habeas corpus directed to the chief of police of the city of San
Francisco, Crane sought to be released from custody. Crane had
been arrested on warrant for the violation of the act of 1911. The
first appellate district3 of the supreme court ordered the writ to issue
on the ground that the act was unconstitutional in that it in effect
permitted an imprisonment for debt.
Mississippi.—An a c t 4 passed by the Mississippi Legislature
required every individual, company, corporation, or association
engaged in manufacturing to pay its employees in full at least
1 Johnson v. Goodyear Mining Co. 127 Cal. 4-21, N ov. 20, 1899.
2 California.—Acts of 1911, ch. 633, p p. 1268,1269.
3 In re Crane, 26 Cal. A p p. 22-26, N ov. 23,1914.
In addition to laws requiring m onthly paym ent of wages b y corporations generally, there are a num ber
of States which apply such laws to individuals as well. Since there are no cases of importance involving
the constitutionality of these laws, it w ill suffice to indicate the legislation as briefly as possible.
Missouri.—A cts of 1877, pp . 348,349, amended 1895, p. 101, corporations; 1903, p. 220, railroads; 1909, p. 366.
In Shull v. Missouri Pac. R . R . Co., 221 Mo. 140-149, May 31, 1909, the constitutional question was not
expressly passed upon bu t the court treated this statute as unconstitutional.
Maryland.—Acts of 1878, ch. 320, p p . 498, 499, individuals engaged in mining and manufacturing; 1902,
ch. 589, p p . 846, 847, specified corporations.
Virginia.—Acts of 1887 (ex. sess.), ch. 391, p p. 497, 498, amended 1888, ch. 118, p . 131; amended 1912, ch.
106, p p. 188-190, individuals and corporations.
Connecticuit.—Acts of 1887, ch. 67, p p. 696, 697, corporations.
New Y ork.—A cts of 1890, ch. 388, p . 741, specified corporations; amended b y 1893, vol. 2, ch. 717, pp.
1783-1785; 1895, vol. 1, ch. 791, p p . 555-557; 1897, vol. 1, ch. 415, p. 464; 1908, vol. 2, ch. 442, p. 1246; 1909,
ch. 36, p . 2043; consolidated labor law amended 1909, ch. 206, p p. 322, 323.
Tennessee.—Acts of 1891 (ex. sess), ch. 5, p p. 18, 19, individuals and corporations.
Kentucky.—Acts of 1898, ch. 15, p p . 59, 60; 1902, ch. 60, p p . 125, 126, mining.
Verm ont.—Acts of 1902, ch. 158, pp. 175, 176, individuals and corporations.
* Mississippi.—A cts of 1912, ch. 141, p. 146.




92

W A G E -P A Y M E N T LEG ISLATION IN

T H E U N IT E D STATES.

once in every calendar month of the year and permitted the employee
a reasonable attorney’s fee for the prosecution of a suit against his
employer in the event of failure or refusal to comply with the terms
of the act.
In an appeal from a circuit court the State supreme court held 1
the act to be unconstitutional on the ground that it imposed an extra
burden (the penalty of an attorney’s fee) upon manufacturers only
and that the attempted classification was without any reasonable
and proper basis for classification.
SUMMARY.

The provisions of the laws regulating the period of wage payment
are fairly uniform, but the decisions of the courts rest on such various
grounds that no generalization can be made as to the degree of
regulation which will be allowed. Peculiar constitutional provi­
sions often blur what would be the holding of the court if a case
were brought before it involving only the freedom of contract.
The courts which sustain the laws do so uniformly by justifying
them under the police power. Where the laws are declared void
the objections are on broad theoretical grounds which do not allow
of distinctions due to the changed facts of industry. For the same
reason no distinctions are made in some courts between laws requir­
ing monthly payment and those stipulating for a shorter term.
Some courts recognize the right of the legislature to regulate the
period of wage payment for corporations but not for natural per­
sons. The following table shows the variety of legal standards as
to the right to regulate the period of wage payment:
D E C ISIO N S ON P E R IO D O F W A G E -P A Y M E N T L E G IS L A T IO N .
Date.
Title of case.

Month
Year. and day.
1890 Jan. 7
1890 Oct. term
1890 Oct. 8
1893
1894
1894
1895
1895
1895

Oct. 3
Oct. 26
Apr. 23
June 19
Mar. 1
May 6
Aug. 3

1895 Dec. 31
1896 Mar. 24
1898 Jan. 8
1898 Dec. 5
1899 Sept. 6
1899 N ov. 20
1899 Dec. 15
1901 Jan. term
1902 N ov. 25

Hancock et al. v. Y a d en ....................
People v. City of Buffalo....................
People ex rel. V an Valkenberg v.
Meyers.
State v. Brown-Sharpe Mfg. C o........
Braceville Coal Co. v. People.............
Bauer v. R eynolds...............................
State v. Lake Erie Iron Co.................
In re House B ill No. 107....................
In re House Bill No. 1230...................
Commonwealth v. Isenberg and
Rowland.
Keener v. Eagle Lake Irr. Co............
A ckley v. Black Hawk Gravel C o ...
Commonwealth v. D unn....................
Slocum v. Bear Valley Irr. Co...........
Skinner v. Garnett Gold Min. Co___
Johnson v. Goodyear Min. Co...........
Mitchell v. B urw ell.............................
In re Senate Bill No. 27......................
Inter. Text Book Co. v. Weissinger..




State.

Period.

Decision.

Indiana............... B iw e e k ly . Constitutional.
New Y o r k .......... W e e k lv ... Construction.
Do.
........d o ................... . . . d o . . : ___
R hode Island . . .
Illinois.................
Penn sylvania...
O h io.....................
Colorado.............
Massachusetts...
Penn sylvania...

. . . d o ...........
.. .d o ...........
Biweekly .
d o ...........
M o n th ly ..
W e e k ly ...
Biweekly .

Constitutional.
U nconstitutional.
Do.
Do.

California............
.d o ..................
Massachusetts...
California............
........do...................
........d o...................
Iow a .....................
Colorado..............
Indiana...............

M onthly. .
. ..d o ...........
W eekly - ..
M on th ly. .
. ..d o ...........
.. .d o ....... .
B iw e e k ly .
d o ...........
W e e k ly ...

Construction.
Do.
Constitutional.
Unconstitutional.
Constitutional.
U n constituti onal.
Construction.
Do.
Constitutional.

J Sorenson v. W ebb, 71 So. 273, 274, Mar. 27,1916.

Constitutional.
U nconstitutional.

93

PEBIOD OF P A Y M E N T OF W AGES.
DECISIONS OF PERIOD OF WAGE-PAYMENT LEGISLATION—Concluded.
Date.
Title of case.

State.

Subject.

Decision.

Month
Year. and day.
1903
1904
1904
1906
1907
1907
1910
1910

A pr.
Mar.
Mar.
May
N ov.
N ov.
Feb.
June

8
1
16
29
16
26
14
14

1911
1912
1914
1914
1914
1915

June
May
May
Oct.
N ov.
July

24
7
25
31
23
9

1915
1915
1916

N ov. 15
Dec. 14
Mar. 27

R epublic Iron & Steel Co. v. S ta te..
Burnetta v. Marceline Coal C o........ .
Commonwealth v. R einicke............. .
Seeleyville Coal Co. v. M cG losson...
Lawrence v. R utland R . R . C o ........
T ., St. L. & W . R . R . Co. v. L on g ..
Arkansas Stave Co. v. State..............
N. Y . C. & H. R . R . R . Co. v. W il­
liams.
State v. Potom ac Valley Coal Co___
State v. Mo. Pac. R y . Co....................
Erie R . R . Co. v. W illiams................
State v. Prudential Coal C o...............
In re Crane............................................
State Industrial Com. v. Inter. borough R apid Trans. Co.
State v. Cullom ...................................
Veitkunas v. Morrison.......................
Sorenson v. W e b b ..............................

Indiana___
Missouri___
K en tu cky..
Indiana___
V e rm o n t...
Indiana___
Arkansas...
N ew Y o r k .

W ee k ly ...
B iw e e k ly .
.do.
do.
W e e k ly ...
M on th ly..
B iw e e k ly .
..d o .........

U nconstitutional.
Construction.
Constitutional.
Do.
Do.
Unconstitutional.
Constitutional.
Do.

Maryland. .
Missouri___
New Y o r k ..
Tennessee..
C alifornia..
N ew Y ork .

..d o ..........
..d o ..........
...d o .........
...d o ......... .
M on th ly..
W e e k ly ...

U nconstitutional.
Constitutional.
Do.
Unconstitutional.
Do.
Construction.

Louisiana..
Maine..........
Mississippi.

B iw e e k ly . Constitutional.
Construction.
.. .d o .........
M o n th ly .. Unconstitutional.

Summary: Wages to be paid weekly, 10 cases—5 held constitutional;
constitutional; 3 construction of statute. Wages to be paid biweekly,
held constitutional; 5 held unconstitutional; 4 construction of statute.
paid monthly, 9 cases—1 held constitutional; 5 held unconstitutional;
tion of statute; 1 no decision rendered.




2 held un­
17 cases—8
Wages to be
2 construc­

CHAPTER VI.—MODE OF WAGE PAYMENTS.
THE ENGLISH TRUCK LAWS.

Statutes known as utruck acts” or uscrip acts,” which are Intended
to prohibit the payment of wages in orders on merchandise stores,
not redeemable in money but in commodities, are based upon old
English acts, the earliest of which bears the date of the year 1464.1
The English truck laws were numerous and were applied, as exper­
ience dictated, to one branch of manufacture after another until
they embraced nearly the whole of the industries of England. The
laws established the obligation and produced, or at least fortified,
the uniform custom of paying the whole wage of laborers in the cur­
rent coin of the realm. They were finally collected and consolidated
into one act in 1831, which has been amended on two occasions.2
These statutes were part of a system of legislation which regulated
the relation of master and servant. They especially favored the lat­
ter, who, as an individual, was deemed weaker than his master, and
1 George Howell: H andy book of the Labor Laws, 1895, 3d ed., p. 187. U. S. Department of Labor Bui.
No. 25, Novem ber 1899, pp. 826-832.
George Howell: Labor Legislation, Labor Movements and Labor Leaders, London, 1902, ch. 37, pp.
406-421.
Alexander Redgrave: The Factory, Truck and Shop Acts, London, 12th ed., 1916.
2 1 and 2 W m . IV , ch. 37, 1831. This act repealed all former “ tru ck” acts. Consolidation truck act, 1
and 2 W m . IV , ch. 37, Oct. 15,1831, pp. 225-232. Amended 50 and 51 V iet., ch. 46, Sept. 16,1887, pp. 189194; 59 and 60 V iet. ch. 44, Aug. 14,1896, pp. 360-363. These three acts are collectively know n as the “ Truck
A cts of 1831-1896.”
The acts that were consolidated in 1831 are as follows:
♦4 E dw .. IV , ch. 1, 1464, pp. 364-373.
8 Eliz., ch. 7,1565, pp. 238-240.
14 Eliz., ch. 12,1572, pp. 306, 307.
1 Anne, ch. 18,1701, pp. 444-448.
9 Anne, ch. 30,1710, p. 278.
10 Anne, ch. 16,1711, pp. 309-313.
1 Geo. I, ch. 15,1714, pp. 206-213.
12 Geo. I, ch. 34,1725, pp. 361-365.
13 Geo. I, ch. 23, 1726, pp. 402-408.
13 Geo. II, ch. 8, 1740, p p. 373-380.
22 Geo. II, ch. 27,1749, pp. 306-319.
29 Geo. II, ch. 33, 1756, p p. 478-480.
30 Geo. II, ch. 12, 1757, pp. 38, 39.
17 Geo. I l l , ch. 56,1777, pp. 454-470.
19 Geo. I l l , ch. 49,1779, pp. 273, 274.
57 Geo. I l l , ch. 115,1817, pp. 444, 445; ch. 122, 1817, pp. 457, 458.
58 Geo. I l l , ch. 51,1818, pp. 174-179.
Other English acts are: Wages not to be paid in spirits, 55 Geo. I l l , ch. 19, Mar. 23,1815, pp. 64,65; wages
to be paid b y county contractor in m oney, 9-10 V iet., ch. 2, Mar. 5, 1846, pp. 11-24; Hosiery Manufacture
(Wages) A ct, 37 and 38 V iet., ch. 48, July 1874, pp. 272, 273; Coal Mine Regulation A ct, 50-51 V iet., ch. 58,
sec. 4, September 1887, p. 269.
See Archer v. James, 2 Best & S. (E xch . Ch.) 61, 1859, Byles, J.
See Chitty’s English Statutes, London, 1912, 6th ed., vol. 8, pp. 728-853.
C. B. Labatt: The Law of Master and Servant, Rochester, N . Y ., 1913 (2d ed.), vol. 2, pp. 2230-2270;
vol. 8, pp. 8697, 8715-8800.

94




MODE OF WAGE P A Y M E N T S .

95

therefore liable to oppression. On the other hand, there existed
regulations in favor of the master and against the workmen collec­
tively, who, in the aggregate and acting in combination, were deemed
stronger than their masters and likely to oppress not only the em­
ployer but individuals of their own body. These were the laws
against combinations and strikes. They have been swept away
except in certain aggravated cases, but the truck act still remains.
The principles of this act have been copied widely by the legislatures
of the American States. Similar statutes are found in the labor laws
of most of the European countries.1
The truck act is a deduction from a general principle found in all
systems of law; namely, that where two classes of persons are dealing
together, one of which is weaker than the other and liable to oppres­
sion, either from natural or accidental causes, the law should as far as
possible redress the inequality by protecting the weak against the
strong. This relation arises most often between the employer and
employee. The laws passed to remedy the evil are prompted by the
motive to protect the man who is dependent upon his labor for bread.
It is pleaded in justification of these enactments that they are legiti­
mate police regulations. The opposite view is that ours is a free
government, where everybody has a right to earn a living and pursue
happiness by the sale of his labor or goods, and has the right to make
contracts with reference thereto upon such terms as he chooses, pro­
vided such terms are not against public policy. This is declared to
be a liberty and a property right embodied in both State and Federal
Constitutions. It is claimed that in a free government all these
rights must exist, and that mere accidental hardships can not be
relieved by infraction of the fundamental principles of equality
before the law. Legislators should be governed, it is said, by the
rule as stated by Locke and now incorporated in the fourteenth
amendment; they are to “ govern by promulgated, established laws,
not to be varied in particular cases, but to have one rule for rich and
poor, for the favorite at court and the countrymen at the plough.” 2
But there is an inherent difficulty in enforcing the penalties of the
law upon the employer, since prosecution must usually be instituted
1 Switzerland, Mar. 23, 1877, sec. 10; amended June 26, 1902; repealed and superseded, 1914.
Belgium, Aug. 16, 1887, sec. 1.
Germany, June 1,1891, German Trade Code, sec. 115.
New Zealand, act 1891, Aug. 29; Oct. 6, 1893; Oct. 19, 1899; Oct. 21, 1899; Aug. 16, 1900.
Russia, Mar. 14-26,1894, Industrial Code, secs. 34-106.
Austria, Feb. 23,1897.
British Columbia.—Acts of 1898, No. 43.
Western Australia, Oct. 28, 1898; Oct. 9, 1899.
N ew South Wales.—A cts of 1900, N o. 55.
France, Dec. 7,1909; Mar. 25,1910.
See Journal of the Society of Comparative Legislation, London, 1915, N. S., index to vol. 1-15, a Truck
legislation.”
2 T. M. Cooley: The General Principles of Constitutional Law in the United States of America, Boston,
1898, 3d ed., p. 350.




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W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

by the employee or by some one in his behalf. In either case, the
certainty of discharge makes the employee anxious to avoid the suit.
Consequently, almost the only cases where the law is enforced are in
those industries where a strong labor organization has taken up the
issue; and even then the result is not usually accomplished by a
legal prosecution, but by the direct influence of the labor organization.
THE TRUCK SYSTEM IN THE UNITED STATES.

The company store is a cause of bitter complaint by the working
class. Where the employer owns the store from which his employees
are required to purchase their food, clothing, and supplies, wages
are often paid in checks or tokens cashed only at a discount. Even
when wages are paid in cash, the employees are sometimes virtually
compelled to deal at stores owned or controlled by the employer.
This method of truck payment instead of cash payment is naturally
dependent in part upon the local circumstances of a business. In
enterprises like mining, where the place of work is remote from
business centers, the employers are often unable to secure employees
unless they provide stores for supplies. As the locality grows in
population and it becomes profitable for retail dealers to. locate
there, the necessity for the company store diminishes.
Obviously,. it is a benefit to the employee if the employer runs his
store to supply goods at cost plus the mere expense of handling—
but this is seldom the case. The temptation, especially in times of
depression, is too strong to prevent the effort to recoup losses in the
productive branch of the business by profits on the goods sold.
In the testimony given before the United States Industrial Com­
mission1 it was shown that in many of the company stores in the
South goods were sold for not less than 100 per cent profit. This
cut the wages of the laborer in half. The prices at company stores
in certain mining sections of Pennsylvania were shown to be 25 and 40
per cent more than elsewhere.2
In view of the testimony given before it, the United States Indus­
trial Commission recommended that:
*
* * More stringent legislation, as by providing that mining employers, etc.,
may not run supply stores at all, must necessarily be determined by the several
States according to their local conditions. The company-store acts now in existence
are frequently evaded by the device of giving a percentage on all purchases to the
employer or paying commissions on all collections from his employees. It may be
difficult to devise a uniform law touching such matters, but the attention of the State
legislatures is called to such evasions and the abuses arising therefrom.3
1 Final report of the Industrial Commission, 1902, vol. 19, p. 739. Washington, D . C.
2 Report of the T7. S. Industrial Commission, 1901, vol. 7, p p. 46,47.
3 Idem ., 1900, vol. 5, p. 5.




MODE OF WAGE P A Y M E N T S .

97

Even where prices are not excessive, company stores limit the choice
of the employee. Their existence contains the unwritten threat
of discharge for the laborer who fails to trade there.
Under the common law it is the rule that unless otherwise agreed,
the wages of an employee must be paid in cash. Pennsylvania was
the first State to legislate directly against the evils surrounding
other methods of wage payment.
Pennsylvania.—The Pennsylvania Legislature passed an a c t 1 in
1874 which prohibited manufacturing corporations from selling
commodities not manufactured by the corporation itself and pro­
hibited the corporation from permitting its employees to sell such
goods upon the lands possessed by such corporation.
A later a c t2 was passed which prohibited every manufacturing,
mining, or quarrying company from manufacturing or selling any
articles of merchandise other than those specified in its charter.
No company was permitted to withhold wages due any of its em­
ployees by reason of the sale or furnishing of goods or merchandise
to any employee, unless the wages were withheld in obedience to
due process of law. This act was declared not unconstitutional3 in
1890 because companies incorporated prior to the act were not within
its terms. In another case 4 the court held that the purpose of the
act was to do away with withholding wages due employees to pay
store bills, but that it was not the purpose of the legislation to restrict
the natural right of the employee to deal at any store which he
might prefer. If a laboring man, in the exercise of this right, trans­
ferred or assigned to a merchant any portion of his wages to secure
the payment of his store bills, he was bound by his contract as any
other man would be.
Five years later a case arose on the following facts. James Ham­
ilton worked for C. Jutte & Co. mining coal. He dealt at the store
of R. M. McCune & Co., who turned in the amount of his purchases at
the office of C. Jutte & Co. His employers deducted the amount
from his wages on pay day under an arrangement between the two
companies. Hamilton was discharged, after which he brought suit
under the act of 1891 to -recover the amounts kept out of his wages
through the company store. The court5 held an employee might
waive his right under the act and validly consent to receive his pay
in store orders.
1 Pennsylvania.—Acts of 1874, p. 106. Construed in Smucker v. Duncan et al., 10 Pa. C. C .430-432, Jan.
29, 1891.
2 Pennsylvania.—Acts of 1881, p p. 147, 148; 1S87, p. 180; 1891, p p. 96, 97; 1901, p. 290.
3 McManaman v. Hanover Coal Co., 6 Kulp, 181-188, Dec. 3, 1890. See also Schlosser v. Bethlehem
Iron Co., 1 Leh. Valley R ep. 6-10, Novem ber term, 1883.
* Evans v. Kingston Coal Co., 6 Kulp, 351-356, Feb. 8,1890. See also Welliver v. Fox, 4 Pa. Dist. Rep.
197,198, Feb. 6, 1895.
5 Hamilton v. Jutte & Co., 16 Pa. Co. Ct. 193-195, Feb. 27, 1895.

105598°—18—Bull. 229------ 7




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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

Another case arose in the following year under the same act.1
Sally was employed by the Berwind-White Coal Co. mining coal.
He traded at a general store which presented its bills to the BerwindWhite Coal Co. The latter subtracted the amount on pay day from
the wages due. This arrangement had Sally’s consent. He sued,
alleging that there was due him the sum of $304.45 with interest
for wages earned. He claimed the agreement and manner of paying
his wages were in violation of the act of May 20, 1891.
It was held 2 that the payment before made was a valid payment
and not contrary to any interpretation of the provisions of the act.
If the act was intended to prevent persons competent to contract
from making contracts they deemed mutually advantageous, and
which were not harmful in themselves or in conflict with the rights
of others, it was not only violative of the constitution, but of a law
as old as humanity itself.
The court said in part:
*
* * We are not unmindful of the “ company store,” which in some way and
to some extent is conducted in the interest of the mine owner, and is made the instru­
ment of wrong and oppression. The plaintiff, no doubt, is the victim of the company
store, and in bringing this action is only voicing the general complaint of the wage
earners wherever these stores exist. It is of no consequence what our individual
opinion may be as to the propriety of conducting a store in connection with mining
operations; our duty is to declare the law as it has been laid down for our guidance
by the tribunal of last resort * * *.

In the next year arose the case of Showalter v. Ehlan.3 Showaiter
was employed at mining by the ton rate. He was regularly paid
each monthly pay day. No rule required him to buy at the store
of Ehlan & Rowe. He did not object to the settlements. Monthly
statements were made showing the amount of his work and amount
of his bill for oil and powder, and also his store account. The state­
ment was put in an envelope and handed him with the balance of
his wages. Later he sued for the amount of his store orders. The
superior court held that no recovery could be had when it appeared
that according to agreements between the parties the employee was
fully paid for his labor, partly in money and partly by goods volun­
tarily purchased by him from the defendant’s store. The court
declared:
As to the attempt in the act of 1891 to prevent employers and employees from
making their own contracts, it is merely a repetition of what was vainly sought to be
done by the act of June 29, 1881, * * * and therefore is invalid.4
1 Pennsylvania.—Acts of 1891, p . 97.
2 Sally v. Berwind-W hite Coal Mining Co., 5 Pa. Dist. 316-318, Feib. 10, 1896.
3 Showalter v. Ehlan, 5 Pa. Super. Ct. 242-249, July 23, 1897.
4 Pennsylvania.—Acts of 1907, ch. 206, p. 270, relates to paym ent of miners b y forbidding removal of
checks from loaded coal cars.




MODE OF W AGE P A Y M E N T S .

99

Ohio.—An act of the Ohio Legislature prohibited payment of
miners with checks, scrip, or tokens purporting to be redeemable
otherwise than in money, but permitted orders to be issued on stores
in which the employer had no interest.1 Under this law Marsh
sought to recover in money the amounts called for on 12 checks
issued by a company in payment for work in their coal mine. Marsh
had bought the checks from the employees and demanded payment
for them in money. The State supreme court2 declared the law
unconstitutional because it abridged the right of contract.
West Virginia.—A West Virginia statute3 contained a provision
which prohibited persons and corporations engaged in mining and
manufacturing and interested in the selling of merchandise. from
selling goods to their employees at a greater per cent of profit than
that at which they sold to persons not employees. Under this law
the Fire Creek Coal & Coke Co. was indicted and fined in a county
court in 1887. The case was taken to the supreme court of appeals,4
which declared the act unconstitutional and void because it was
class legislation and an unjust interference with private contracts
and business. In the course of the decision the court said:
*
* * The act is an infringement alike of the right of the employer and em­
ployee. More than this, it is an insulting attempt to put the laborer under legisla­
tive tutelage, which is not only degrading to his manhood, but subversive to his
rights as a citizen of the United States.
In condemning this statute, we do not wish to give countenance to the idea that any
employer, whether he is engaged in mining, manufacturing, or any other business,
has the right to discriminate against his employees by selling them goods or supplies
under similar circumstances at a greater per cent of profit than he does to his other
customers. Such a discrimination is not only unjust, but it is subversive of the
first principles of trade; and no employee should buy from such an employer. The
remedy is in the hands of the employee. He is not compelled to buy from his em­
ployer; and the general law, without any special statute, will fully protect him in
his refusal to do so.

This case is important for the same reason that Godcharles v. •
Wigeman5 is important; it is one of the early cases. Curious, naive
reasoning is this. The judge recognized the very inequality and
injustice which the statute sought to remove, but could not bring
himself to consider the law as a reflection of economic conditions. It
is not difficult to estimate the effectiveness of the suggested remedy,
if the laborer has a wife and family of four or five children and is
1 Ohio.—Acts of 1878, pp. 124, 141; 1885, p. 120; 1886, p. 93; 1887, p. 214; 1889, p. 26; 1891, p. 443; 1911,
p p. 114, 115.
2 Marsh v. Poston & Co., 35 Ohio W k ly. L. B . 327-331, May 19, 1896. In Crawford v. W ick, 18 Ohio State,
190-207, December, 1868, the supreme court held unlawful and void as being in restraint of trade and tending
to m onopoly, extortion, and oppression, a contract between the lessor and lessee of a coal mine whereby
the lessee agreed to use his influence over his employees to induce them and their families to purchase
goods only at his store and bound himself not to accept any order given upon him b y any of his employees
for goods purchased of any other person or firm.
3 West Virginia.—Acts of 1887, ch. 63, pp. 192-194.
4 State v. Fire Creek Coal & Coke Co., 33 W . Va. 188-191, N ov. 18,1889.
5 See pp. 104, 105.




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W A G E -P A Y M E N T LEGISLATIO N IN T H E U N IT E D STATES.

dependent upon the wages he earns to maintain his standard of living.
It is true he could refuse to buy from his employer and the courts
would protect him. But what court could prevent his employer’s
discharging him for his refusal to buy goods at the company store ?
Illinois.—The Illinois Legislature enacted a statute 1 in 1891 which
declared it unlawful for any person or corporation engaged in mining
or manufacturing to be interested in keeping a truck store.
A suit to test the act was at once brought. The supreme court2
held that the legislature could not single out operators of mines or
manufacturers and provide that they should bear burdens not im­
posed upon other owners of property. On all matters relating to
mining and manufacturing wherein they differ from other industrial
branches, the legislature might properly pass laws which would affect
them alone. But keeping stores for the sale of groceries, tools, cloth­
ing, and food had no tendency to affect the mechanical process of
mining and manufacturing. Therefore a man could not be prohib­
ited from keeping a “ truck store ” merely because of his business. If
the legislature should undertake to provide by law that persons fol­
lowing some lawful trade or employment should not have the capac­
ity to make contracts or to receive conveyances, or to build such
houses as others were allowed to erect, or in any other way make such
use of their property as was permissible for others, the act would
transcend the bounds of legislative power, even if it did not come in
conflict with constitutional provisions.
A new act was passed in 1895 3 which provided that debts con­
tracted for labor should be payable in bankable currency. This act
has not been before the courts.
Colorado.—The senate of Colorado in 1897 submitted an inquiry 4
to the State supreme court as to the constitutionality of House Bill
147, “ to abolish and prohibit the use of scrip and to regulate what
is known as the ‘truck system.’ ”
The court replied:
*
* * A majority of the court are of the opinion that the legislature may, in the
exercise of the police power, enact laws of this character when necessary to prevent
oppression and fraud, and for the protection of classes of individuals against uncon­
scionable dealings. * * * We may properly take cognizance of the fact that the
most serious disturbances which have occurred in this country for the last 25 years
have grown out of the controversies between employer and employee. No one doubts
the authority or questions the duty of the State to interfere with such force as may be
necessary to repress such disturbances and maintain the public peace and tranquillity;
and as well may the State provide in advance against certain kinds of fraud and
oppression which lead to these outbreaks.




1 Illinois.—Acts of 1891, p. 212.
2 Frorer et al. v. People, 141 111. 171-188, June 15, 1892.
3 Illinois.—A cts of 1895, p. 263.
« In re House B ill No. 147, 23 Colo. 504-507, Mar. 30, 1897.

MODE OF W AGE P A Y M E N T S .

101

At the next session of the legislature a statute 1 was passed declar­
ing it unlawful for any person to use the “ truck system,” in the
payment of wages.
Kansas.—The Kansas Legislature in 18872 forbade employers who
were corporations or trusts employing 10 or more persons to pay
wages by check, order, or token, other than a check or draft on a
bank in which money was on deposit to meet the charge. It was made
an offense to compel employees to purchase goods at any particular
store.
A case under this act was taken to the State supreme court,3 which
declared the statute was unconstitutional because it violated the
fourteenth amendment of the Constitution of the United States. The
court4 said:
Under the penal provisions of the statute in question, a laborer who works for a
corporation or trust employing 10 or more persons, is deprived of his freedom of con­
tract, in that he can not bargain to receive anything in payment for his labor but
lawful money of the United States. While it might be desirable and profitable to
the employee of such corporation to receive a horse, or a cow, or a house and lot, in
payment for his wages, yet the legislature prohibits payment in that way and places
the laborer under guardianship; classifying him in respect to freedom of contract with
the idiot, lunatic, or the felon in the penitentiary * * *.
This discrimination has been justified by writers defending the doctrine of paternal­
ism, and by some judges, upon the asserted fact that labor is constantly engaged in an
unequal contest with capital. * * * Freedom of action—liberty—is the corner­
stone of our governmental fabric. * * * Laws which infringe upon the free exer­
cise of the right of a workingman to trade his labor for any commodity or species of
property which he may see fit and which he may consider to be the most advantageous
is * * * an obstruction to his pursuit of happiness. Such laws as the one under
consideration classify him among the incompetents and degrade his calling. * * *

Chief Justice Doster, in a dissenting opinion, declared:
*
* * Much of the argument made and nearly all of the illustrations used to
picture the claimed inequalities of the law are from the standpoint of the laborer
himself. * * * The corporations * * * can not be allowed to put themselves
in the position of the laborer, and say, as though with his mouth: “ The law does not
compel my employer to pay me in current money, but does compel my neighbor’s
employer to pay him in such medium. It is therefore bad.” * * *

A new act was passed by the legislature in the same year 5 which
applied such provisions to persons and corporations, but the pre­
sumption would favor the belief that it has not been enforced, since
it has not been contested in the courts.
Maryland.—The Maryland Legislature passed an a c t6 in 1898 to
prohibit railroad, manufacturing, and mining corporations in Alle­
1 Colorado.—Acts of 1899, ch. 155, pp. 425-428; 1901, ch. 55, pp. 128-130.
2 Kansas.—A cts of 1887, ch. 171, pp. 253, 254; repealed b y 1897, ch. 145, pp. 323, 324.
3 State v. Haun, 61 Kans. 146-180, Dec. 9, 1899. State v. Haun, 7 Kans. A pp. 509-523, Aug. 18, 1898.
* State v. Haun, 61 Kans. 146-180, Dec. 9, 1899.
&Kansas.—Acts of 1899, ch. 152, pp. 316, 317.
e Maryland.—Acts of 1898, ch. 493, pp. 143, 144; new act 1900, ch. 453, pp. 730, 731.




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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

gany County from selling goods or merchandise to their employees.
The constitutionality of this act was questioned 1 the following year.
The law was declared void, because it was held by the court to be
class legislation.
Indiana.—The Legislature of Indiana passed an act 2 of more gen­
eral application which prohibited any person or corporation selling
directly or indirectly to any employee any merchandise or supplies
at a higher price than such merchandise or supplies were sold by
others.. This act was repealed 10 years later and a new act prohib­
ited the issuance of checks or other devices payable in merchandise
by merchants in payment for the assignment of wages of employees
in coal mines.
Walsh, a miner, assigned his wages to Dixon, receiving four tokens
payable in goods at the store of Dixon. He afterwards disposed of
these checks to Poe, who sued to recover their value in cash; basing
his case on the statute of 1901.
Judge Dowling of the supreme court3 held the law void. He said
in part:
It is with great reluctance that we declare an act of the legislature invalid; but the
act of 1901 * * * so plainly violates the rule of the Constitution forbidding the
grant of special privileges and immunities to a favored class of citizens and subjecting
another class to special disabilities and restrictions, that we have no choice but to
adjudge it void.

Substantially the same, pro visions were reenacted in 1903 and later
amended.4 This law has not been before the courts.
Florida.—A case under the common law of Florida which turned
on the operation of a company store was before the State supreme
court5 in 1908. Stewart and another were partners and had leased
a storehouse from a lumber company which formerly used it as a
commissary. In their contract the lumber company agreed to issue
to its employees “ merchandise checks against their wages to be re­
deemed exclusively through the merchandise store.” In an action
for breach of contract, judgment was given for the lumber company.
On error proceedings from the circuit court this judgment was
affirmed by the State supreme court because it held the contract was
invalid as being contrary to public policy. The court said in sub­
stance that the issuance of such merchandise checks might not ipso
facto and necessarily be illegal under all circumstances but, under the
circumstances of this case, such a course of dealing tended to aid in
the restraint of trade and in the maintenance of monopoly.
1 Luman v. Hitchens Bros. Co., 90 Md. 14-29, N ov. 23, 1899.
2 Indiana.—A cts of 1891, ch. 83, pp. 108, 109; new act 1901, ch. 237, pp. 548, 549.
3 D ixon v. Poe, 159 Ind. 492-500, N ov. 25, 1902.
4 Indiana.—Acts of 1903, ch. 171, p . 307; 1911, ch. 68, pp. 110-l\2.
5 Stewart et al. v. Stearns & Culver Lum ber Co., 56 Fla. 570-595, Dec. 8, 1908.




MODE OF WAGE P A Y M E N T S .

103

Tennessee.—A statute 1 of Tennessee prohibited any joint-stock
company, association, or corporation from discharging any of its em­
ployees for trading or not trading with any particular merchant, per­
son, or class of persons. A railroad company was indicted for viola­
tion of this act and offered the defense that it was unconstitutional.
The State supreme court 2 declared the law was arbitrary, vicious
class legislation, and denied the equal protection of the laws. Judge
Shields, speaking for the court, said, in part:
It does not apply to natural persons * * * engaged in conducting the same
business, at the same place, in the same manner, and with similar employees. New
burdens and restrictions are placed upon corporations, the property of which belongs
to individual shareholders, which are not placed upon natural persons engaged in the
same business, conducted in the same way, and at the same place. We can see no
good reason or natural or reasonable basis for this discrimination. None has been sug­
gested or can be suggested, for they do not exist. The application of the statute is
made to depend solely upon whether the employer is a natural or artificial person,
between which, within the protection of the constitutional provisions invoked, there
is no distinction. The distinction made is in the character of the employer, and not
in that of the employment or business conducted.
i Tennessee.—A cts of 1887, ch. 208, pp. 338, 339; ch. 155, p p. 266, 267, coercion.
Similar provisions not yet tested as to constitutionality are to be found in the statutes of the follow­
ing States:
Alabama.—Acts (local) of 1899, ch. 406, pp. 817,818; 1901, ch. 998, p. 2271.
Alaska.—Acts of 1913, ch. 9, p. 12.
Arizona.—Acts of 1909, ch. 103, pp. 263,264; 1912 (sp. sess.), ch. 10, pp. 14,15; 1913 (3d sp. sess.) referen­
dum , p. 18.
Connecticut.—Acts of 1901, ch. 68, p. 1219. Laborers not to be overcharged for articles of merchandise
sold them.
Florida.—Acts of 1901, ch. 5015, pp. 165,166.
Idaho.— Acts of 1911, ch. 123, p. 385.
I o w a —Acts of 1888, ch. 55, pp. 78,79.
Kentucky.—Acts of 1892, ch. 35, p. 54.
Louisiana.—Acts of 1894, ch. 71, p. 83; 1908, ch. 228, p. 345.
Massachusetts.—Acts of 1900, ch. 469, p. 468.
Michigan.—Acts 1895, ch. 209, p. 384; 1897, ch. 221, pp. 278,279.
Mississippi.—Acts of 1916, ch. 91, p. 84.
Montana.—Acts of 1903, ch. 102, p. 192.
Missouri.—Acts of 1885, p. 83; 1895, p. 206; 1903, p. 220.
Nevada.—Acts of 1903, ch. 124, pp. 217,218; 1911, ch. 66, pp. 66,67.
New Hampshire.—Acts of 1911, ch. 78, pp. 81,82.
New Jersey.—Acts of 1881, ch. 190, p. 239.
New Mexico.—Acts of 1893, ch. 26, pp. 41,42; 1897, ch. 11, pp. 27-29; 1907, ch. 44, p. 65.
New Y ork.—Acts of 1889, ch. 381, p. 508; amended acts 1897, vol. 1, ch. 415, p. 464; 1906, vol. 1, ch. 316,
p. 748.
Oregon.—Acts of 1907, ch. 192, p. 355.
Philippine Islands.—Acts of 1912-13, ch. 219, p. 3.
Porto R ico.—Acts of 1908, pp. 171,172.
South Carolina.—Acts of 1872, ch. 169, p. 216; 1875, ch. 722, p. 899; 1879, ch. 12, p. 7; 1901, ch. 432, p. 746.
Texas.—Acts of 1903, ch. 63, p. 89.
Utah.—Acts of 1901, ch. 44, p. 39.
Virginia.—A cts of 1887, ch. 391, pp. 497,498; amended acts of 1887-88, ch. 118, p. 131; 1912, ch. 106,
pp. 188-190.
W ashington.—Acts of 1887-88, ch. 128, p. 234; amended 1905, ch. 112, p. 219.
W isconsin.—Acts of 1899, ch. 221, pp. 371,372.
2State v. Nashville, Chattanooga & St. Louis R y. Co., 124 Tenn. 1-15, Mar. 4,1911.




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W A G E -P A Y M E N T LEG ISLATION IN T H E U N IT E D STATES.

PAYMENT IN LAWFUL MONEY.

Maryland.—The Maryland Legislature passed a law 1as early as 1880
which prohibited payment of employees of certain corporations in
Allegany County otherwise than in legal tender. A suit was brought
at once to test its constitutionality.
Shaffer & Munn were merchants who rented their place of busi­
ness from the Union Mining Co., but beyond this relation of landlord
and tenant had no business connection with them. They sold goods
on credit to employees of the mining company, taking an assignment
on their wages for the payment of the goods. They presented these
assignments to the mining company for payment, but they were re­
fused. They then sued to recover the amounts due. The State
supreme court2held that the act was a valid exercise of police power
by the legislature.
In the course of the opinion the court said:
Having determined that the legislature has the power to control this appellee in
respect to its contracts with its employees, and the mode of paying them; the next
inquiry is, does this law by necessary implication restrict the powers of the employees
over their wages—the fruits of their labor—so that they may not assign their wages
* * * The statute was manifestly intended to be in the interest of the employees
* * *. Being protective in its character, it can not have been intended as restric­
tive of the employee’s rights, except in so far as it prevents his colluding with the
employer to do what the law forbade the corporation to do * * *.

Pennsylvania.—The Legislature of Pennsylvania passed an act 3
in 1881 which required that all persons engaged in mining or manu­
facturing should pay their employees in lawful money or cash order.
The State supreme court in 1886 declared the act unconstitutional.
Wigeman was employed as a puddler by Godcharles & Co. in their
nail mill at Milton, Pa.4 During the time of his employment he
asked for and received from the defendants orders on different parties
for the purchase of coal and other articles. The orders were honored
and the company afterwards paid them. Wigeman maintained these
orders could not be applied as a set-off to his claim for wages under
the act of 1881.
The court said 5 in part:
*
* * The first, second, third, and fourth sections of the act of June 29, 1881, are
utterly unconstitutional and void, inasmuch as by them an attempt has been made
by the legislature to do what in this country, can not be done; that is, prevent persons
who are sui juris from making their own contracts. The act is an infringement alike
of the rights of the employer and the employee. More than this, it is an insulting
attempt to put the laborer under a legislative tutelage, which is not only degrading
to his manhood, but subversive of his rights as a citizen of the United States. He may
1 Maryland.—Acts of 1880, ch. 273, pp. 417,418; 1892, ch. 445, pp. 640.641; Garrett County, 1900, ch. 453,
pp. 730,731; Allegany County, amended 1902, ch. 589, pp. 846,847.
2 Shaffer & Munn v. U nion Mining Co., 55 Md. 74-87, Dec. 9, 1880.
3 Pennsylvania.—Acts of 1881, ch. 173, pp. 147, 148; Acts of 1887, ch. 121, pp. 180,181.
4 The law had already been construed in R ow v. Haddock, 3 K ulp, 501-504, Oct. 31,1885.
&Godcharles & Co. v. W igeman, 113 Pa. State, 431-437, Oct. 4, 1886.




MODE OF W AGE P A Y M E N T S .

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sell his labor for what he thinks best, whether money or goods, just as his employer
may sell his iron or coal, and any and every law that proposes to prevent him from
so doing is an infringement on his constitutional privileges, and consequently
vicious and void.

Such vigorous terms carried this case as a precedent throughout
the highest State courts of the country. The court met the issue
with no uncertain language. Not so much can be said of some of
the later cases. Additional acts 1 were passed in later years. They
attempt the same sort of regulation but have not been tested in the
courts and presumably have not been enforced.
West Virginia.—A West Virginia a c t2 prohibited persons and
corporations engaged in mining and manufacturing from issuing
for the payment of labor any order or paper, except such as was
specified in the act.
The supreme court of appeals held 3 the legislature could not place
upon owners and operators of mines and manufacturers burdens not
imposed on others, nor prohibit them from making contracts which
others might make. Such legislation could not be sustained as an
exercise of the police power.
Judge Snyder, who delivered the opinion, said in part:
* * * Liberty * * * means the right, not only of freedom from servitude,
imprisonment, or restraint, but the right of one to use his faculties in all lawful ways,
to live and work where he will, to earn his livelihood in any lawful calling and to
pursue any lawful trade or avocation * * *.
* * * rpkg vocation of an employer, as well as that of his employee, is his prop­
erty. Depriving the owner of property of one of its attributes is depriving him of his
property, under the provisions of the constitution * * *.
In view of what the courts have uniformly held in respect to this class of legislation,
it is needless to prolong this discussion. It is a species of sumptuary legislation which
has been universally condemned, as an attempt to degrade the intelligence, virtue,
and manhood of the American laborer, and foist upon the people a paternal govern­
ment of the most objectionable character, because it assumes that the employer is a
knave, and the laborer an imbecile.4

Soon after this adverse decision another a ct5 was passed. This
act also came before the courts. The Peel Splint Coal Co. violated
the act of 1891, which prohibited the use of scrip in payment of
miners. The constitutionality of these acts was attacked upon appeal
to the State supreme court.6 The court upheld the lower court and
declared the laws constitutional for the reason that they “ * * *
were passed with a view of cutting off opportunities for fraud, and
therefore were fairly within the police power of the legislature.”
1 Pennsylvania.—Acts of 1891, ch. 71, p. 96; 1901,ch. 290, pp. 596, 597, provides a tax on all orders, checks,
divider’s coupons, pass books, or other paper representing wages or earnings of an employee, not paid in
cash to the employee or member of his family.
2 W est Virginia.—Acts of 1887, ch. 63, pp. 192-194.
s State v. Goodwill, 33 W . Va. 179-187, N ov. 18, 1889; State v. Minor, 33 W . Va. 179, N ov. 18, 1889.
^ State v. Goodwill, 33 W . Va. 182-184, 186.
&West Virginia.—Acts of 1891, ch. 76, pp. 197, 198.
« State v. Peel Splint Coal Co., 36 W . Va. 802—858, Oct. 6,1892.




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This decision served evidently as an effective check on further
litigation, for it was 23 years before another case 1 brought the a ct2
before the courts. Atkins brought suit against the Grey Eagle Coal
Co. for the face value of certain scrip, payable in merchandise issued
by the company to its employees. Judgment was rendered for him
in a justice’s court and in a circuit court. The company brought
writ of error to the supreme court of appeals on the ground that the
law was unconstitutional. The court upheld the constitutionality of
the statute. Judge Lynch delivered the opinion of the court in
which he said in part:
While the present statute differs in material respects from the act construed, and
held invalid in State v. Goodwill * * * it is the same act construed and held
valid in State v. Peel Splint Coal Co. * * * though by an equally divided court.
The former act * * * embraced within its inhibition only persons engaged in
certain specifically designated business activities; while the latter in express terms
embraces all persons, firms, companies, and corporations engaged in any trade, call­
ing, or business. The discrimination manifestly appearing from the act of 1887,
though not generally recognized in criticisms directed against the decision in the
Goodwill case, was the real basis of such decision * * *.
* * *
ac£ imposed no restrictions upon employers of labor engaged in other
trades or callings where the propriety or necessity therefor was equally apparent.
* * * rpkg trend of it (the Peel Splint Coal Co. case) is that the freedom of indi­
vidual contract must yield to due legislative restraint whenever necessary to conserve
the public health, safety, and morals and to promote the general welfare and peace
of the community : and ordinarily such is the basis of the decisions in other jurisdic­
tions upon similar statutes.
We do not think the statute challenged by defendant violates any constitutional
provision, or unduly curtails the right of contract, or is an illegitimate exercise of the
State’s police power.3

Indiana.—Indiana was the next State to legislate on this question.
The legislature passed a law4 that any person who issued any paper
not commercial paper, payable in lawful money, to any employee in
payment for work, should be guilty of a misdemeanor.
The constitutionality of the act has never been passed upon though
it has been several times construed by the State courts.5
Tennessee.—The Tennessee Legislature by an a c t 6 of 1887 declared
any person who refused to redeem in lawful currency any checks or
scrip of their own presented within 30 days of its issuance guilty
of a misdemeanor.
1 Atkins v. Grey Eagle Coal Co., 76 W . Va. 27-31, Mar. 16, 1915.
Virginia.—Acts of 1891, ch. 76, pp. 197, 198.
3 Atkins v. Grey Eagle Coal Co., 76 W . Va. 28, 29, 31.
* Indiana.—Acts of 1885, ch. 21, pp. 36,37; 1899, ch. 124, p p. 193,194; 1903, ch. 171, p. 307; 1911, ch. 68, p. 110;
1913, ch. 27, p p. 47, 48.
5 Construed in Terre Haute & Indianapolis R . R . Co. v. Baker, 122 Ind. 433-443, Mar. 12, 1890; Terre
Haute & Indianapolis R . R . Co. v. Baker, 4 Ind. A pp. 66-68, Mar. 2, 1892; Naglebaugh v. Harder & Hofer
Coal Mining Co., 21 Ind. A p p. 551-556, Oct. 11, 1898; Pere Marquette R . R . Co. v. Baertz, 36 Ind. A p p. 408422, A pr. 28, 1905.
« Tennessee.—Acts of 1887, ch. 209, p. 340; new act 1891 (ex. sess.), ch. 5, pp. 18,19.

2 West




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107

In State v. The Paint Rock Coal & Coke Co., the State supreme
court1 held that the statute violated the spirit if not the letter of the
State constitutional provision which prohibited the legislature pass­
ing any law authorizing imprisonment for debt in civil cases and was
therefore unconstitutional.
Another statute,2 passed in 1899, required all persons using store
orders to pay employees to redeem them at face value in lawful
money. Nothing in the act was to be construed as legalizing the use
of scrip. Complaint was brought under the provisions of this act by
one Samuel Harbison in the chancery court of Knox County to
secure a decree for the redemption by the Knoxville Iron Co. of cer­
tain orders for coal. A carefully prepared opinion of the State
supreme court3 was delivered by Judge Caldwell, in which he said :
*
* * The court of chancery appeals found that the defendant is so accustomed
to use coal orders; that it in that ‘ ‘ way pays off about seventy-five per cent of the wages
earned by its employees’ ’ and that its course of business in that respect is one ‘ ‘ whereby
employees are systematically, in the main, settled with in coal orders instead of cash,
and where, though there is no compulsion in form, yet, in fact, by holding back their
wages, such a motive power is brought to bear upon their freedom of choice as to prac­
tically amount to coercion; that the facts of the case 'show a species of compulsion
whereby the defendant takes advantage of the necessities of the improvidence of its
employees, and so places them in a position where they feel compelled to take their
wages in coal orders.’ ”

The court then addressed itself to a thorough discussion of the pro­
visions of the fourteenth amendment to the Constitution of the United
States and to that part of section 8, of article 1, of the constitution of
Tennessee which declares that “ no man shall be * * * deprived
of his life, liberty or property but by * * * the law of the land.”
Upon the question of classification the court said:
Though operating equally on all persons in like condition, while in existence, the
“ law of the land’ ’ on no subject can be truly said to be immutable. On the contrary,
it is always subject to change, by diminution or enlargement, by repeal or substitu­
tion, as different and new conditions arise; otherwise there could be no advance in
legislation or legal development, and the legislative department of the Government
would be wholly unnecessary and superfluous. The law is, in fact, a progressive science
and its growth must be allowed to keep pace with the advance of civilization.
Under the act, the present defendant may issue weekly orders for coal as formerly,
and may pay them in that commodity when desired by the holder; but instead of
being able, as formerly, to compel the holder to accept payment of such orders in coal,
the holder may, under the act, compel defendant to pay them in money. In this way,
and to this extent, the defendant’s right of contract is affected. Under the act, as
formerly, every employee of the defendant may receive the whole or a part of his wages
in coal orders, and may collect the orders in coal, or transfer them to some one else for
other merchandise, or for money. His condition is bettered by the act, in that it natur­
ally enables him to get a better price for his coal orders than formerly and thereby
1 State v. Paint R ock Coal & Coke Co., 92 Tenn. 81-84, N ov. 18, 1892.
2 Tennessee.—Acts of 1899, ch. 11, pp. 17,18, amended 1915, ch. 90. p. 236.
3 Harbison v. K noxville Iron Co., 103 Tenn. 421-448, N ov. 8, 1899. See also Dayton Coal & Iron Co. v.
Barton, 103 Tenn. 6Q4-615, N ov. 20, 1899.




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gives him more for his labor; and yet, although the defendant may not in that transac­
tion realize the expected profit on the amount of coal called for in the orders, it in no
event pays more in dollars and cents for the labor than the contract price.
*
* * The legislature evidently deemed the laborer at some disadvantage under
existing laws and customs, and, by this act, undertook to ameliorate his condition in
some measure by enabling him, or his bona fide transferee, at his election and at a
proper time, to demand and receive his unpaid wages in money rather than in some­
thing less valuable. Its tendency, though slight it may be, is to place the employer
and employee upon equal ground in the matter of wages, and, so far as calculated to
accomplish that end, it deserves commendation.
Besides the amelioration of the employee’s condition * * * the act was in­
tended and is well calculated to promote the public peace and good order, and to lessen
the growing tendency to strife, violence, and even bloodshed, in certain departments
of important trade and business. * * *
The act before us is perhaps less stringent than any one considered in any of the
cases. * * * It is neither prohibitory nor penal; not special but general, tending
toward equality between employer and employee in the matter of wages, intended
and well calculated to promote peace and good order, and to prevent strife, violence,
and bloodshed. Such being the character, purpose, and tendency of the act, we have
no hesitation in holding that it is valid, both as general legislation, without reference
to the State’s reserved police power, and also as a wholesome regulation adopted
in the proper exercise of that power.

This language furnishes a trenchant contrast to that used in the
Godcharles v. Wigeman case which is widely quoted with approval
in cases coming within this field. By writ of error the case was
taken to the United States Supreme Court1 on the question of the
validity of the law under the Federal Constitution. Justice Shiras
delivered the opinion of the court in which the judgment of the
Supreme Court of Tennessee was affirmed. The reasoning and con­
clusions of the court were thoroughly approved. Justice Shiras
in the opinion said:
The Supreme Court of Tennessee justified its conclusions by so full and satisfactory
a reference to the decisions of this court as to render it unnecessary for us to travel
over the same ground. * * *

Missouri.—The Missouri Legislature passed an a c t2 which made
it a misdemeanor for any person engaged in manufacturing or mining
in the State to issue in payment of laborers any evidence of indebt­
edness, payable otherwise than in lawful money, unless the same was
negotiable and redeemable at its face value in cash or in goods at the
option of the holder.
W. Loomis, L. Loomis, and E. Snively were charged with a viola­
tion of the statute. The case was tried before the full bench of the
State supreme court3 which declared the act void as class legisla­
tion and violative of the constitutional guaranty of due process of
1 K n oxville Iron Co. v. Harbison, 22 Sup. Ct. 1-4, Oct, 21,1901. See also Dayton Coal & Iron Co. v.
Barton, 22 Sup. Ct. 4, Oct. 21,1901; State v. Prudential Coal Co., 130 Tenn. 275-278, Oct. 31,1914.
2 Missouri.—A cts of 1881, pp. 73,74, amended 1885, pp. 83,84; 1891, p. 183; repealed 1899, p. 305.
3 State v. Loomis et a l., 115 Mo. 307-336, Mar. 25,1893. See also State v. Loom is, 20 S. W . 332, Oct. 10,1892;
McCarty v. O’ Bryan, 137 Mo. 584-591, Feb. 9, 1897.




MODE OF W AGE P A Y M E N T S .

109

law. But Judge Barclay wrote a strong dissenting opinion in
which he said:
* * * If an act reaching only mining and manufacturing concerns is, on that
account, not “ due process of law,” what must be held of statutes establishing special
rules of liability, or business regulations, applicable to railroads only, * * * and
the many other classes of persons whose affairs form topics of treatment in separate
laws in Missouri. Are all such statutes void * * *? Probably they would not
be so held. Yet if they are valid, what is there so exceptional about the truck
system that precludes legislation applicable to those lines of business in which it pre­
vails? * * * The opinion admits that ‘ ‘ the legislature may regulate the business
of mining and manufacturing so as to secure the health and safety of the employees.”
If a law applicable only to persons engaged in mining is constitutional when dealing
with the topic of their health and safety, it is obvious that an act designed to prevent
fraud or oppression in the payment of wages in mining and manufacturing enter­
prises is not objectionable on the ground of the selection or “ classification” of those
enterprises as subjects for separate legislation. “ Liberty ‘ on its positive side denotes
the fullness of individual existence; on its negative side it denotes the necessary re­
straint on all which is needed to promote the greatest possible amount of liberty for
each.’ ”

A later statute1 provided that “ it shall not be lawful for any
person, firm, or corporation to issue, pay out, or circulate for pay­
ment of the wages of labor, any order, note, check, memorandum,
token, evidence of indebtedness, or other obligation unless the
same is negotiable and redeemable at its face value in lawful money
of the United States, by the person, firm, or corporation issuing
same”
Edward Benn was charged with a violation of this law. He. was
manager of a lumber company. He had employed one Madden
to work for him for a few hours. At the time of his employment
Madden had been told that he would be paid by checks issued by a
firm of merchants and accepted by them as store orders would be.
Madden agreed to this and accepted two checks valued at 50 cents
each and used one at the store of the firm which issued the checks.
He asked cash for the other which the merchants declined to pay. He
then offered it to Benn asking him to redeem it, which he declined
to do. This Benn denied. Madden then took the check to the
prosecuting attorney who brought the suit.
Judge Bland, who delivered the opinion of the court,2said in part:
* * * The statute was designed to protect the laboring class from a prevalent
evil. * * * If one laborer can waive or contract away the benefit secured by the
statute, so may every other laborer. If this can be done, what is then to hinder the
persons, firms, and corporations, scheming to make a profit from both the labor and the
wages of the laborer, from incorporating in the contract of hire an express stipulation
that the laborer waives his right to demand payment of his wages in money and agrees
to take a check, or what not, redeemable in merchandise at his employer’s store and
1 Missouri.—A cts of 1895, p. 206.
2 State v. Benn, 95 Mo. A p p. 516-526, June 24, 1902.
Dec. 9,1903.




Construed also in State v. Balch, 178 Mo. 392-412,

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T H E U N IT E D STATES.

thus effectually nullify the statute? The statute is the offspring of necessity and is an
expression of legislative policy. It expresses in part the public policy of the State
and can not be waived or contracted away. * * *

In the following year another case was before the same court. The
Missouri Tie & Timber Co. gave to Sweeney an order book containing
mercantile coupons valued at $5 redeemable in merchandise at the
company’s store. Books of this sort were issued only to employees to
whom the company was indebted and without coercion or compul­
sion on any employee to accept them.
Judge Burgess delivered the opinion of the State supreme court1in
which all the judges concurred. He held that the Loomis case was
authority for holding this law unconstitutional, that the right to make
contracts and have them enforced was one of the rights secured to
every citizen. In contrast to the Loomis case, the court here placed
its decision squarely upon the broad ground of constitutional liberty
and in spite of the fact that the court had before it the opinion of the
United States Supreme Court, handed down three years earlier in the
Harbison case.
North Carolina.—North Carolina in an a c t2 of 1889 made it unlaw­
ful for any person employing laborers by the day, week, or month to
issue in payment of wages scrip bearing upon its face the word
“ nontransferable.” All scrip issued to laborers for labor was to be
paid at face value. The supreme court of the State held that the act
did not authorize the assignee of a ticket or scrip payable in mer­
chandise to demand and receive payment in money instead of in
merchandise.3
Washington.—Washington was the next State to legislate on this
subject. The legislature passed an a c t4 which made it unlawful for
any person engaged in business in the State to issue scrip in payment
for wages unless it was negotiable at face value. An amendatory
act5 was later passed which provided that it should not be lawful for
any corporation to issue for payment of wages any order, or check,
payable otherwise than in lawful money unless negotiable and redeem­
able at its face value.
Shortall brought suit to recover $21.36 due as wages. He had
worked for the company about two months when he quit and de­
manded immediate payment. He was refused on the ground that
it was not due and payable under the contract until a later date.
1 State v. Missouri Tie & Tim ber Co., 181 Mo. 536-563, May 11, 1904. Followed in Leach et al. v. Missouri
Tie & Tim ber Co., I l l Mo. App. 650-653, Apr. 4, 1905.
2 N orth Carolina.—A cts of 1889, ch. 280, p. 285; amended and added to b y 1891, ch. 78, pp. 81, 82; ch. 370,
p. 447; ch. 456, p. 515; 1895, ch. 127, p p. 180, 181.
3 Marriner v. R oper Co. 112 N. C. 164-168, February term 1893.
4 W ashington.—A cts of 1887-8, ch. 128, p p. 234, 235. Construed in Quinby v. Slipper, 7 W ash. 475-478,
Dec. 27, 1893; and in Agee v. Smith, 7 W ash. 471, 475, Dec. 27, 1893.
5 W ashington.—A cts of 1905, ch. 112, pp. 219, 220. Construed in State v. Chehalis Furniture & Mfg.
Co., 47 W ash. 378-381, Oct. 28, 1907.




MODE OE WAGE P A Y M E N T S .

The State supreme court sustained1 the law.
court said:

Ill
In the opinion the

The * * * contention is that the act in question is unsupported by any prin­
ciple of public policy. But we think the practice, pursued by certain employers of
labor, of paying the wages of their employees in orders drawn upon stores redeemable
in commodities, other than lawful money of the United States, and of postponing the
day of payment until long after the wages were earned, was a real evil, operating to the
detriment of the wage earner, and consequently to the detriment of the State. * * *

Another act2 was passed in 1907 by the legislature which made it
unlawful for any transportation company to require an employee,
as a condition of his continued employment, to purchase at any par­
ticular place clothing required by the company. The constitution­
ality of this act has not been tried.
Kentucky.—Section 244 of the Kentucky3 constitution provides
that “ all wage earners in this State employed in factories, mines,
workshops, or by corporations shall be paid for their labor in lawful
money. The general assembly shall prescribe adequate penalties
for violation of this section.” Following this mandate the general
assembly in 1892 4 declared a violation of this provision a misde­
meanor and affixed a penalty of a fine not to exceed $500 for each
violation.
A mining company paid its employees once each month in lawful
money for the past month’s labor. At any time during the month,
upon application of an employee, the company issued checks to him
payable in merchandise at the company store. The amount of checks
issued to each man was deducted from his wages each pay day and
he was paid the balance in cash, but no money was paid for out­
standing checks.
The Court of Appeals of Kentucky 5 held that an arrangement as
above described was not in violation of the act nor of section 244 of
the constitution.
*
* * The object of the legislation was to protect the weak against the strong,
and the wage earner is regarded as liable to imposition and oppression at the hands of
his employer. * * * There has been no suggestion of oppression in the argument,
and. none in the testimony, growing out of the regulation of the pay days in this case,
and we have assumed it to be reasonable.

Another statute6 was passed which provided that all persons who
employed 10 or more persons in mining should pay for the work of
the month previous before the 16th of each month in lawful money of
the United States the full amount of wages due. Coercion of em­
1 Shortall v. Puget Sound Bridge etc. Co., 45 W ash. pp. 290-295, Jan. 9, 1907. See also State ex rel.
Chicago & P. S. R y . Co. v. Superior Court of King County, 73 W ash. 33-37, Apr. 15,1913.
2 W ashington.—A cts of 1907, ch. 224, pp. 517, 518.
3 K entucky Constitution, 1891, sec. 244.
« K entucky.—A cts of 1892-93, ch. 35, p. 54.
5 A vent B eattyville Coal Co. v. Comm onwealth, 96 K y . 218-223, Dec. 1, 1894.
6 K en tu cky.—A cts of 1898, ch. 15, pp. 59, 60; amended 1902, ch. 60, pp. 125, 126.




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ployees to deal with or purchase merchandise at any particular store
was prohibited.
The Hillside Coal Co. was indicted for failing to pay an employee
in lawful money as provided in the act.1 The court of appeals held:
* * * In so far as the statute may discriminate in favor of wage earners engaged
in mining work or industry—a discrimination vigorously denounced in some juris­
dictions and as vigorously upheld in others—the statute simply follows the lead of the
organic law, and can not, therefore, be said to be contrary to it * * *
* * * The abuse sought to be corrected was the imposition practiced on miners
by the operators of mines by forcing them, directly or indirectly, into dealing with the
“ company stores,” where goods at exorbitant prices were paid for wages instead of
money. This evil can hardly be practiced in small concerns, or where less than 10
miners are employed. In effect, the lawmakers said there is in small concerns using
less than 10 men practically no such evil as the constitution seeks to suppress; there­
fore we ignore the small concerns, and apply the benefit of the constitutional provision
to that portion of the class only which needs the benefit. * * *

Another case2 in the court of appeals held that the redemption of
checks, issued to employees for services, at a reduction of 10 per cent
of their face value was a violation of section 244 of the State constitu­
tion. Judge Hobson, who spoke for the court, said in part:
This brings us to the real question in the case: Has the defendant a right to a reduc­
tion of 10 per cent from the face of the checks? Section 244 of the constitution is as
follows: * * * Under this section the defendant may lawfully issue checks to
its miners to show what it owes them, but these checks must, at the next bimonthly
pay day, be paid at their face value; otherwise, the miners will not be paid for their
labor in lawful money. * * * If such contracts were upheld, our usury laws would
be vain and useless; for they could in this way be evaded without the lender being
out of his money at all.

A recent case 3 in the same court held that while it is not a criminal
offense under section 244 of the constitution or the acts of 1898 and
1902 for a mining corporation to issue merchandise coupon books to
its employees in payment for wages not yet earned, those provisions
are violated by the refusal of the company to redeem the coupons in
such books in cash at the time wages become due, since any other
construction of the statute would permit the employer to defeat the
purpose of the law, which was to prevent it from securing a monopoly
of the business of selling supplies to its employees.
New Jersey.—An act 4 to secure the workmen the payment of their
wages in lawful money was passed by the New Jersey Legislature in
1877. It applied to any person or corporation. A new act5 applied
the principle to any glass manufacturer, ironmaster, foundryman,
collier, factory man, employer, cranberry grower, or his agent or com1 Commonwealth v. Hillside Coal Co., 109 K y . 47-51, Sept. 27, 1900. See also H udnall v. W atts Steel &
Iron Syndicate, 20 K y . L. R ep. 1211, 1212, Jan. 20, 1899.
2 Kentucky Coal Mining Co. v. Mattingly, 133 K y . 526-531, Apr. 27, 1909.
s Pond Creek Coal Co. v. R iley Lester & Bros., 171 K y . 811-818, Oct. 31,1916.
4 New Jersey.—Acts of 1877, ch. 147, p. 231; amended b y 1880, ch. 36, p. 45.
5 New Jersey.—Acts of 1880, ch. 198, p p . 295, 296; amended 1888, ch. 129, pp . 174, 175; 1896, ch. 179, p p.
262, 263; 1899, ch. 38, p p. 69, 70; 1904, ch. 195, p. 354.




MODE OF W AGE P A Y M E N T S .

113

pany. The act was enforced, but its constitutionality not passed
upon in 1895.1
Texas.—Action under the common law was brought by James
Robinson against the Texas Pine Land Association in the district
court of Hardin County, Tex. The suit was for damages growing out
of the conduct of the association in issuing checks at its store. The
court of civil appeals refused relief. The court in the course of the
opinion2said:
System whereby such checks would be honored in the hands of anyone except plain­
tiff was calculated to insure trade at defendant’s store, and diminish that of its rival;
and as plaintiff has no definite right to the public trade, he has no legal right to com­
plain that defendant absorbed it by the manner of managing its business, and its rela­
tion with its employees.

Virginia.—The Virginia Legislature passed a law3 in 1887 which
prohibited any person, firm, or corporation engaged in mining coal or
ore or manufacturing iron or steel or any other kind of manufac­
turing, from issuing for the payment of labor any order unless the
same purported to be redeemable for its face value in lawful money of
the United States.
A case4 under this act came before the State court of appeals in
1912 on the following facts. Taylor brought suit to recover in, cash on .
store orders payable only in merchandise, issued in payment for
labor. The objection was urged that the statute was class legislation
and inconsistent with the fourteenth amendment. The court
affirmed a judgment in favor of the plaintiffs. Appeal was then taken
to the United States Supreme Court which also affirmed the judg­
ments. The opinion5 of the court was delivered by Mr. Justice
Holmes, in the course of which he said:
*
* * But while there are differences of opinion as to the degree and kind of dis­
crimination permitted by the fourteenth amendment, it is established by repeated
decisions that a statute aimed at what is deemed an evil, and hitting it presumably
where experience shows it to be most felt, is not to be upset by thinking up and enum­
erating other instances to which it might have been applied equally well, so far as the
court can see. * * *

Illinois.—The Illinois Legislature passed an act in 18976 which
provided that every person engaged in mining coal should be paid in
lawful money. The Whitebreast Fuel Co. was charged with viola­
tion of the act. The company appealed the case to the State supreme
court which sustained the act7 by interpreting it so broadly as to be
no check on the employer.
1 Cumberland Glass Manufacturing Co. v. State, 58 N . J. 224-227, N ov. 7, 1895.
2 R obinson v. Texas Pine Land Association, 40 S. W . 843, May 12,1897.
3 Virginia.—A cts of 1887, ch. 391, p p. 497, 498; amended 1887-88, ch. 118, p. 131.
* Taylor v. Keokee Consolidated Coal Co., not reported.
&Keokee Consolidated C oal Co. v. Taylor, 34 Sup. Ct. 856, 857, June 8, 1914.
6 Illinois.—Acts of 1897, p. 270.
7 W hitebreast Fuel Co. v. People, 175 111. 51-55, Oct. 24,1898.

105598°—18— Bull. 229------ 8




114

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

The court said in part:
*
* * It appears to have been the design of the legislature to eliminate from this
act the objectionable features of former enactments by making contracts enforceable
according to their terms, instead of attempting to make contracts for the parties. * * *
We * * * must hold that its provisions do not apply where there is a contract for
the payment of compensation by different means or upon a different basis than that
specified in the act. To hold otherwise would render the enactment unconstitu­
tional. It has been uniformly decided that a laborer can not be deprived of the right
to make his own contracts and exercise his own judgment as to how much he will
receive for his labor and what he will receive as payment.

Louisiana.—The Legislature of Louisiana enacted a law1 in 1894
“ to encourage the freedom of trade and to forbid the issuance by
merchants or corporations of tickets redeemable only in goods at
their own place of business.” The act was declared unconstitu­
tional in 1900 because of a defective title.2 A new act was passed in
19083 which provided for the redemption of checks in lawful money
and this law has been held constitutional4 on the authority of Knox­
ville v. Harbison.
South Carolina.—The South Carolina Legislature passed an act5
which required that individuals as well as corporations should pay
wages in lawful money or by order redeemable at face value in cash
' or in goods at the option of the holder. Another law was aimed at
company stores.6 This act has been before the courts for construc­
tion several times. A new act7 required wages to be paid in lawful
money, and applied its provisions to individuals. This law has not
been before the courts up to the present time.
Texas.—The Legislature of Texas passed a law 8 in 1901 which
forbade any person or corporation to issue checks or written obliga­
tions to employees for labor performed, redeemable or payable in
goods or merchandise.
Jordan, an agent of the Strawn Coal Mining Co. was convicted of
a violation of the act. He had sold a piece of metal redeemable in
merchandise at the general store of the company. He was discharged
on appeal to the court of appeals because the act interfered with the
right of contract and contravened the Federal Constitution and a
provision of the State constitution that “ no citizen shall be deprived
1 Louisiana.—Acts of 1894, ch. 71, p. 83.
2 State v. Ferguson et al., 104 La. 249-254, N ov. 19,1900. The same points were argued in State v. Atkins
et al., 104 La. 37, 38, N ov. 19, 1900.
s Louisiana.—Acts of 1908, ch. 228, p. 345.
4 Regan v. Trem ont Lum ber Co., 134 La. 199-201, Dec. 15, 1913.
5 South Carolina.—A cts of 1901, ch. 432, pp 746, 747. The case, Johnson L ytle & Co. v. Spartan Mills, 68
S. C. 339-362, Mar. 28, 1904, arose where the checks given were issued as credit. The court held this was
not a paym ent of wages.
« South Carolina.—A cts of 1904, ch. 254, p p. 442, 443. Construed in Granby Mercantile Co. v. W ebster,
98 Fed. R ep. 604-606 (S. C.), Dec. 27,1899. Pearson v. Mills Mfg. Co., 82 S. C. 506-509, May 4,1909.
7 South Carolina.—Acts of 1914, ch. 314, p. 563; amended 1915, ch. 44, p. 55; ch. 126, p. 180.
s Texas.—A cts of 1901, ch. 112, p. 275; amended b y 1905, ch . 152, p. 372.




MODE OF W AGE P A Y M E N T S .

115

of life, liberty, property, privileges, or immunities, except by due
course of law. ”
The presiding judge declared in the course of the opinion:1
* * *
iaw wouid prevent the employer and employee from entering into
any contract by which the labor performed or to be performed by the employee should
be discharged or paid off in merchandise at the hands of another. That this is vio­
lative of every fundamental principle of the right of contract will hardly need more
than a mere statement of the proposition. Police power * * * can not be upheld
to the extent that it will prevent the citizenship of this country making such contracts
as they see proper so long at least as the law ignores coercion, or some of those matters
that might enter into and prevent a free and untrammeled contract * * *.

Arkansas.—The Arkansas Legislature passed an a ct2 in 1899 which
required the redemption in cash, at face value, of all scrip issued as
evidence of indebtedness to laborers. Coal mining companies which
employed less than 20 men under ground were excepted.
The Union Saw Mill Co. was sued by A. & L. Felsenthal to recover in
money the value of store orders issued to its employees.3 The court
quoted the Harbison case 4 and concluded that the a ct5 had the same
object as the Tennessee act, attempted to accomplish it by the same
means, and was a valid statute in so far as it related to corporations.
1 Jordan v. State, 51 T ex. Cr. R . 531-539, June 5, 1907. Interpreted in A ttoy ac R iver Lum ber Co. v.
Payne, 57 Tex. Civ. A p p. 327-331, N ov. 1, 1909.
2 Arkansas.—A cts of 1899, ch. 172, pp. 310, 311.
3 Union Sawmill Co. v. Felsenthal, 85 A rk. 346-357, Feb. 3, 1908. See also Martin-Alexander Lum ber
Co. v. Johnson, 70 Ark. 215-221, Feb. 15, 1902.
4 K noxville Iron Co. v. Harbison, 22 Sup. Ct. 1.
s Arkansas.—A cts of 1901, ch. 161, pp . 309-311; 1901, ch . 101, pp. 167, 168; 1905, ch. 143, pp. 356-358;
1907, ch. 315, p p. 749-751.
Other legislation on this subject has been passed b y Arizona.—A cts of 1903, ch. 58, pp. 86, 87; 1909, ch. 103,pp. 263,264; amended 1912(sp. sess.),ch. 10, pp . 14,15.
California.—A cts of 1897, ch. 170, pp. 231, 232; 1911, ch. 92, pp. 259, 260; amended 1915, ch. 628, p. 1215;
construed in Stimson Mill Co. v. Braun, 136 Cal. 122, Mar. 22,1902.
Colorado.—A cts of 1899, ch . 155, p p. 425-428.
Florida.—A cts of 1915, ch. 6914, pp. 254, 255.
Georgia.—A cts of 1888, ch. 146, p. 48.
Hawaii.—A cts of 1901, ch. 17, pp. 27, 28.
I o w a —A cts of 1888, ch. 55, pp. 78, 79; 1894, ch. 98, pp. 95, 96; 1900, ch. 81, p. 61, Applied in M itchell v.
Burwell, 110 Iowa, 10 (see p. 85).
Kansas.—A cts of 1887, ch. 171, pp. 253, 254; 1899, ch. 152, pp. 316, 317.
Michigan.—A cts of 1897, ch. 221, pp. 278, 279.
Mississippi.—A cts of 1914, ch. 138, p. 181.
Montana.—A cts of 1901, ch. 85, pp. 147, 148.
N eva d a —A cts of 1905, ch. 106, p. 208; 1911, ch. 66, pp. 66, 67.
New Hampshire.—A cts of 1909, ch. 134, pp. 507, 508; 1911, ch. 78, pp. 81,82.
New M exico.—A cts of 1893, ch. 26, pp. 41, 42; 1897, ch. 11, pp. 27, 28; 1907, ch. 44, p. 65.
New Y ork.—A cts of 1889, ch. 381, p. 508; 1897, vol. 1, ch, 415, p. 464; amended 1906, vol. 1, ch. 316, p. 748;
1908, vol. 2, ch. 443, pp. 1246, 1247; 1909, ch. 36, p. 17; ch. 205, p. 322; ch. 206, pp. 322, 323; Consolidated
Laws, 1909, vol. 3, ch. 31, p. 2042.
Oklahoma.—A cts of 1909, ch. 39, pp. 637, 638.
Oregon.—A cts of 1907, ch. 163, pp. 313, 314.
Porto R ico.—A cts of 1908, pp. 171, 172.
Verm ont.—A cts of 1902, ch. 158, pp. 175, 176; 1906, ch. 117, p. 114.
W isconsin.—A cts of 1891, ch. 430, p. 613; 1899, ch. 221, pp. 371, 372.




116

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

SUMMARY.

Despite the confusion and uncertainty which characterize the
foregoing decisions, the review makes it clear that the attitude of the
courts toward regulation of the mode of wage payments is changing.
In the broader interpretations of some State courts and in the Federal
couits it is no longer true that economic conditions are entirely lost
sight of to the advantage of an outgrown legal theory.
It is a far cry from the Godcharles decision in 1886 to the Harbison
case in 1901. The contention that wage-payment regulation is
degrading to the workman—the contention of the Godcharles case—
is so patently untrue that even the statement carries its own contra­
diction. The influence of the unfortunate decision of the Pennsyl­
vania court has long been a barrier to real advance. The Harbison
case shows the new attitude of the courts—a willingness to recognize
the bearing of new economic conditions upon the question of what is
equality of condition in the payment of wages. The following table
shows the present status of the decisions.
D E C ISIO N S ON M O D E O F W A G E -P A Y M E N T L E G IS L A T IO N .

Date.
Title of case.
Month
Year. and day.
1880 Dec. 9
1885 Oct. 31
1886 Oct. 4
1889 N ov. 18
1889 .. . d o .
1890 Feb. 8
1890 Mar. 12
1890 Dec. 3
1892 Mar. 2
1892 June 15
1892 Oct. 6
1892 N ov. 18
1893 Feb.term
1893 Mar. 25
1893 Dec. 27
1894 Dec. 1
1895 Feb. 27
1895 N ov. 7
1896 Feb. 10
1896 May 19
1897 Mar. 30
1897 May 12
1897 July 23
1897 N ov. 7
1898 A ug. 13
1898 Oct. 11
1898 Oct. 24
1899 N ov. 8
1899 N ov. 23
1899 Dec. 9
1900 Sept. 27
1900 N ov. 19
1901 Oct. 21
1902 June 24
1902 N ov. 25
1903 Dec. 9
1904 Mar. 28
1904 May 11
1905 A pr. 4
1907 Jan. 9
1907 June 5

Shaffer & Munn v. Union Mining C o .................
R ow v. H ad d ock......................................................
Godcharles & Co. v. W igem an..............................
State v. G oodw ill....................................................
State v. Fire Creek Coal & Coke C o.....................
Evans v. Kingston Coal Co...................................
Terre Haute, e tc., R . R . Co. v. B aker................
McManahan v. Hanover Coal C o .........................
Terre H aute, etc., R . R . Co. v. B aker................
Frorer et al. v. P eople............................................
State v. Peel Splint Coal C o ..................................
State v. Paint R ock Coal & Coke Co...................
Marriner v. R oper C o .............................................
State v. Loom is........................................................
Agee v. Smith, Q uinby v. Slipper.......................
A vent-B eattyville Coal Co. v. Commonwealth.
H amilton v. Jutte, etc., C o .. ...............................
Cumberland Glass Co. v. S tate............................
Sally v. Berwind-W hite Coal Co..........................
Marsh v. Poston & C o ............................................
In re House B ill N o. 147........................................
R obinson v. Texas Pine Land A ssn ...................
Showalter v. E h lan .................................................
Cumberland Glass Mfg. Co. v. S tate...................
State v. H aun...........................................................
Naglebaugh v. Harder & Hofer Coal Mining Co.
W hitebreast Fuel Co. v. P eople...........................
Harbison v. K noxville Iron C o............................
Lum an v. Hitchens Bros. C o ................................
State v. H aun...........................................................
Commonwealth v. Hillside Coal C o....................
State v. Ferguson et a l...........................................
K noxville Iron Co. v. H arbison...........................
State v. B enn...........................................................
D ixon v. Poe.............................................................
State v. Balch...........................................................
Johnson L ytle & Co. v. Spartan Mills...............
State v. Missouri Tie & Tim ber C o.....................
Leach et al. v. Mo. Tie & Tim ber C o.................
Shortall v. Puget Sound Bridge, etc., C o...........
Jordan v. S tate........................................................




State.

M aryland...........
Pennsylvania. . .
.......d o ..................
W est V irgin ia ...
.......d o ...................
Pennsylvania. . .
Indiana...............
Pennsylvania. . .
Indiana...............
Illinois.................
W est V irg in ia ...
Tennessee...........
North Carolina..
Missouri..............
W ashington-----K e n tu ck y..........
Pennsylvania. . .
New Jersey........
P enn sylvania...
O h io....................
Colorado.............
Texas...................
Pennsylvania. . .
New Jersey........
Kansas................
Indiana...............
Illinois.................
Tennessee...........
M aryland............
Kansas................
K en tu ck y...........
Louisiana...........
Tennessee...........
Missouri..............
Indiana...............
Missouri..............
South Carolina^
Missouri.........-Z.
....... d o ..................
W ashington----Texas...................

Decision.

Constitutional.
Construction.
Unconstitutional.
Do.
Do.
Construction.
Do.
Constitutional.
Construction.
Unconstitutional.
Constitutional.
Unconstitutional.
Construction.
Unconstitutional.
Construction.
Constitutional.
Construction.
Do.
Unconstitutional.
Do.
Constitutional.
Construction.
U nconst itutional.
Construction.
Unconstitutional.
Construction.
Constitutional.
Do.
U nconstitutional.
Do.
Constitutional.
Unconstitutional.
Constitutional.
Do.
Unconstitutional.
Construction.
Do.
Unconstitutional.
Do.
Constitutional.
Unconstitutional.

117

MODE OF WAGE P A Y M E N T S .
D E C ISIO N S ON M O D E O F W A G E -P A Y M E N T L E G IS L A T IO N —Concluded.

Date.
Title of case.
Year.

1907
1908
1908
1909
1909
1911
1913
1914
1915
1916

Month
and day.
Oct.
Teb.
Dec.
A pr.
N ov.
Mar.
Dec.
June
Mar.
Oct.

28
3
8
27
1
4
15
8
16
31

State v. Chehalis Furniture Mfg C o...................
Union Sawmill Co. v. Felsenthal........................
Stewart et al. v. Steams & Culver Lum ber Co.
K y. Coal Min. Co. v. M attingly...........................
A ttoyac R iver Lum ber Co. v. P ayne.................
State v. Nashville, Ch. & St. L. K y. C o ............
Regan v. Tremont Lum ber C o............................
Keokee Consolidated Coal Co. v. T a ylor............
Atkins v. Grey Eagle Coal C o ..............................
Pond Creek Coal Co. v. R iley, Lester & Bros. -

State.

Decision.

W ashington...........
Arkansas................
Florida...................
K en tu ck y..............
Texas......................
Tennessee...............
Louisiana...............
Virginia..................
W est Virginia........
K en tu cky..............

Construction.
Constitutional.
Construction.
Do.
Do.
Unconstitutional.
Constitutional.
Do.
Do.
Construction.

Summary.—Fifteen cases held constitutional; 18 cases held unconstitutional; 18 cases construction
of statute.




CHAPTER VII.—RESTRICTIONS IN THE EMPLOYMENT
CONTRACT.
PAYMENT OF WAGES DUE DISCHARGED EMPLOYEES.

When an employee or laborer is discharged without cause, under
the common law, he is entitled to a notice equal to the period of pay­
ment of his wages. Gradually there has developed a correlative duty
on the part of the employee—he must give similar notice to the
employer when he intends to quit work. The development in the
United States has been toward a progressive modification of the
common-law rule in the interest of the employee.
Connecticut.—A Connecticut law 1passed in 1885 provided that any
person who withheld any part of the wages of an employee because
of an agreement requiring notice before leaving the employment
should forfeit $50. Nolan worked for Whittlesey under an agree­
ment that in case of discharge or leaving, two weeks’ notice would
be given, and if such notice were not given, he who should have
given it was to forfeit to the other the amount of two weeks’ wages.
Nolan left Whittlesey’s service without giving any notice and without
good cause. He assigned his claims to Pierce, who brought an action
for wages due his assignor for labor. It was held by the State supreme
court2 that the wages were retained not by reason of a mere agree­
ment to give notice, but because the plaintiff, in a fair contract upon
a sufficient consideration, had agreed to relinquish them, so that no
wages were due. The court did not say whether the legislature could
make such a withholding illegal, but that the case was “ * * * not
within the letter and * * * certainly not within the spirit of the
statute.”
Texas.—A Texas a c t3 of 1887 provided that if a railroad company
refused to pay its indebtedness to an employee within 15 days of
demand, it should pay in addition to the amount 20 per cent as dam­
ages. Under this law an action was begun by Wilson to recover
wages and damages. On appeal4 the judgment was reversed. The
statute was declared unconstitutional because the constitution of
Texas confined legislation concerning railroads to the duties they owe
to the public as common carriers, and excluded interference with the
employment or payment of their servants.
1 Connecticut.—A cts of 1885, ch. 72, p. 445, repealed b y 1886, ch. 108, p. £12*
2 Pierce v, W hittlesey, 58 Conn. 104-108, Dec. 16, 1889.
3 Texas.—A cts of 1887, ch. 91, p. 72.
4 San Antonio & Arkansas Pass Railway Co. v. W ilson, 4 Tex. Civ. A p p. (W ilson) 565-576, June 25, 1892.

118




RESTRICTIO N S IN T H E E M P L O Y M E N T CONTRACT.

119

A later decision1 was made containing essentially the same fea­
tures, and the court of civil appeals 2 again declared the law uncon­
stitutional upon like grounds.
Maine.—The Maine Legislature 3 in 1887 declared it unlawful in
manufacturing or mechanical pursuits to contract with employees
that they should give one week’s notice of intention to quit under
penalty of forfeiture of one week’s wages.
Arkansas.—The Legislature of Arkansas passed a law 4 in 1889,
which declared that if any railroad company or person doing work
for a railroad discharged an employee, the unpaid wages should at
once become due. If payment was not made at once the wages were
to continue at the former rate up to the beginning of the suit, but not
longer than 60 days. Five years later the State supreme cou rt5
held the law unconstitutional in so far as it affected private individ­
uals, because it was an invasion of the constitutional right “ of acquir­
ing, possessing, and protecting property” ; but in so far as it affected
corporations, it was declared a valid exercise of the right reserved by
the State constitution, “ to alter, revoke, or annul any charter of
incorporation.”
The facts of the case were: Leep employed by a railroad company
was summarily discharged. He demanded his unpaid wages. The
company refused to pay but promised to do so nine days later. Leep
refused to wait and brought suit for the amount due and the penalty.
The State supreme court held that the act contemplated the payment
of the additional sum not as a penalty, but as compensation for the
delay and as punishment for the failure to pay. Delivering the ma­
jority opinion of the court, Judge Battle said in part:
We have thus far spoken of the limitations that can be imposed on the right to con­
tract. We have seen that the power of the legislature to do so is based in every case
on some condition, and not on the absolute right to control. * * *
*
* * If the legislature, in its wisdom, seeing that their employees (of the cor­
porations) are and will be persons dependent on their labor for a livelihood, and una­
ble to work on a credit, should find that better servants and service could be secured
by the prompt payment of their wages on the termination of their employment, and
that the purpose of their creation would thereby be more nearly accomplished, it
might require them to pay for the labor of their employees when the same is fully
performed, at the end of their employment. * * ** e
1 Texas.—A cts of 1887, ch. 91, p. 72.
2 Missouri, K . & T. R y . Co. of Texas v. Braddy, Court of Civil Appeals of Texas, 135 S. W . 1059,1060, Mar.
11, 1911.
3 Maine.—A cts of 1887, ch. 139, p. 122. Construed in Cote v. Bates Mfg. Co., 91 Me. 59-62, Dec. 10,1897.
See also 1911, ch. 39, pp. 33, 34; 1913, ch. 26, pp. 22, 23.
4 Arkansas.—A cts of 1889., ch. 61, p p. 76, 77. See also Acts of 1883, ch. 96, p. 178, an act to regulate the
labor system.
5 Leep v. St. Louis, Iron Mountain & Southern Railway Co., 58 A rk. 407-446, Feb. 3,1894. A dissenting
opinion b y the chief justice held the whole act to be void. St. Louis, Iron Mountain & Southern Railway
Co. v. Leep, 15 Sup. Ct. 1042, Dec. 10, 1894. Case dismissed. N o opinion.
6 Leep v. St. Louis, Iron Mt. & So. R y . Co., 58 A rk. 421, and 436. In Diam ond State Iron Co. v. Bell, 2
Marv. (D el.) 303-306,* February term 1897, before the Superior Court of Delaware, it was held that a rule
made b y a com pany that two weeks’ notice of intention to quit must be given and that the com pany will
give tw o weeks’ notice, is reasonable even when a penalty of forfeiture in the amount of wages due is en­
forced. If the employee assents to this rule, im pliedly or expressly, it binds him.




120

W A G E -P A Y M E N T LEGISLATIO N IN

T H E U N IT E D STATES.

Later Charles Paul sued the St. Louis, Iron Mountain & Southern
Railway Co. to recover $21.80 due him as a laborer and a penalty
of $1.25 per day for failure to pay what was due when he was dis­
charged, as provided in the act. The case passed through the State
courts1 to the Supreme Court of the United States.
The contention was that as to railroad corporations organized prior
to its passage the act was void because it was in violation of the four­
teenth amendment. But the court held 2 that though “ the power to
amend can not be used to * * * deprive the corporation of the
fruits, actually reduced to possession, of contracts lawfully made,”
these corporations were clothed with a public trust, and discharged
duties of public consequence affecting the community at large, and that
this regulation which promoted the public interest in the protection
of employees to a limited extent was properly within the power to
amend charters reserved under the State constitution.3
The act of 1889 was amended by the legislature 4 in 1903 and 1905
to require railroad companies to forward the wages due employees
at the termination of employment to a designated local office of the
road within seven days from the date of a request to do so. On failure
to comply with such request the company was to pay as a penalty
wages from the date of termination of employment until payment
was made. A number of cases5 have arisen under the act but the
power of the legislature to enact it has not been further questioned.
South Carolina.—The Legislature of South Carolina,6 by an act of
1899, which was subsequently amended, made corporations liable
to a penalty of $5 a day for failure to pay the wages due a discharged
laborer within 24 hours after demand, even though the wages were not
1 St. Louis, Iron Mountain & Southern R ailw ay Co. v. Paul; and tw o other cases,64 A rk. 83-96, May 1,
1897.
2 St. Louis, Iron Mountain & Southern R ailw ay Co. v. Paul, 19 Sup. Ct. 419-21, Mar. 6, 1899.
3 Other cases arising under this law but either not questioning the power of the legislature to enact it
or affirming that power are: Kansas City P. & G. R . Co. v. Moon, 66 A rk. 409-14, A p r. 22,1899; Fordyce et
al. v. Gorey, 69 A rk. 344-46, June 1,1901; Louisiana and Northwestern R ailw ay Co. v. Phelps, 70 A rk. 17-19,
N ov. 30, 1901.
« Arkansas.—Acts of 1903, ch. 155, pp . 272,273; repealed b y 1905, ch. 210, p. 538.
5 St. Louis, Iron Mountain & Southern R y . Co. v. Pickett, 70 Ark. 226-229, Feb. 22,1902.
St. Louis, Iron Mountain & Southern R y . Co. v. Brown, 75 A rk. 137-39, A pr. 22, 1905.
Chicago, R . I. & P . R y . Co. v. Langley, 78 A rk. 207,208, Mar. 17, 1906.
W isconsin & A . Lum ber Co. v. Reaves, 82 A rk. 377-381, Feb. 11, 1907.
St. Louis, Iron Mountain & Southern R y . Co. v. Broomfield, 83 Ark. 288-293, June 3,1907.
Stewart & A lex. Lum ber Co. v. Weaver, 83 A rk. 445-4^8, July 8, 1907.
St. Louis, Iron Mountain & Southern R y . Co. v. Walsh, 86 Ark. 147-150, A pr. 27, 1908.
St. Louis, Iron Mountain & Southern R y . Co. v. Bailey, 87 A rk. 132-136, July 6, 1908.
Wisconsin & A . Lum ber Co. v. Thom pson, 87 A rk. 574-576, Oct. 26, 1908.
St. Louis, Iron Mountain & Southern R y . Co. v. McClerkin, 88 A rk. 277-282, N ov. 30, 1908.
Biggs v. St. Louis, Iron Mountain & Southern R y . Co., 91 A rk. 122-128, June 21, 1909.
St. Louis, Iron Mountain & Southern R ailw ay Co. v. Bryant et al., 92 A rk. 425-431, N ov. 22, 1909.
St. Louis, Iron Mountain & Southern R y . Co. v. Hill, 92 A rk. 484-486, Dec. 6, 1909.
Hall v. Chicago R . I. & P. R y . Co., 96 A rk. 634-637, Dec. 5, 1910.
Morgan v. St. Louis, I. M. & S. R y . Co., 106 A rk. 74-79, Dec. 23, 1912.
Largent v. Arkansas N . W . R . Co., 188 S. W . 836,837, Oct. 9, 1916.
« South Carolina—Acts of 1899, ch. 52, p. 82; amended b y 1911, ch. 24, p. 39; 1912, ch. 424, p p . 750, 751;
1915, ch. 112, p . 153.




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121

payable until a specified date thereafter. It was held by the State
supreme court 1 that the act was sustainable as an alteration of the
corporate character of the railway company and did not deny due
process of law or infringe the liberty to contract.
Indiana.—The Legislature of Indiana passed a law 2 in 1911 which
provided that any railroad company should pay employees within
72 hours after the employees voluntarily ceased work or were dis­
charged, and for failure to do so the company was ma*de liable to a
penalty equal to the daily wage of the employee.
Schuler instituted action to recover for services rendered the Cleve­
land, Cincinnati, Chicago & St. Louis Railway Co., and to recover
the amount of penalty provided for in the law. The State supreme
court3 held the statute unconstitutional upon the ground that the
classification attempted was arbitrary and without any valid reason
for its basis. Judge Spencer delivered the opinion of the court4 in
which he said in part:
* * * In brief, no good reason appears for requiring railroads to pay * * *
those who leave their service, while manufacturing corporations and other employers
of labor are exempted from its operation.
* * * When the act was passed there was no statute relating to the time of pay­
ment of wages of railroad employees, but in 1913 (Acts of 1913, p. 47) a statute was
passed requiring all employers of labor to pay their employees semimonthly. If the
act in controversy can be held valid., we would have a present situation where the
faithful employee who is working regularly can only demand payment of his wages
semimonthly, while one who voluntarily quits the service of a railroad company with­
out cause must be paid in 72 hours. There is no just reason for such discrimination.

This decision, when compared with the other decisions by the same
court in the field of wage-payment legislation, exhibits the same line
i W ynne v. Seaboard Air Line R y . Co., 96 S. C. 1-5, Oct. 6, 1913. Construed in Champion v. Hermitage
Cotton Mills, 98 S. C. 418,419, A ug. 24, 1914. Trammel v. Victor Mfg. Co., 102 S. C. 483-487, N ov. 18, 1915;
Burden v. W oodside Cotton Mills, 104 S. C. 435-446, July 3, 1916.
Similar cases are based on the com m on law or a statute of frauds which enacts the common-law provision.
Such are: M oody et al. v. Jones, 37 S. W . (Texas) 379,380, Oct. 22, 1896; W inkler v. Racine Wagon & Car­
riage Co., 99 W is. 184-189, Apr. 12,1898; and Franklin v .T .H . Lilley Lum ber Co., 66 W .V a . 164-169, N ov.
9, 1909.
Statutes on this subject are to be found in the following States:
Massachusetts.—Acts of 1875, ch. 211, pp. 833-834; 1894, ch. 508, pp. 633-655; 1895, ch. 129, p. 122; 1902, ch.
450, pp. 364,365; 1909, ch. 514, p. 763; 1910, ch. 250, pp. 272, 273; 1911, ch. 208, pp. 156, 157.
Washington.—Acts of 1888, ch. 128, pp. 234,235; amended b y 1905, ch. 112, pp. 219,220.
M innesota—Acts of 1891, ch. 92, p. 163; 1915, ch. 29, pp. 36,37; amended ch. 37, pp. 57,58.
Kansas.—Acts of 1893, ch. 187, pp. 270,271; 1911, ch. 219, p. 398.
N ew Jersey—Acts of 1895, ch. 142, pp. 300,301.
Oregon.—Acts of 1907, ch. 163, pp. 313,314.
Arizona.—R ev. Stat. 1901, Pen. C. sec. 615; amended 1912 (ex. sess), ch. 10, pp. 14,15.
Colorado.—Acts of 1901, ch. 55, pp. 128-130.
California.—Acts of 1911, ch. 663, pp. 1268,1269. See In re Crane, p. 91. Amended 1913, ch. 198, p. 343;
1915, ch. 143, p. 299; ch. 433, p. 720.
Louisiana.—Acts of 1912, ch. 250, pp. 556,557; 1914, ch. 62, p. 154; ch. 170, p. 288.
Missouri.—Acts of 1913, p. 175.
W isconsin.—A cts of 1915, ch. 114, p. 107.
a Indiana.—Acts of 1911, ch. 178, pp. 446,447. See also Acts of 1915, ch. 51, pp. 107,108.
3 Cleveland, Cincinnati, Chicago & St. Louis R ailway Co. v. Schuler, 182 Ind. 57-61, June 2, 1914; also
construed in B . & O. S. W . R . Co. v. Burdalow, 57 Ind. A p p . 267,268, N ov. 24, 1914.
< Railway Co. v. Schuler, 182 Ind. 58, 60, 61.




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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

of reasoning which began in 1885 and has continued without much
deviation to the present day. The decisions of the United States
Supreme Court seem to have no weight in this court. If they did
have, the decision in the present case would have held the act constitu­
tional since the theory of classification adopted by the Indiana court
can not be reconciled with that adopted by the United States Su­
preme Court in the Paul1 case.
Idaho.—The Idaho Legislature enacted a law 2 in 1911 which pro­
vided that whenever any employer of labor should discharge an
employee without first paying him the amount of any wages due,
the employee could charge and collect wages in the sum agreed upon
in the contract of employment for each day his employer was in
default until he was paid in full.
Olson was discharged by the Idora Hill Mining Co. and was not
paid his wages due at the time of his discharge. Judgment was ren­
dered for Olson in a district court and the company appealed to the
State supreme court3 on the ground that the law was unconstitu­
tional. The court upheld the law. Judge Budge delivered the
opinion of the court in which he said in part:
But in recent years the trend of authority seems to be that the legislature has the
power to regulate the time of payment of wages to within a reasonable time after the
services have been rendered according to the terms of the contract and after demand,
and thus avoid serious injury and injustice to the working class as a result of undue
delay in the payment of wages. * * *
And as we are of the opinion that it is the province of the legislature, within reason­
able bounds, to determine whether certain legislation is necessary or expedient * * *
we feel justified in holding that * * * (the law) is a legitimate exercise of the
police power of the State; that it is not a violation of the liberty of contract in respect
of labor; that it does not deprive the employer or the employee of the liberty or right
to enter into any contract, nor take property from the employer without due process
of law; and therefore that it is not unconstitutional. * * *
PAYMENT OF WAGES DUE DECEASED EMPLOYEES.

Statutes providing for the payment of wages due deceased employ­
ees are of comparatively recent date. Seven State legislatures have
enacted such laws. The constitutionality of these laws has never
been contested.
The Alabama Legislature passed a law in 1889 which provided that,
“ Whenever an employee of another shall die intestate and there shall
be due him as wages or salary a sum not exceeding one hundred dol­
lars, the debtor may discharge himself from liability therefor by pay­
ing such amount to the widow of the deceased employee or, if there be
no widow, to the person having actual custody and control of his
minor child or children, or either, as the case may be, who may sue
1 St. I ouis, Iron Mountain & Southern Railway Co. v. Paul, 19 Sup. Ct. 419-421, Mar. 6, 1899.
of 1911, ch. 170, p. 565.
s Olson v. Idora H ill Mining Co. (and tw o other cases), 28 Idaho, 504-519, Feb. 5, 1916; also construed in
Fenn v. Latour Creek R . Co., 29 Idaho, 521-526, Oct. 23,1916.

2 Idaho.—A cts




RE STRICTIO N S IN T H E E M P L O Y M E N T CO NTRACT.

123

fbr and recover the same as part of the one thousand dollars in per­
sonalty exempted to them.” 1
Similar provisions are to be found in the laws of Georgia,2 Missis­
sippi,3 Pennsylvania,4 Arizona,5 New Jersey,6 and Delaware.7
REPAYMENT OF WAGES ADVANCED TO EMPLOYEES.

Alabama.—The Legislature of Alabama provided 8 that “ any per­
son who, to defraud his employer, secured advance payment and then
refused to carry out the contract” should “ be punished by a penalty
of twice the damage.”
In a case under this statute 9 the State supreme court held that the
law did not make mere breach of contract a crime, but that the crim­
inal feature consisted in entering into a contract with the intent to
injure or defraud the employer.1
0
The difficulty in proving the intent no doubt suggested the later
amendment, that the refusal of the employee to carry out the con­
tract was to be prima facie evidence of the intent to defraud the
employer.1 On several occasions this amendment has been declared
1
constitutional.1
2
An amendment made four years later1 caused the now famous case
3
of Alonzo Bailey. Bailey was committed for detention for obtaining
$15 under a contract in writing, with intent to defraud his employer.
He sued out a writ of habeas corpus challenging the validity of the
statute. His discharge was refused by a judge of the Montgomery
city court, and the State supreme court1 affirmed the order. The
4
court declared that when a person enters into a contract with the
intention to perpetrate a fraud, he passes over the constitutional
boundary line m respect to the right of free contract. On writ of
error from this court to the Supreme Court of the United States1 it
5
was held that the case was brought prematurely as Bailey had not
exhausted his remedies in the State courts.
1 Alabama.—A cts of 1889, p. 69.
2 Georgia.—Acts of 1898, ch. 25, pp. 91, 92; 1901, ch. 428, pp. 60, 61; 1915, ch. 141, pp. 21, 223 Mississippi.—A cts of 1898 (ex. sess.), ch. 71, pp. 88, 89.
4 Pennsylvania.—Acts of 1907, ch. 162, pp. 201, 202.
6 Arizona.—Acts of 1909, ch. 64, p. 168.
6 New Jersey.—Acts of 1909, ch. 59, p. 82.
7 Delaware.—Acts of 1911, ch. 259, pp. 705, 706.
s A labam a.—A cts of 1885, ch. 85, p. 142. See also England, 50,51 Viet. c. 46, pp. 189-194, September, 1887.
9 E x parte Riley, 94 Ala. 82-85, November term 1891. See also Copeland v. State, 97 Ala. 30-32, November
term, 1892-93; Tennyson v. State, 97 Ala. 78, 79, November term, 1892-93; Jackson v. State, 106 Ala. 136-139,
N ovem ber term, 1894.
10 Dorsey v. State, 111 Ala. 40-45, November term, 1895.
1 Alabama.—Acts of 1901, ch. 483, pp. 120&-1210; 1903, ch. 406, pp. 345, 346.
1
1 Toney v. State, 141 Ala. 120-125, November term, 1904; State v. Thomas, 144 Ala. 77-81, Feb. 8, 1906?
2
State v. Vann, 150 Ala. 66-69, Mar. 2, 1907.
is A labam a.—Acts of 1907, ch. 693, pp. 636, 637.
1 Bailey v. State, 158 Ala. 18-25, June 30, 1908.
4
is Bailey v. State, 211 U. S. 452-459, Dec. 21, 1908.




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W A G E -P A Y M E N T LEG ISLATIO N IN

T H E U N IT E D STATES.

Haying failed to obtain his release on habeas corpus proceedings,
Bailey was indicted and convicted. On appeal to the State supreme
court1the law was again upheld. On writ of error the Supreme Court
of the United States 2 held that the statute made the refusal to per­
form the service without refunding the advance prima facie evidence
of the commission of the crime which the law defines. It is therefore
in conflict with the thirteenth amendment prohibiting involuntary
servitude. The court held that a constitutional prohibition can not
be transgressed indirectly by creating a statutory presumption any
more than by direct enactment. A State can not compel involuntary
servitude in carrying out contracts of personal service by creating a
presumption that the person committing the breach is guilty of
intent to defraud merely because he fails to perform the contract.
A new act3 was passed in 1911 which provided that “ any person
who, with intent to defraud his employer, enters into a contract in
writing for the performance of an act or service and with like intent
obtains from such employer money or other personal property shall
be guilty of a misdemeanor. ”
James Thomas was convicted of entering into a written contract
for the performance of service with intent to defraud his employer.
He appealed to the State court of appeals.4 The court held that the
statute was not invalid as permitting involuntary servitude in viola­
tion of the thirteenth amendment to the Federal Constitution. It
held further that the fact that the defendant was a minor and could
not make a legally binding contract was no defense to a prosecution
for a violation of the statute.
Louisiana.—In Louisiana the legislature5 provided for a fine or
imprisonment if a laborer received advances and failed or refused to
perform the labor for which he contracted or to repay the advance.
The law was held unconstitutional for technical reasons6 and a sub­
sequent legislature amended it to remove the defects.7 Nine years
later the constitutionality of the act was questioned. It was again
declared partially void for technical reasons,8 but a conviction under
it was sustained as within the valid portion. In a later case9 sus­
taining the principle of the law, the State supreme court decided in
substance that no one has the right to money obtained in bad faith
and through willful and wanton methods. The act of one who
imposes upon another, and obtains an amount on representation that
1 Bailey v. State, 161 Ala. 75-83, June 3, 1909.
State, 219 U. S. 219-250, Jan. 3, 1911. See also U nited States v. R eynolds, 235 U. S. 133-150,
N ov. 30,1914.
3 Alabama.—Acts of 1911, ch. 98, pp. 93, 94.
4 Thomas v. State, 13 Ala. A p p. 431-435, June 30,1915.
6 Louisiana.—Acts of 1890, ch. 138, p. 178.
6 State ex rel. Lewis v. Pierson, 44 La. 90-91, January, 1892.
7 Louisiana.—A cts of 1892, ch. 50, p. 71; 1906, ch. 54, pp. 87, 88.
s State v. Goff, 106 La. 270-273, N ov. 18,1901.
» State v. Murray, 116 La. 655-661, Mar. 26, 1906.

2 Bailey v.




RESTRICTIO N S IN T H E E M P L O Y M E N T CONTRACT.

125

he will stay and work and immediately thereafter leaves, falls within
the terms of the act. He can not be heard to complain of involuntary
servitude, for the indictment, averment of which he does not con­
trovert, shows that he has not performed any work at all.
South Carolina.—A section of the criminal code of South Carolina,1
adopted in 1897, provided that a laborer working on shares, or for
wages under contract to labor on farm land, who receives advances
and thereafter without just cause fails to perform the reasonable
service required of him, is liable to prosecution for a misdemeanor.
Three years later this law came before the State supreme court.2
The sole question was the constitutionality of the act. It was sus­
tained. Within less than a year in another case3 the State supreme
court declared the act constitutional, denying that it provided
imprisonment for debt.
The act of 1897 was amended in 19044 by adding the provision that
punishment for a violation did not operate as a discharge of contract.
A case under this statute came before the United States courts three
years later. Application for a writ of habeas corpus to secure their
release was made to the United States District Court, District of
South Carolina,5 by Enoch and Elijah Drayton, Negroes, then on the
chain gang in Charleston County. They were held under a com­
mitment by a magistrate on a charge of violation of a contract for
agricultural labor, on which contract advances had been made. The
constitutionality of the act was denied.
The first question to be considered is whether the act of 1904, * * * is intended
to secure compulsory service in payment of a debt. That appears to be its sole pur­
pose and effect. It provides a coercive weapon to be used by the employer, and
enables him to send to jail or the chain gang any person who may “ fail to perform the
reasonable service required of him by the terms of the said contract,” and the learned
attorney general for the State, while asserting the validity of this act upon grounds
hereinafter to be considered, does not contest the fact that such is its purpose and effect,
and vindicates the same on the ground that such legislation is necessary owing to the
peculiar conditions of agricultural labor in this State.

Since the act was intended to cover agricultural laborers only, the
court held it invalid as a violation of the equality clause of the four­
teenth amendment to the Federal Constitution, and as it also author­
ized the creation of a system of peonage or involuntary servitude, it
was, therefore, in violation of the thirteenth amendment.
A case of the same general nature as we have described was brought
before the State supreme court in the next year. Jack Hollman 6
1 South Carolina.—A cts of 1897, ch. 286, p. 457.
2 State v. Chapman, 56 S. C. 420-422, Feb. 16,1900. See also State v. Williams, 32 S. C. 123-127, Feb. 20,
1890; State v. Sanders, 52 S. C. 580-584, July 7, 1898.
8 State v. Easterlin, 61 S. C. 71-75, July 10,1901.
* South Carolina.—A cts of 1904, ch. 242, p. 428.
6 E x parte Drayton, 153 Fed. 986, 997, M ay 23,1907.
c E x parte Hollm an, 79 S. C. 9-47, Jan. 16,1908.




126

W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

was sentenced to imprisonment. He alleged the act to be uncon­
stitutional and was sustained by the State supreme court. The law
was held contrary (1) to the provision of the State constitution for­
bidding imprisonment for debt except for fraud; (2) to the thirteenth
amendment to the Federal Constitution, providing that neither
slavery nor involuntary servitude should exist; (3) to section 1990
of Revised Statutes of the United States of 1901, passed in pursuance
thereof, known as the peonage statute; and (4) to the fourteenth
amendment to the Federal Constitution, in that it did not bear
equally on the landlord and laborer. The dissenting opinion pre­
sented the economic reasons for laws of this class. A new a c t 1 was
passed which sought to obviate the unconstitutional features of the
former statutes. It was made a misdemeanor to fail to perform the
services after having procured advances with fraudulent intent. No
further cases up to the present time have arisen under this law.
Georgia.—The Georgia Legislature enacted a law 2 in 1903 which
provided that any person who contracted with another to perform
services with intent to procure money and who did not perform such
services should be deemed a common cheat and swindler, and upon
conviction should be punished as prescribed in section 1039 of the
code. A series of cases 3 decided by the court of appeals and the




1 South Carolina.—A cts of 1908, ch. 494, p p. 1080-1083.
2 Georgia.—Acts of 1903, ch. 345, p p. 90, 91.
3 Calhoun v. State, 119 Ga. 312-314, Jan. 12,1904.
Lamar v. State, 120 Ga. 312-314, June 8, 1904.
Lamar v. Prosser, 121 Ga. 153, 154, N ov. 10, 1904.
Oglesby v. State, 123 Ga. 506, July 17, 1905.
Glenn v. State, 123 Ga. 585, A ug. 2, 1905.
Vinson v. State, 124 Ga. 19-22, N ov. 8, 1905.
Banks v. State, 124 Ga. 15-19, N ov. 8, 1905.
W ilson v. State, 124 Ga. 22-24, N ov. 8, 1905.
W atson v. State, 124 Ga. 454, 455, Dec. 21, 1905.
Townsend v. Broach, 124 Ga. 69-72, N ov. 9,1905.
M cCoy v. State, 124 Ga. 218-223, N ov. 13, 1905.
Taylor v. State, 124 Ga. 798-801, Feb. 15,1906.
Johnson v. State, 125 Ga. 243-247, May 10, 1906.
Bridges v. State, 126 Ga. 91, July 27, 1906.
Sterling v. State, 126 Ga. 92, July 28, 1906.
Howard v. State, 126 Ga. 538, 539, A ug. 17,1906.
Dyas v. State, 126 Ga. 556, 557, N ov. 7, 1906.
Mulkey v. State, 1 Ga. A p p. 521-527, Mar. 28,1907.
Patterson v. State, 1 Ga. A p p . 782-789, May 9, 1907.
H arwell t;. State, 2 Ga. A p p . 613-619, Oct. 14, 1907.
Mason v. TerreH, 3 Ga. A p p. 348-355, Jan. 15, 1908.
Sanders v. State, 7 Ga. A p p. 46, 47, N ov. 9, 1909.
Brown v. State, 8 Ga. A p p . 211-213, Sept. 6,1910.
W ilson v. State, 138 Ga. 489-495, A ug. 14,1912.
Thorn v. State, 13 Ga. A p p . 10-13, June 25,1913.
Sheffield v. State, 13 Ga. A p p . 78, July 8,1913.
Johnson v. State, 13 Ga. A p p . 586-590, Oct. 7, 1913.
Mobley v. State, 13 Ga. A p p . 728-733, Oct. 30, 1913.
Hudson v. State, 14 Ga. A p p . 490-492, A pr. 18, 1914.
Paschal v. State, 16 Ga. A p p . 370-375, May 17,1915.
Beeman v. State, 17 Ga. A p p . 752,753, Mar. 24,1916.

RESTRICTIO N S IN

T H E E M P L O Y M E N T CONTRACT.

State supreme court upholds the constitutionality of this law.
Vance v. State,1 it is said:

127

In

If the act of 1903 sought to make it penal to violate a contract of fail to pay a debt, it
would be patently unconstitutional. But this court has held that such act does not
violate the constitutional inhibition against imprisonment for debt; the legislative
purpose being, not to punish for a failure to comply with the obligation, but for the
fraudulent intention with which the money or other thing of value is procured * * *.

North Carolina.—The Legislature of North Carolina passed such
an act2 in 1889, and amended3 it in 1891. The law as amended pro­
vided that any person who with intent to cheat or defraud another
should obtain advances under promise to labor for such person would
be guilty of a misdemeanor. The constitutionality of this statute
was upheld by the State supreme court4 in 1892.
Another a c t 5 passed in 1905 made it a misdemeanor in certain
counties for a cropper to procure advancements from his landlord for
the purpose of making a crop on his land, and then willfully
to abandon the crop without good cause before paying for the
advances. This statute was* held unconstitutional,6 on the ground
that it contravened the constitutional provision prohibiting imprison­
ment for debt.
1 Vance v State, 128 Ga. 661-669, July 11, 1907.
See also—
Millinder v. State, 124 Ga. 452, 453, Dec. 21, 1905.
Presley v. State, 124 Ga. 446-452, Dec. 21, 1905.
Abrams v. State, 126 Ga. 591-594, N ov. 8, 1906.
Moseley v. State, 2 Ga. A p p . 189-192, June 20,1907.
Starling v. State, 5 Ga. A p p. 171-174, N ov. 10, 1908.
W ells v. State, 6 Ga. A p p. 162, 163, May 4, 1909.
Coleman v. State, 6 Ga. A p p. 398-403, June 29, 1909.
Latson v. W ells, 136 Ga. 681-687, Aug. 17, 1911.
Solomon v. State, 14 Ga. A p p . 115, Dec. 9,1913.
Lewis v. State, 15 Ga. A p p . 405-415, N ov. 17,1914.
Jones v. State, 15 Ga. A p p . 642-644, Jan. 20, 1915.
2 North Carolina.—Acts of 1889, ch. 444, p p . 423,424.
3 North Carolina.—A cts of 1891, ch. 106, p p. 98, 99.
4 State v. Norman, 110 N . C. 4*84-489, February term, 1892.
See also—
State v. Howard, 88 N . C. 650-653, February term, 1883.
State v. W hidbee, 124 N . C. 796-798, February term, 1899.
State v. Torrence, 127 N . C. 550-555, September term , 1900.
State v. Robinson, 143 N . C. 620-631, A pr. 3, 1907.
5 North Carolina.—A cts of 1905, ch. 297, p p. 333,334. See also Acts of 1893, ch. 309, p. 311; an act to
protect minors.
e State v. Williams, 150 N . C. 802-804, Mar. 10, 1909.
A number of additional States have similar provisions on their statute books, but their constitutionality
has not been questioned:
Mississippi.—Acts of 1900, ch. 101, p. 140.
M innesota—Acts of 1901, ch. 165, p p . 212-213.
Michigan.—Acts of 1903, ch. 106, pp. 128,129.
New Mexico.—Acts of 1905, ch. 37, p. 79.
Arkansas.—Acts of 1907, ch. 271, pp. 620-622; amended 1909, ch. 28, pp. 70,71; ch. 319, p p. 941, 942.
Florida.—Acts of 1907, ch. 5678, p. 182; 1913, ch. 6528, p . 417.
N orth Dakota.—A cts of 1907, ch. 208, p. 338.
Philippine Islands.—Acts of 1911-12, ch. 2098, pp. 31,32.
The laws of other countries do not so generally make provisions on this point. W hen they are found,
it is sometimes in the law governing the labor contract or m ore specifically in a wage-payment act. Russia
has such a law, June 13-15, 1886; Mar. 14-26, 1894; and N ew South Wales, Mar. 11, 1857.




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W A G E -P A Y M E N T LEG ISLATIO N IN T H E U N IT E D STATES.

DEDUCTIONS FROM WAGES. 1

Another legislative restriction on the employment contract seeks to
protect the earnings of the laborer against arbitrary deductions for
imperfect work or forced contributions for the maintenance of hos­
pitals, libraries, or other benefits. An allied abuse is refusal to pay
wages with the intent of obtaining a discount.
Massachusetts.—The Massachusetts Legislature provided in 18872
that “ the system of grading their work now or at any time hereafter
used by manufacturers shall in no way affect or lessen the wages of a
weaver except for imperfections in his own work; and in no case shall
the wages of those engaged in weaving be affected by fines or other­
wise, unless the imperfections complained of are first exhibited and
pointed out to the person or persons whose wages are to be affected;
and no fine or fines shall be imposed upon any person for imperfect
weaving unless the provisions of this section are first complied with
and the amount of the fines are agreed upon by both parties.”
An amendment was passed in 1891 and under the act as amended
a case involving the constitutionality of the statute was tried. Field­
ing was a weaver in the employ of Perry, a woolen manufacturer,
under an agreement allowing deductions to be made for imperfect
weaving. On one occasion Perry deducted 40 cents from the wages
of Fielding because of some imperfection in his work. For this he
was indicted for violating the act of 1891. The State supreme court3
held the act unconstitutional, as an interference with the right to
make reasonable and proper contracts. Justice Holmes dissented on
the ground that the law did not interfere “ with the right of acquir­
ing, possessing, and protecting property any more than the laws
against usury or gaming.” New acts and amendments 4were passed
from time to time by the legislature.
A later statute 5which contained the essential features of the earlier
acts was passed. This was held 6 to be constitutional if construed as
1 See F . J. Stimson: Handbook to the Labor Law of the United States, N ew York, 1896, p. 81, sec. 20.
U . S. Industrial Commission R eport, Washington, D . C., 1900, vol. 5, p . 55, art. c., sec. 1.
L . D . Clark: The Law of Em ploym ent of Labor, New York, 1911, p. 50, sec. 21.
P . A . Speck: The need of a socialized jurisprudence, in American Journal of Sociology, January, 1917,
vol. 22, N o. 4, p p. 503-518.
2 Massachusetts.—Acts of 1887, ch. 361, pp. 979, 980; 1891, ch. 125, pp. 735, 736.
Similar provisions will be found in the laws of other countries as follows: England.—37-38 Viet. c. 48, pp.
272, 273, July 30,1874; 38,39 Viet. c. 90, pp. 1016-1022, Aug. 13, 1875; 50,51 Viet. c. 46, pp. 189-194, Sept. 16,
1887; 59, 60 Viet. c. 44, pp. 360-363, Aug. 14, 1896. Quebec.—5 Geo. V , c. 71, p. 166, 1915. Also in
Switzerland, France, and Holland.
3 Commonwealth v. Perry, 155 Mass. 117-125, Dec. 1,1891. See also Commonwealth v. Potomska Mills
Corp., 155 Mass. 122, 123, Dec. 1,1891.
4 Massachusetts.—Acts of 1892, ch. 410, p. 451; 1894, ch. 508, pp. 633-655; 1895, ch. 144, p. 133; 1898, ch. 505,
p. 471; 1901, ch. 370, pp. 282, 283; 1905, ch. 304, pp. 219, 220; 1909, ch. 514, p. 763. Gallagher v. Hathaway
Mfg. Co., 172 Mass. 230-233, N ov. 23, 1898, interprets the act of 1894, b ut does not pass on constitutional
questions.
5 Massachusetts.—Acts of 1911, ch. 584, p. 607. This act does not repeal the act of 1909, ch. 514, p. 763.
6 Commonwealth v. Lancaster Mills, 212 Mass. 315-318, June 18,1912.




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129

forbidding arbitrary fines only, or such as related to defects for which
the workman was not properly responsible. If construed as forbid­
ding all deductions for imperfections it would be an invalid limitation
on the right of contract.
Indiana.—An a c t 1 of the Indiana Legislature passed in 1885 de­
clared it unlawful for any corporation operating railroads to exact
from its employees, without first obtaining written consent, any por­
tion of their wages for the maintenance of a hospital, reading room,
library, gymnasium, or restaurant.
* Illinois.—The Legislature of Illinois 2 in 1891 made it unlawful to
make deductions from wages of workmen except for lawful money,
checks, or drafts, and such as might be agreed upon for hospital relief
funds for sick or injured employees. The law authorized the recov­
ery of deductions and no set-offs or counter claims were allowed.
These provisions did not come before the State supreme court for
13 years. Then the court declared that they were unconstitutional
as class legislation and an interference with the privilege of con­
tracting.
Harrier was a miner in the employ of the Kellyville Coal Co.3which
kept a general store. He became indebted to the company for gro­
ceries and household supplies. The company owed him wages and
he brought an action to recover them. The only controversy was
as to the right of the company to set off the amount due from Harrier
against his demand for wages. Harrier disputed the right to set off
because of the act cited. But the court held the act unconstitutional,
because the legislature had no power to provide that one may not sell
property to another, and not agree with the purchaser that the latter
shall wofck in payment.
An a c t4 of 1903 made it unlawful to withhold any portion of the
wages of employees for the purpose of paying the same at some future
time as a present or gratuity for satisfactory service.
Ohio.—The Ohio Legislature 5 made it unlawful for any railroad
company to compel its employees to join any relief association. Cox,
an employee of a railroad company, voluntarily became a member of
the relief department of the company, and thereby contracted that
in case of accident the acceptance thereafter of relief from the relief
fund would release the company from liability for damages. In an
action to recover for injuries, the company as one of its defenses set up
the acceptance by Cox of the benefits provided by the relief depart­
1 Indiana.— Acts of 1885, ch. 31, p. 123. The act was indirectly involved in W abash Railroad Co. v. Kel­
ley, 153 Ind. 119-134, Dec. 16, 1898.
2 Illinois.—-Acts of 1891, pp. 212, 213.
3 Kellyville Coal Co. v. Harrier, 207 111. 624-629, Feb. 17, 1904.
4 Illinois.— Acts of 1903, pp. 198, 199.
5 Ohio.— Acts of 1890, pp. 149,150; 1891, pp. 442, 443; prohibit withholding of wages or imposing of a fine
for imperfect work.

105598°— 18— Bull. 229------- 9




1 30

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

ment. The State supreme court1 held the defense good. It was
asserted that the act was unconstitutional because it struck down
the voluntary right to contract.
Tennessee.—The Tennessee Legislature 2 declared it unlawful for
any manufacturer, firm, company, or corporation to in any manner
interfere with any employee in his right to select his own family
physician, and provided a penalty for violation.
Massachusetts.—In Massachusetts 3 a statute expressly permits the
establishment of relief societies for the employees of railroads, street
railway companies, and steamboat companies.
Maryland.—A Maryland statute declares it unlawful for any
railroad company doing business in the State to withhold any part
of the wages of its Employees for the benefit of any relief association
or its members.4
Michigan and Nevada.—The Legislature of Michigan5 in 1895
declared it to be unlawful for any company or corporation to force
employees to insure in any particular company.
It is unlawful for any employer of labor in Michigan to require
an employee to agree to contribute directly or indirectly to any
fund for charitable, social, or beneficial purposes.6 The same pro­
hibition applies to any person, contractor, firm, company, corpor­
ation, or association in Nevada. 7
Several States have adopted statutes which prohibit indirectly
the establishment by railroads or other employers of labor, of relief
or benefit funds to which the employee is compelled to contribute,
and forced contributions from employees in other matters.8
1 P. c. C. & St. L . R y . Co. v. Cox, 55 O. S. 497-517, Dec. 15,1896.
See also—
Crall v. Railway Co., 3 O. C. D. 696-698, January term, 1893.
Farrow v. Railway Co., 7 O. N . P. 606, 1895.
Shaver v. Pennsylvania, 71 Fed. 931-939, Jan. 28,1896.
Pierce v. V an Dusen, 78 Fed. 693-708, Feb. 2,1897.
Cullison v. Railway Co., 7 O. D , (N . P .) 269-273, 1897.
Caldwell v. Railway Co., 14 O. D. (N . P .) 375-384, January term, 1904.
2 Tennessee.— Acts of 1889, ch. 259, pp. 485, 486; 1899, ch. 338, pp. 781, 782.
3 Massachusetts.— Acts of 1882, ch. 244, pp. 191,192; 1886, ch. 125, pp. 97, 98; 1890, ch. 181, p. 150.
4 Maryland.— Acts of 1890, ch. 443, p. 472; 1902,ch. 412,pp. 593,594; 1910, ch. 153, pp. 484-492; 1912, ch.445,
pp. 624-626; authorizes deductions from miners’ wages for miners ’ cooperative insurance fund, and ch.
837, pp. 1624-1630, for fund for compensation of workmen for injuries.
5 Michigan.— Acts of 1895, ch. 209, pp. 384, 385.
6 Michigan.— Acts of 1893, ch. 192, p. 309.
7 Nevada.— Acts of 1903, ch. 84, p. 113; 1905, ch. 106, p. 208. See Illinois Central R . R . Co. v. Gheen, 112
K y . 695-705, Feb. 12,1902.
s United States.— Acts of 1898, p. 3205, sec. 10.
Arkansas.— Acts of 1899, ch. 172, pp. 310, 311.
California— Acts of 1901, ch. 158, p. 480; 1905, ch. 1005, pp. 666, 667; 1915, ch. 667, pp. 1310,1311.
Hawaii.— Acts of 1901, ch. 17, pp. 27, 28.
Pennsylvania.— Acts of 1901, ch. 290, pp. 596, 597; 1907, ch. 206, p. 270; employers of aliens to deduct
taxes from wages. Construed in Commonwealth v. Bethlehem Steel Co., 25 Pa. C. C. 225-233, Dec. 20,1901;
Commonwealth v. Rochester & Pitts. C. & I. Co., 26 Pa. C. C. 481-4^5, Dec. 20, 1901; Acts of 1913, ch.
468, pp. 1038,1039.
Louisiana.— Acts of 1908, ch. 31, p. 33; 1912, ch. 240, pp. 536, 537; interest on loans to employees lim­
ited to 8 per cent. Acts of 1914, ch. 62, p. 154.
New Y o rk .— Acts of 1914, vol. 2, ch. 320, pp. 915, 916.
Oregon.— Acts of 1915, ch. 329, p. 524.
South Carolina.— Acts of 1916, ch. 270, pp. 938, 939.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

131

New Jersey.—Any corporation doing business in New Jersey is
prohibited from holding back any part of the wages of employees
under pretense of establishing a fund for their relief or assistance
when sick or disabled.1
REFUSAL TO PAY WAGES.

In Minnesota, any person who willfully refuses to pay the full
amount of wages owed is guilty of extortion, and shall be punished by
imprisonment in the State prison not exceeding five years.2 California
declares it a felony for any person to take for his own use any por­
tion of the wages due laborers employed by him on public work.3
Every person in Indiana 4 who fails to pay employees for their
labor is liable to the employee for the full value of the labor, plus
a penalty of $1 for each succeeding day, not exceeding double the
amount of wages.
In Montana 5 every person who shall willfully refuse to pay wages
due is guilty of a misdemeanor.
REDUCTION OF WAGES.

Statutes which require a prior notice of a reduction of wages are
not of importance, because of the rule that an agreed rate of wages is
in effect until a different rate is assented to by both parties.6 Never­
theless several States have laws seeking to compel the employer to
give notice of a change in rate of wages. There are no cases arising
under these laws. In 1887 the Texas Legislature declared 7 that
1 New Jersey.— Acts of 1887, ch. 147, p. 231; amended by 1891, ch. 212, p. 404.
2 Minnesota.—Acts of 1891, ch. 92, p. 163.
3 California.— Acts of 1901, ch. 158, p. 480. Held unconstitutional because of defective title in Lewis v.
Dunne, 134 Cal. 291-300, Oct. 10, 1901. Reenacted, Acts of 1905, ch. 1005, p. 667; 1915, ch. 143, p. 299.
4 Indiana.— Acts of 1899, ch. 124, p. 194; 1911, ch. 68, p. 111.
Similar legislation will be found in—
Alabam a.— Acts of 1861, ch. 74, pp. 67, 68; prescribes when set-offs are allowable.
W est Virginia.— Acts of 1887, ch. 63, pp. 192-194.
W yom ing.— Acts of 1890-91, ch. 82, p. 356; set-off not allowed except for money advanced. 1913, ch. 89,
pp. 98, 99, changing check numbers on mine cars.
Colorado.— Acts of 1899, ch. 124, p. 310; money due to contractors to be withheld to satisfy claims of lab­
orers on public works.
Hawaii.— Acts of 1901, ch. 17, p. 27.
Louisiana.— Acts of 1908, ch. 31, p. 33; 1910, ch. 42, p. 67; requires interest on money deposited by em­
ployees as a guaranty for faithful performance.
Washington.— Acts of 1909, ch. 249. p. 998.
Mississippi.— Acts of 1912, ch. 141, p. 146.
5 Montana.— Acts of 1907, ch. 144, p. 372.
e L . D . Clark: The Law of the Em ploym ent of Labor, New York, 1911, p. 48.
7 T e xas.--A cts of 1887, ch. 30, p. 20.
Similar provisions are incorporated in the laws of the following jurisdictions:
Missouri.— Acts of 1885, p. .82; applying to all corporations.
Ohio.— Acts of 1893, pp. 55, 56; provides no change in the wages of miners shall be made without 24 hours’
notice.
United States.— Acts of 1898, p. 3205; provides when receivers have been appointed by the Federal
courts for a railroad, no reduction of wages to be made without authority of court and notice to employees.
Indiana.— Acts of 1899, ch. 124, p. 194; a change in the current rate of wages paid is prohibited without a
written notice given to each employee so affected 24 hours before such change shall take place. Pro­
nounced unconstitutional in Republic Iron & Steel Co. v. State, 160 Ind. 379. (See pp. 74,75.)




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WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

persons in the employment of a railway company should be entitled
to 30 days’ notice before their wages could be reduced. For a vio­
lation of the provisions of the law the railway company was required
to pay each employee affected one month’s extra wages.
This statute has not been before the courts of the State but a
case upon the rule of the common law came before the State supreme
court1 in 1909. It was held that an employer could not reduce an
employee’s wages by a general reduction of the wages of all employees
without actual notice to every employee.
PLACE OF PAYMENT OF WAGES.

“ No wages shall be paid to any workman at or within any public
house, beer shop, or place for the sale of any spirits, wine, cider, other
spirituous or fermented liquors, or any office, garden, or place belong­
ing thereto, or occupied therewith save and except such wages as
are paid by the resident, owner, or occupier of such public house, beer
shop, or place to any workman bona fide employed by him. ”
This provision2 is found in an English act. An earlier act3
made such a prohibition apply only to the coal and metal mining
industries. Later its scope was widened to include all workingmen.
Similar provisions can be found in the legislation of most continental
countries.4
In the United States only two States have adopted a similar rule.
California and Nevada 5 have a law which makes it a misdemeanor
to pay an employee his wages while in any saloon, barroom, or other
place where intoxicating liquors are sold at retail, unless the employee
is employed there. There is a provision in an Arkansas law relating
primarily to the payment of wages to discharged employees, which
allows the discharged employee of a railroad company to designate
any station where a regular agent is in charge as a place of payment
of the wages due him at the time of discharge.6 In Wisconsin all
corporations or individuals paying wages by time checks or other
California.— Acts of 1911, ch. 663, p. 1268. ‘ ‘Every person who employs laborers upon public works and
who takes, keeps, or receives for his own use any part or portion of the wages due to any such laborers from
the State or municipal corporation for which such work is done, is guilty of a felony. ”
Colorado.— Acts of 1915, ch. 180, p. 578; all employers and employees to give 30 da ys’ notice in
change of wages.
1 Pennington v. Thompson Bros. Lumber Co. 122 S. W . (Tex. Civ. A p p .) 923-925, N ov. 24, 1909.
2 England.— 35, 36 Viet. ch. 76, p. 488, Aug. 10, 1872; 1, 2 Geo. V , ch. 50, p. 289, Dec. 16, 1911.
3 England.— 55 Geo. I l l , ch. 19, p. 64, Mar. 23, 1815; 46, 47 V iet. ch. 31, pp. 98-99, Aug. 20, 1883.
4 Austria.— Law Dec. 20,1859; amended Mar. 15, 1883; Belgium, Aug. 16, 1887, sec. 4; Germany, June 1,
1891; France, Ontario, 8 Edw . V I I , ch. 21, Apr. 14, 1908.
&California.— Acts of 1901, ch. 221, p. 660 (1913, ch. 198, p. 343, provides for the payment of wages in
seasonal occupations within the State and before the commissioner of the bureau of labor statistics if
desired).
Nevada.— Acts of 1911, ch. 201, p. 406. See United States Bureau of Labor Statistics Bui. N o. 211,
Jan., 1917, pp. 29-31.
6 Arkansas.— Acts of 1905, ch. 210, p. 538.
South Carolina.— Acts of 1905, ch. 487, p. 962; wages earned within the State payable within the State.
Massachusetts.— Acts of 1911, ch. 249, pp. 212, 213; wages to be paid before close of workday.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

133

paper than legal money shall make such checks or paper payable
in some designated place of business in the county in which the work
was performed or at the office of such corporation or individual, if
within the State of Wisconsin, or at any bank within said State.1
PROTECTION OF MINE LABOR.

Practically every State in the United States where coal is mined
has made provision to secure correct weighing. Another frequent
provision requires that where the payment of miners is by the weight
of coal mined the coal must be paid for before being passed over any
screen, and the full weight credited to the miner.
It is urged by the mine operators against these laws that payment
for coal before screening, that is “ run of mine” coal, tends to cause
the miners to be careless and to break up the coal unnecessarily.
The weight of opinion seems to be, however, that the opportunities
for unfair methods of screening make it desirable that payment should
be on the basis of unscreened coal. Among the recommendations
urged by the United States Industrial Commission was one that
provisions should be adopted “ for the fair weighing of coal at mines
before passing over a screen or other device, in order that the miner
may be compensated for all coal having a market value, and the miners
should have the privilege of employing a checkweighman at their
own expense.” 2 But the laws to establish this standard have not
been favorably received by the courts.

W
EIGHING COAL AT MINES.3
Elinois.— The Illinois Legislature passed an act4 providing that
where coal was mined and paid for by weight the operator should
keep standard scales and correct records of weights obtained on the
scales. A representative of the coal miners was to have access to
the scales and the records. This law was sustained by the State
supreme court5 on the ground that it did not take away from the
miners the right to contract for payment by any other method than
weight and that the stipulations as to the scales were justified to
1 Wisconsin.— Acts of 1899, ch. 221, pp. 371, 372.
A n employee who enters an employment under a contract which specifically provides that his compen­
sation shall be payable only at a certain place is bound to make demand for it at that place. On a contract
for services to be paid for ‘ ‘ out of the store ” ofa third person, it was held that an action might be maintained
without proof of a demand of payment at the store. (Bragdon v. Poland, 51 Me. 323-325, 1862.) Where
the place of payment for services is not specified in a contract which is made in one State and is to be per­
formed in another, a demand for payment must be made in the former State, if the employers have their
domicile there. Isaacs v. McAndrew, 1 Mont. 437-457, January term, 1872. C. B . Labatt: Master and
Servant, Rochester, N . Y ., 1913, vol. 11, pp. 1253, 1254.
2 Final report of the Industrial Commission, 1902, vol. 19, p. 949. Washington, D . C.
3 Anthracite Coal Strike Commission Report, U . S. Bureau of Labor Statistics Bui. N o. 46, M ay 1903,
pp. 483-486, 494, 495.
4 Illinois.— Acts of 1883, p. 113.
6 Jones v. People, 110 111. 590-594, Sept. 27, 1884. Construed in Reinecke v. People, 15 111. A pp. 241-247,
August term, 1884. The same question arises in the cases of Gartside v. People, Knecht v. People, Skillett
v. People, Daniels v. People, and Toch v. People, as in foregoing case.




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WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

prevent fraud. An amendment to the act1 was passed two years
later that all contracts for the mining of coal in which the weighing
of coal, as provided for in the acts, was dispensed with should be null
and void. Following this amendment arose the case of Millett v.
People.2 Millett was convicted of failing to furnish and place a
track scale of standard measure upon the railroad track adjacent to
the coal mine which he superintended. The company did not sell
coal by weight at its mines, and it had contracts with all the men
employed in its mine to mine coal at a certain price per box.
The State supreme court held that since the coal was not mined
by weight, the requirement of scales could not be made.
What is there in the condition or situation of the laborer in the mine to disqualify
him from contracting in regard to the price of his labor, or in regard to the mode of
ascertaining the price?

the judge asks.
police power—

If the sections of the law are justified under the

they may be maintained on that ground; but it is quite obvious that they do not.
So far as the owner or operator of a mine shall contract for the mining * * * by
weight, we see no objection to the statute as imposing upon him the duty of procuring
scales * * * But we do not think he can be compelled to make all his contracts
* * * to be regulated by weight.3

Following this decision, the legislature passed a new act4 pro­
viding that all operators should weigh the coal mined at the mines,
and that the record of weights should be open to the miners. The
operators again objected. The Consolidated Coal Co. shipped its
coal over the Wabash Railroad. It also sold coal to the railroad,
and the last coal cars up each day were used for this purpose. They
were not weighed, but the miners were credited with them on the
average of the weights to the credit of respective miners for the day,
and the miners never objected.
William Harding was convicted of a violation of the act requiring
weighing of coal at the mines. The supreme court annulled the
law,5 declaring:
The right to enact such a statute does not arise out of the police power, where much
latitude is allowed in determining what may tend to insure the comfort, safety, or
welfare of society; and it is not authorized * * * by the constitution, providing
for laws to secure safety to coal miners.
It seems that a law which deprives men engaged in the business of mining from
contracting with each other for the purpose of ascertaining the weight of the coal
mined or the amount due them, in any manner mutually satisfactory, can not be
sustained * * * The act takes away the freedom of contracting by the parties
for the ascertainment of the weight of coal, except by a certain method, and, in our
opinion, it is unconstitutional.
1 Illinois.— Acts of 1885, pp. 221, 222.
2 Millett v. People, 117 111. 294-305, June 12, 1886.
3 Millett v. People, 117 111. 302, 303, 305.
4 Illinois.— Acts of 1887, pp. 235-237 (repealing the act of 1883 as amended in 1885).
s Harding et al. v. People, 160 111. 459-467, Mar. 30, 1896.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

135

A new law was passed, which has been amended several times.1
Colorado.—In response to an inquiry submitted by the House of
Representatives of Colorado to the supreme court as to the consti­
tutionality of proposed legislation regulating the weighing of coal at
mines, the court returned an opinion 2 that in so far as the proposed
legislation attempted to deprive persons of the right to fix, by con­
tract, the manner of ascertaining compensation for mining coal, it
violated the fourteenth amendment to the Constitution of the United
States and the Colorado Bill of Rights. Two years later an act3 was
passed covering this point, which has since been strengthened.
Tennessee.—In Tennessee the legislature passed a law 4 giving the
right to miners to engage a competent checkweighman to be present
at the weighing and measuring of coal. He was also given power to
examine the scales and inspect the size of cars. The construction
of this statute was asked of the State supreme court in two cases
decided on the same day. In the first5 the court held that a custom
assented to by express contract by most of the miners employed,
and known to and acquiesced in by all, that the company should
allow only 2,500 pounds per carload, when its weight, in fact, ex­
ceeded that limit, was no defense in a criminal suit under section 3
of this chapter on the ground that parties may not by contract dis­
pense with the criminal law. In the second case,6 it Was held that a
president of a mining company who notifies the miners that he will
shut down the mine unless the miners discharge the checkweighman
hired by them does not violate the provisions of this act. Untested
laws are cited below.7
1 Illinois.— Acts of 1899, p. 321; 1907, p. 270; general revision act, 1911, p. 416.
2 In re House Bill N o. 203, 21 Colo. 27-29, Mar. 1, 1895.
3 Colorado.— Acts of 1897, ch. 37, pp. 137, 138; 1901, ch. 91, pp. 235, 236; 1913, ch. 56, pp. 191, 192.
4 Tennessee.— Acts of 1887, ch. 206, p. 336, 337; amended 1899, ch. 338, pp. 781, 782.
&Smith v. State, 90 Tenn. 575-579, Oct. 13, 1891.
6 State v. Jenkins, 90 Tenn. 580-584, Oct. 13, 1891.
7 Laws regulating the weighing of coal are found in:
Pennsylvania.— Acts of 1875, ch. 45, pp. 38-39; 1883, ch. 46, pp . 52-54; 1897, ch. 224, p. 286; 1907, ch ,206,
p. 270; 1913, ch. 468, pp. 1038,1039.
Maryland.— Acts of 1878, ch. 157, pp. 254, 255; 1898, ch. 34, p. 115; 1902, ch. 124, pp. ICO, 161.
Missouri.— Acts of 1885, p. 208; 1887, p. 218; 1895, p. 229; 1899, pp. 304, 311.
Kentucky.— Acts of 1885-86, ch. 1251, p. 204; 1906, ch. 108, p. 419.
Washington.— Acts of 1887-88, ch. 21, p. 43.
Iowa.— Acts of 1888, ch. 53, p. 76.
New Mexico.— Acts of 1888-89, ch. 126, pp. 299, 300.
W yom ing.— Acts of 1890, ch. 80, p. 350; 1911, ch. 74, pp. 98-100; 1913, ch. 16, p. 11.
Indiana.— Acts of 1891, ch. 49, pp. 57, 58; 1905, ch. 50, p. 69.
W est Virginia.— Acts of 1891, ch. 82, p. 210; 1901, ch. 20, p. 71.
Alabam a.— Acts of 1892-93, ch. 266, p. 611; 1894-95, ch. 140, pp. 245, 246; 1896-97, ch. 486, p. 1100; 1911,
ch. 493, pp. 531, 532.
Kansas.— Acts of 1893, ch. 188, pp. 271, 272; 1903, ch. 544, pp. 816, 817; 1905, ch. 214, p. 305.
U tah.— Acts of 1897, ch. 19, pp . 34, 35.
Ohio.— Acts of 1898, p. 163; amended 1910, p. 85.
Arkansas.— Acts of 1899, ch. 102, pp. 165, 166; 1901, ch. 114, p. 181; 1905, ch. 225, p. 570.
Michigan.— Acts of 1899, ch. 57, p. 94; 1905, ch. 100, p. 143; 1913, ch. 177, p. 335.
Montana.— Acts of 1901, ch. 25, pp. 65, 66; 1907, ch. 133, p. 340; 1911, ch. 120, p. 278.
Massachusetts.— Acts of 1902, ch. 159, p . 114; ch. 453, pp . 367, 368.
Texas.— Acts of 1907, ch. 178, p. 334.
Oklahoma.— Acts of 1907-8, ch. 54, p. 522.




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WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

SCREENING-1
A West Virginia law required 2 that all coal mined and paid for
by weight should be weighed in the car in which it was removed
from the mine before it was screened, and should be paid for accord­
ing to that weight. This statute with one 3 passed during the same
session which prohibited the use of scrip in the payment of wages of
miners was at once attacked in the courts. The Peel Splint Coal Co.
was found guilty of violating these acts. In the supreme court of
appeals it was held 4 that as applied to corporations and licensees
neither of these acts was in violation of the constitution of the State
nor that of the United States, and that both acts were within the
scope of the legislative authority.
The court said in part:
We do not not base this decision so much upon the ground that the business is
affected by the public use, but upon the still higher ground that the public tran­
quillity and the good and safety of society demand, where the number of employees
is such that specific contracts with each laborer would be improbable, if not impossi­
ble, that in general contracts justice shall prevail as between operator and miner;
and, in the company’s dealing with the multitude of laborers, with whom the State
has by special legislation enabled the owners and operators to surround themselves,
that all opportunities for fraud shall be removed. The State is frequently called upon
to suppress strikes, to discountenance labor conspiracies, to denounce boycotting as
injurious to trade and commerce; and it can not be possible that the same police power
may not be invoked to protect the laborer from being made the victim of the compul­
sory power of that artificial combination of capital, which special State legislation has
originated and rendered possible. It is a fact worthy of consideration, and one of
such historical notoriety that the court may recognize it judicially, that every dis­
turbance of the peace of any magnitude in this State since the civil war has been
evolved from the disturbed relations between powerful corporations and their serv­
ants or employees. It can not be possible that the State has no police power ade­
quate to the protection of society against the recurrence of such disturbances, which
threaten to shake civil order to its foundations. Collisions between the capitalist and
the workingman endanger the safety of the State, stay the wheels of commerce, dis­
courage manufacturing enterprise, destroy public confidence and at times throw an
idle population upon the bosom of the community. * * *
*
* * Down through the centuries, hand in hand, and consolidated into one
police regulation, have come these conspiracy laws to protect capital, and these truck
acts to protect labor, and both protect society; and are we now to be told that the
effect of adopting our free American constitutions is to leave in full vigor the power to
protect capital, but to destroy the concomitant and correlative power to protect
labor? The two powers, associated in their exercise for centuries, have not been
divorced by American institutions. Such an idea is not to be entertained for a mo­
ment. * * *

Illinois.—A law of Illinois5 on this subject required that all coal
must be weighed in pit cars before being dumped into screens or
1 For a recent report on this subject see Report of the Ohio Coal Mining Commission to the Governor of
Ohio, Dec. 17, 1913.
2 W est Virginia.— Acts of 1891, ch. 82, pp. 209-211.
s W est Virginia.— Acts of 1891, ch. 76, pp. 197, 198.
4 State v. Peel Splint Coal Co., 36 W . Va. 802-858, Oct. 6, 1892.
e Illinois.— Acts of 1891, pp. 170,171.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

137

chutes, 2,000 pounds to the ton. This law was in the courts the
following year. Ramsey paid workmen on the basis of screened
coal. The employees had accepted the contracts providing for pay­
ment in that manner. The court1 cites the case of Frorer v. People 2
with approval and continues—
We are of the opin ion that the same rule, in substance, * * * applies here, and
we need therefore do little m ore than refer to w hat is said * * * in that case. *

Viewing the law as class legislation the court declared:
* * * The statute makes it imperative, where the miner is paid on the basis of
the amount of the coal mined, whatever may be the wishes or interests of the parties,
that the coal shall be weighed * * * before being screened, and * * * com­
pensation * * * computed upon the weight of the unscreened coal. * * *
* * * There is no difference, at least in kind, * * * between coal mining, on
the one hand, and other varieties of mining, * * * the construction of buildings,
agriculture, commerce, domestic service, and almost an infinite variety of other avo­
cations. * * *

Following this decision the legislature passed another a c t3 a few
years later which avoided the weaknesses of the first one. Again
the law was questioned in the courts.4 Judge Cartwright said:
It is now insisted that the section in question is an invasion of the constitutional
right of the employer and employee to contract with £ach other as to the compensation
of the employee and the manner in which it shall be ascertained, and that it is there­
fore in conflict with the constitution. We are not prepared to say that such is the
effect of the act. * * *
* * *
act does not require that the same price shall be paid for each of the
different grades into which the coal may be divided, but only undertakes to require
that the employer shall perform his contract by paying at such price as may be agreed
upon by the respective parties. * * *
* * * It appears to have been the design of the legislature to eliminate from
this act the objectionable features of former enactments by making contracts en­
forceable according to their terms, instead of attempting to make contracts for the
parties. * * *
* * * w e * * * must hold that (the law does) not apply where there is a
contract for the payment of compensation by different means or upon a different basis
than that specified in the act. To hold otherwise would render the enactment uncon­
stitutional. It has been uniformly decided that a laborer can not be deprived of the
right to make his own contracts and exercise his own judgment as to how much he will
receive for his labor and what he will receive as payment.

Indiana.—An Indiana law5 required that all coal mined by quan­
tity should be weighed before being screened and the full weight cred­
ited to the miner. For violating the provisions of this act Martin
was fined $100. He appealed to the State supreme court, where the
judgment was reversed.6 The opinion, delivered by Judge McCabe,




1 Ramsey v. People, 142 111. 380-387, Oct. 31, 1892.
2 141 111. 171, 1892.
s Illinois.— Acts of 1897, p. 270.
4 Whitebreast Fuel Co. v. People, 175 111. 51-55, Oct. 24, 1898.
6 Indiana.— Acts of 1891, ch. 49, p. 58.
e Martin v. State, 143 Ind. 545-550, Jan. 29, 1896.

138

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

held that a conviction for failure to weigh before screening was im­
proper where the evidence for the prosecution showed that the coal
mined was of such a nature that it was impossible to weigh it
before screening and credit the miner with the weight without giving
him credit for impurities in it. A similar result was reached in
another case three years later.1
Pennsylvania.—The Pennsylvania Legislature passed a similar law2
in 1897. Under it, Brown caused certain coal mined by one of his
employees to be passed over a screen before weighing it. The supe­
rior court3held the act unconstitutional as a violation of the right to
contract. Another a c t4 of similar purport but with different phrase­
ology was enacted about 10 years later but its constitutionality has
not been tested.
Kansas.—The Legislature of Kansas in 1893 5 declared it unlawful
for any employer to pass the coal mined over a screen or other device
which would take away any part of its value before it had been
weighed and credited to the employee at the legal rate of weight.
Henry Wilson was convicted of violating the act. The court of
appeals sustained the law and affirmed the judgment of conviction
in the lower court. Judge Milton, who delivered the unanimous opin­
ion,6 said, in part:
It is a matter of current history, with which all citizens are familiar, that serious
differences have arisen between mine operators and their employees as a result of the
use of devices for screening coal. The reports of the labor bureaus of all the States
wherein coal mines are operated abound in information upon this subject. * * *
The tendency of such a law would be to prevent possible fraud and imposition by
the mine owner, and to place operator and operative upon a more nearly equal basis
in respect to their mutual relations and interests than would otherwise exist. * * *
*
* * To weigh coal before it is screened is to preserve the weight of the entire
product of the miner’s labor. He may be far beneath the surface of the earth engaged
in his arduous task, but if what he produces is properly weighed in accordance with
the law and subsequently accounted for, he is put upon a basis of equality with the
purchaser, the operator of the mine, in matters of contract relating to such product.

Following this adverse decision, Wilson appealed to the State
supreme court, which affirmed the decisions of the lower courts.7
The opinion was to the effect that the act was constitutional and
valid as a proper exercise of the police power, that it did not purport
to prevent the operators of coal mines and the miners employed
by them from making such agreements as they chose concerning
the amount of wages to be paid, or in anywise infringe upon the
freedom of contract. Furthermore, information is by this means
1 State v. Pasco, 153 Ind. 214-216, Oct. 10, 1899.
2 Pennsylvania.— Acts of 1897, ch. 224, p. 286. See Acts of 1883, ch. 46, pp. 52, 53.
s Commonwealth v. Brown, 8 Pa. Super. Ct. 339-357, Oct. 10, 1898.
4 Pennsylvania.— Acts of 1909, ch. 236, pp. 423, 424.
5 Kansas.— Acts of 1893, ch. 188, pp. 271, 273.
e State v. Wilson, 7 Kans. A p p. 428-446, May 19, 1898.
7 State v. W ilson, 61 K ans. 32-47, N ov. 11, 1899.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

139

furnished to the miner by which he may act intelligently and rest
his demand for wages upon the calculated results of what he has
accomplished in the past. It also affords the operator knowledge
from the use of which wages may be adjusted, based upon known
facts. Such a law is further beneficial in that it supplies the public
with statistics showing the total amount of coal produced in the State.
In a strong dissenting opinion Judge Smith declared:
The construction applied to this law by the majority of the court seems to me to
be a perversion of legislative intent * * * We know that the demand for such legis­
lation was based on the claim that coal miners were not paid enough for their labor;
that they were at the mercy of the operators, who, by screening the product, robbed
them of a portion of the proceeds of their labor, for which they should have been paid.
The object was to right this wrong, and to this end the statute under consideration
was passed. No clamor rang in the ears of the lawmakers from oppressed and starving
miners demanding a law which would supply them with statistics when they were
crying for bread. * * *
In my judgment, the design of the framers has been misconstrued and perverted.
A law thought by them to be endowed with strength and virility, aiming at the cor­
rection of abuses in the field of labor, has been disfigured by its interpreters—its true
purpose denied. Strained and imaginary reasons are put forward as excuses for its
existence, and explanations made of its utility which are highly fanciful and specu­
lative. By a process of refined construction its original identity has been effectively
destroyed until recognition by its creators is now impossible.

Another law 1 passed several years later has not yet been tested.
Arkansas.—An Arkansas law 2 provided that no mine operator
employing more than 10 men underground at quantity rates should
pass the coal over a screen or other device which took away part of
the value before it was weighed and credited. Employees were
forbidden to waive this provision. The coal operators could accept
or reject the coal mined when it was sent to the surface, but if accepted
it must be weighed according to the act.
Woodson was fined for failing to weigh coal before it was screened
and to pay for the coal according to the weight so ascertained. In
the State supreme court3 the act was declared constitutional.
After several changes and additions were made to the act4 by the
legislature, the courts were called upon to deal again with a case
under this law. McLean was managing agent of. a mining company
and contracted with his employees to pay them at a fixed rate per
ton, the coal to be screened before weighing. The State supreme
court sustained the law 5 in the following language:
This legislation is clearly within the scope of the police power. The manifest pur­
pose of the statute is to prevent those who operate coal mines from perpetrating
frauds upon laborers whom they have employed to mine coal by the quantity. It
1 Kansas.— Acts of 1905, ch. 355, p. 593.
2 Arkansas.— Acts of 1899, ch. 102, pp. 165, 166.
3 W oodson v. State, 69 Ark. 521-537, Oct. 26,1900.
4 Arkansas.— Acts of 1901, ch. 114, p. 181; 1905, ch. 219, pp. 558, 559; 1915, ch. 49, pp. 157-159.
6 McLean v. St^te, 81 A rk. 304-311, Dec. 10, 1906.




140

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

will be observed that the act does not interfere with the right of the operator to con­
tract with the miners in his employ for the mining of coal by the hour or day, or in
any other manner, regardless of quantity, that he deems proper. He is not compelled
to have his coal mined and pay for same according to the quantity produced. But
if he elects to employ miners to mine coal and to pay for same according to the quantity
produced, then the purpose of this law is to secure the laborers against the use by him
of any screen or other device ‘ ‘ that shall take any part from the value thereof before
the same shall have been weighed and duly credited to the employee’ ’ producing
same.. Under the provisions of the statute, the operator who has contracted to have
his coal mined by the quantity is not required to accept the coal sent to the surface
by the miners. The coal “ shall be accepted or rejected.’ ’ But “ if accepted,” then
it “ shall be weighed in accordance with the provisions of the act.” The plain pur­
pose of the act, therefore, is not to prevent the parties from contracting in any
manner they deem proper for the production of coal, but * * * to see that
such quantity is ascertained by a fixed and definite standard by which neither of
the parties can be defrauded * * *.
* * * It is certainly within the police power of the State to adopt a uniform
system of weights and measures, and to require that all persons whose business transac­
tions require the use of same conform thereto * * *.
* * * As the object of such legislation is to protect those miners who need pro­
tection from fraud, broad latitude must be given the legislature in the matter of classi­
fication of mines and miners * * *.
* * * It must be presumed that the legislature through the local members from
the districts affected especially by the legislation, or its committees appointed for the
purpose, received information of the conditions which made such legislation neces­
sary or expedient, and that it intended to put its enactments in the form to meet
the requirements.

Following this adverse decision, McLean appealed to the Supreme
Court of the United States. Again the constitutionality of the law
was upheld,1 but with Justices Brewer and Peckham dissenting.
The opinion of the court was delivered by Mr. Justice Day, in the
course of which he said:
The objections to the judgment of the State supreme court of a constitutional
nature are twofold: First, that the statute is an unwarranted invasion of the liberty
of contract secured by the fourteenth amendment to the Constitution of the United
States; second, that the law being applicable only to mines where more than 10 men
are employed, is discriminatory, and deprives the plaintiff in error of the equal pro­
tection of the laws within the inhibition of the same amendment.
* * * The liberty of contract is not universal, and is subject to restrictions
passed by the legislative branch of the Government in the exercise of its power to
protect the safety, health, and welfare of the people.
It is also true that the police power of the State is not unlimited, and is subject to
judicial review; and when exerted in an arbitrary or oppressive manner such laws
may be annulled as violative of rights protected by the Constitution * * *.
The legislature being familiar with local conditions is, primarily, the judge of the
necessity of such enactments. The mere fact that a court may differ with the legis­
lature in its views of public policy, or that judges may hold views inconsistent with
the propriety of the legislation in question, affords no ground for judicial interference,
unless the act in question is unmistakably and palpably in excess of legislative power.




1 McLean v. Arkansas, 211 U . S. 539-552, Jan. 4, 1909.

RESTRICTIONS IN' THE EMPLOYMENT CONTRACT.

141

If the law in controversy has a reasonable relation to the protection of the public
health, safety, or welfare it is not to be set aside because the judiciary may be of the
opinion that the act will fail of its purpose, or because it is thought to be an unwise
exertion of the authority vested in the legislative branch of the Government.

A review of State eases that have been decided on this question is
then considered by the court and a careful resume of the testimony
given before the industrial commission is reviewed. The opinion
then continues:
We are unable to say, in the light of the conditions shown in the public inquiry
referred to, and in the necessity of such laws evinced in the enactments of the legis­
latures of various States, that this law has no reasonable relation to the protection of
a large class of laborers in the receipt of their just dues and in the promotion of the
harmonious relations of capital and labor engaged in a great industry in the State.
The law is attacked upon the further ground that it denies the equal protection of
the law, in that it is applicable only to mines employing 10 or more men. * * *
There is no attempt at unjust or unreasonable discrimination. The law is alike appli­
cable to all mines in the State employing more than 10 men underground. * * *
We can not say that there was no reason for exempting from its provisions mines so
small as to be in the experimental or formative state and affecting but few men and
not requiring regulation in the interest of the public health, safety, or welfare. We
can not hold, therefore, that this law is so palpably in violation of the constitutional
rights involved as to require us, in the exercise of the right of judicial review, to
reverse the judgment of the Supreme Court of Arkansas, which has affirmed its
validity * * *.

Ohio.—An Ohio law 1 made it unlawful for any operator employing
miners at bushel or ton rates to pass the output of coal mined over
any device which would take away any part of its value before it had
been weighed and credited.
Gilbert D. Preston was convicted for violating the act. He
petitioned the supreme court of the State for discharge on a writ of
habeas corpus and the request was granted. The court held:
That the Constitution gives inviolability to the right to make contracts, and that
the legislature may deny the right only when it is required for the general welfare,
and when it is promotive of public health or morals, are propositions established by
familiar authorities * * *.
*
* * The effect of the act is that the total compensation to be paid by an oper­
ator is to be determined by agreement, but that it must be paid to miners without
discrimination on account of their skill and care. Why the general assembly selected
this class of laborers for discrimination—why they are deemed less entitled than
others to compensation which encourages merit by rewarding it—we do not know,
nor inquire. For, however unjust to this class of laborers the act may be, we can
inquire only whether the general assembly had power to pass it. It is suggested, as
the basis of the act, that frauds may be perpetrated in the screening and weighing
of coal under the contracts heretofore entered into. To this suggestion it is sufficient
to answer that if such danger exists it may well justify appropriate legislation for
the prevention of such fraud. But this legislation does not seek to prevent fraud
nor to provide for the health or safety of those engaged in mining. Its sole pur­




» Ohio.—Acts of 1898, pp. 33, 34.

142

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

pose is to establish a uniform standard of compensation among those upon whom it
operates * *

Another a ct2 authorized the industrial commission of the State
to fix a proper tare for impurities in coal where the amount mined
was used as a basis of wage payments.
The Rail & River Coal Co., a West Virginia corporation and a
large producer of coal and employer of mine labor in Ohio, assailed
the constitutionality of the law in the Federal district court.3 The
court held that the law was sustainable under the police power; that
it did not impair the freedom of contract and that it was not repug­
nant to any constitutional provision, State or Federal.
Upon appeal to the United States Supreme Court the judgment of
the district court was upheld.4 Mr. Justice Day delivered the opinion
of the court and said in part:
The objection that the law is unconstitutional as unduly abridging the freedom of
contract in prescribing the particular method of compensation to be paid by employers
to miners for the production of coal was made in the case of McLean v. Arkansas
[211 U. S. 539 (see pp. 140, 141)] * * *. In that case the constitutional objections
founded upon the right of contract which are made here were considered and dis­
posed of. This court has so often affirmed the right of the State; in the exercise of its
police power, to place reasonable restraints, like that here involved, upon the free­
dom of contract that we need only refer to some of the cases in passing * * *.
SUMMARY.

The following summary shows the contrasts brought out in the laws
and cases reviewed:
1. The legislation concerning the wages of discharged employees
has usually been unquestioned or the cases arising under this head
have been dependent on peculiar State constitutional provisions or
legal phraseology. In Arkansas, so far as they apply to natural
persons, laws requiring payment on discharge are held to interfere
with freedom of contract. As to corporations the regulation has
been sustained in both the State courts and the United States
Supreme Court.
2. The constitutionality of statutes on the payment of wages
owed to deceased employees has not been tested.
3. Laws intended to protect employers against fraud in contracts
involving wages advanced have been passed in a number of States in
both the North and the South. These statutes have given rise to the
1 In re Preston, 63 O. S. 428-440, N ov. 27, 1900.
Similar laws not yet passed upon are—
Missouri.— Acts of 1885, pp. 207, 208; 1899, pp. 303, 304.
Iowa.— Acts of 1888, ch. 54, pp. 77, 78; 1900, ch. 80, p. 61.
W yom ing.— Acts of 1890, ch. 79, p. 156; 1911, ch. 74, pp. 98, 99.
Washington.— Acts of 1891, ch. 161, pp. 414, 415.
Colorado.— Acts of 1901, ch. 91, p. 236; 1915, ch. 56, p. 191.
Oklahoma.— Acts of 1907-8, ch. 54, pp. 521, 522; 1910 (ex. sess.), ch. 7, pp. 7,8
2 O h io — Acts of 1914, pp. 181, 182; 1915, p. 350.
3 Rail & River Coal Co. v. Yaple, 214 Fed. 273-283, May 20, 1914.
4 Rail & River Coal Co. v. Yaple, 35 Sup. Ct. 359-363, Feb. 23,1915.




RESTRICTIONS IN THE EMPLOYMENT CONTRACT.

143

“ peonage cases.” The Alabama law has been declared unconstit­
utional by the Federal Supreme Court because in violation of the
prohibition of involuntary servitude. A similar fate met the former
South Carolina law in the Federal district court. The latest form
was declared void by the State supreme court. The North Carolina
law was held void for conflict with the State constitution. The
Louisiana and Georgia statutes have been sustained in the State
courts. There is no doubt that, barring peculiar provisions of the
State constitutions, the abuse which is the alleged ground for legis­
lation of this nature can be reached by laws directed against the
element of fraud. The decisions declaring the acts void are due to
elements which do not necessarily involve the right of contract or
personal liberty.
4. Laws regulating deductions from wages are also uniformly
sustained when the legislature attempts merely to secure fair con­
ditions of employment.
5. In the case of laws seeking to place special safeguards about
wages that have already been earned, viz, providing against any
refusal to pay wages due, seeking to compel an employer to give a
prior notice of reduction of wages, and regulating the place of pay­
ment of wages, no court decisions have been rendered testing their
constitutionality.
6. Statutes protecting the rights of mine labor are numerous and
the court decisions are far from harmonious.
Laws designed to secure fair and accurate weighing of coal at
mines have usually been held unconstitutional. The Illinois cases
sustain the right of the legislature to compel the use of fair weights
and measures where contracts are made on the basis of weight, but
deny the right to regulate the contracts by compelling them to be
made on the basis of weight. The Supreme Court of Colorado adopted
the same view.
Laws providing that coal is to be weighed before screening are on
the statute books of every State where coal is mined. The West
Virginia law as applied to corporations and licensees has been held
constitutional by the supreme court of appeals. In Illinois such a
law was declared unconstitutional as class legislation, but a later
decision evaded the question as to whether such a law was an invasion
of the right to contract. The tenor of the Indiana supreme court
decisions in similar cases not in point would seem to indicate the
unconstitutionality of such laws, although no cases have directly
raised the question. The Superior Court of Pennsylvania held such
an act unconstitutional as a violation of the right to contract. A
decision of the Kansas court of appeals sustained by the supreme
court of the State declared such a law constitutional, and in doing
so exhibited a clear appreciation of the social necessity for such




144

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

legislation. An Arkansas law was upheld in the denial by the
supreme court of the State that such legislation was an arbitrary and
unreasonable example of class legislation. Later, the same court
held the law constitutional as clearly within the police power of the
State, and upon appeal the United States Supreme Court sustained
the State court in its opinion. All doubt as to the constitutionality
of such laws is removed by the McLean decision, and later by the
Yaple decision, and the question of a denial of the liberty to contract
as secured by the fourteenth amendment has been met squarely.
This review of various sorts of restrictions on the employment
contract which have been attempted shows the chaotic condition of
our labor decisions. State courts differ widely as to what is consti­
tutional under similar provisions of the State constitutions. The
decisions of the Federal judicial authorities are of decidedly broader
view. They show a willingness to consider economic facts and a.
realization that if legal theory ceases to fit our rapidly changing life
it must yield as far as possible under the Constitution to the standards
set by our legislatures. Too many of our State courts construe a
constitution to be a power of attorney and not a frame of gov­
ernment. The following table shows the variety of court decisions
in this field of legislation:
D E C IS IO N S O N W A G E -P A Y M E N T L E G IS L A T I O N IM P O S IN G V A R IO U S R E S T R IC T I O N S .

Date.
Title of case.
Year.

1884
1886
1889
1891
1891
1891
1892
1892
1892
1892
1892
1894
1895
1896
1896
1896
1897
1898
1898
1899
1899
1899
1900
1900
1900
1901
1901
1904
1904
1906
1906
1907

State.

Subject.

Decision.

Month
and day.

Sept. 27
June 12
Dec. 16
Oct. 31
N ov.
term.
Dec. 1
Jan.
term.
Feb.
term.
June 25
6
Oct.
Oct. 31
Feb. 3
Mar. 1
Jan. 29
Mar. 30
Dec. 15
Dec. 10
Oct. 10
Oct. 24
Mar. 6
Oct. 10
N ov. 11
Feb. 16
Oct. 26
N ov. 27
July 10
N ov. 18
Feb. 17
Nov.
term.
Feb. 8
Mar. 26
Mar. 2

Jones v. People...........
Millett v. People.........
Pierce v. W hittlesey.
Smith v. State.............
E x parte R iley...........

Illinois...........
........ d o ............
Connecticut.
Tennessee.. .
Alabam a___

W eig h in g ..
____ d o ..........
Discharge..
W eig h in g ..
A d v a n ces..

Constitutional.
Unconstitutional.
Construction.
Do.
Do.

Commonwealth v. P erry..
Lewis v. Pierson..................

Massachusetts.. . Deductions.
Louisiana............. A d v a n ces..

Unconstitutional.
D o.

State v. N orm an..

San Antonio, etc.

North Carolina.

v. Wilson.

State v. Coal Co........ ..................
Ramsey v. People.....................
Leep v. Railway Co..................
In re House Bill N o. 203.......
Martin v. State...........................
Harding v. People.....................
Railway Co. v. C ox...................
Cote v. Bates Mfg. Co...............
Com. v. Brow n...........................
Whitebreast v. People.............
Railway Co. v. P aul.................
State v. Pasco..............................
State v. Henry W ilson.............
State v. Chapman......................
W oodson v. State.....................:
In re Preston...............................
State v. Easterlin.......................
State v. Goff.................................
Kelleyville, etc. v. H arrier...
Toney v. State.............................

Texas.....................
W est Virginia.. .
Illinois...................
Arkansas..............
Colorado...............
Indiana.................
Illinois...................
Ohio.......................
Maine.....................
Pennsylvania.. .
Illinois...................
Arkansas..............
Indiana.................
Kansas..................
South Carolina..
Arkansas........
O hio.................
South Carolina..
Louisiana___
Illinois.............
Alabam a.........

State v. Thom as.
State v. Murray..
S ta te v* V a n n ....

........ d o _____
Louisiana.
A lab am a..




.do.
Discharge...
Screening.. .
____ d o ............
Discharge...
W e ig h in g ...
Screening.. .
W eigh in g .. .
Deductions..
Discharge...
Screening...
____ d o ............
Discharge...
Screening...
____ d o ...........
A d v a n ces..,
Screening...
........ d o ...........
A d v a n ces...
........ d o............
Deductions..
A d v a n ces..
.d o ..
.d o .
.d o .

Constitutional.
Unconstitutional.
Constitutional.
U nconstitutional.
Do.
Do.
Construction.
Unconstitutional.
D o.
Construction.
U nconstitutional.
Constitutional.
D o.
Construction.
Constitutional.
D o.
Do.
Unconstitutional.
Constitutional.
D o.
Unconstitutional..
Constitutional.
Do.
Do.
Do.

RESTRICTIONS IN THE EMPLOYMENT CONTRACT.
D E C IS IO N S O N

W A G E -P A Y M E N T L E G IS L A T I O N IM P O S IN G
T IO N S— Concluded.

V A R IO U S

145
R E S T R IC ­

Date.
Title of case.
Year.

1907
1907
1908
1909
1909
1911
1911
1912
1913
1914
1915
1915
1916

State.

Subject.

E x parte D rayton...............................
Vance v. State.......................................
E x parte Hollman...............................
McLean v. Arkansas...........................
State v. W illiam s.................................
Bailey v. State.......................................
Railway Co. v. Braddy.....................
Com. v. Lancaster Mills....................
W ynn e v. Railway Co........................
Railway Co. v. Schuler.....................
Rail & River Coal Co. v. Y a p l e .. .
Thomas v. State...................................
Olson v. Idora H ill Mining Co........

South Carolina.
Georgia...............
South Carolina.
Arkansas............
North Carolina.
Alabama.............
Texas...................
Massachusetts..
South Carolina.
Indiana...............
Ohio.....................
Alabama.............
Idaho...................

Advances. .
........ d o ......... .
........ d o ......... .
Screening. . .
A d van ces...
____ d o ...........
Discharge...
Deductions..
Discharge...
____ d o ......... .
Screening...
Advances. .
Discharge..

Decision.

Mouth
and day.

May
July
Jan.
Jan.
Mar.
Jan.
Mar.
June
O ct.
June
May
June
Feb.

23
11
16
4
10
3
11
18
6
2
20
30
5

U nconstitutional.
Constitutional.
Unconstitutional.
Constitutional.
U nconstitutional.
Do.
Do.
Constitutional.
Do.
Unconstitutional.
Constitutional.
U nconstitutional.
Constitutional.

Summary: Discharge— 3 cases held constitutional; 4 cases held unconstitutional;
2 cases construction of statute. Advances— 9 cases held constitutional; 6 cases held
unconstitutional; 1 case construction of statute. Deductions— 1 case held constitu­
tional; 3 cases held unconstitutional. Weighing— -1 case held constitutional; 3 cases
^
held unconstitutional; 1 case construction of statute. Screening— 6 cases held con­
stitutional; 3 cases held unconstitutional; 2 cases construction of statute.
105598°— 18— Bull. 229-------10




C H A P T E R

V i n .— C O N F L IC T
S O C IA L

B E T W E E N

IN D IV ID U A L IS M

A N D

C O N T R O L .1

The review which has been given of wage-payment legislation and
the decisions in the cases which have arisen under these laws make
clear the fact that there are developing two groups of cases strongly
contrasted in the philosophy which prompts their reasoning. Our
judicial decisions in this field are undergoing the gradual modification
which has always been the saving feature of Anglo-Saxon law. A
wrong case, or an outgrown principle, even after it becomes in­
crusted with the weight of long-established precedents, will gradually
be abandoned by the slow process of differentiation and exception.
This development is taking place before our eyes in the attitude of
the courts toward protective legislation. The line of cases which
insist on a theoretical equality (which is an element of laissez faire
theory) is yielding before decisions which look back of technical
jural relations to the facts of present-day industrial life. We are
approaching the time when we shall recognize in law the inequality
that exists in fact. We shall rely upon the strong arm of the law to
protect for the weaker brother the equality which he has lost, not by
any failure of his own but by the industrial conditions among which
it has been his lot to be born.
To bring out this contrast and development, let us review the more
important conclusions in both groups of cases.
WHAT IS FREEDOM IN WAGE CONTRACTS? 2

The leading authority for decisions depending upon the laissez
faire theory was long drawn from the Slaughterhouse Cases 3 and
curiously enough, from the minority opinion. No more interesting
example of the lack of uniformity in our judicial system can be cited
than this. Though not originally the opinion of the court, this mi­
nority declaration by that staunch individualist, Mr. Justice Field,
has been one of the favorite arguments for the overthrow of social
legislation. To state this paradox in another way, the State courts
quoted the dissent in a Federal Supreme Court case as a ground for
upsetting the constitutionality of State laws.
It mattered not
that the alleged unconstitutionality was that of infringement of State
or Federal Constitution; there was no appeal.4 Mr. Justice Field in
1 Frank Parsons: Legal Doctrine and Social Progress, New Y ork, 1911.
2 G. G. Groat: Attitude of American courts in labor legislation, in Columbia University Publication, New
Y ork, 1911, vol. 42, No. 108.
3 16 W all. 36-130, Apr. 14, 1872. Mr. Justice Miller delivered the opinion of the court.
4Recently changed by Congress, Stat. of 1914, vol. 38, p. 790.

146




CONFLICT BETWEEN INDIVIDUALISM AND SOCIAL CONTROL.

147

summing up a long argument supporting the right of the individual
to enter any lawful calling declared:
This equality of right, with exemption from all disparaging and partial enactments,
in the lawful pursuits of life, throughout the whole country, is the distinguishing privi­
lege of citizens of the United States. To them, everywhere, all pursuits, all profes­
sions, all avocations are open without other restrictions than such as are imposed
equally upon all others of the same age, sex, and condition. * * * This is the
fundamental idea upon which our institutions rest, and unless adhered to in the
legislation of the country our Government will be a republic only in name.1

The same sort of argument 11 years later found its way into a con­
curring opinion given by three justices 2 and thereafter came to be
frequently relied on by State courts. The influence of such reason­
ing is shown in the decision in the New York Sweatshop Case. The
law in question had been introduced in the legislature for unorgan­
ized cigar makers, chiefly foreign born. The legislative committee
to which it was referred was relied upon to kill it, but after making
an investigation it found the conditions of manufacture so bad that
it pushed the measure to adoption. In passing on the constitu­
tionality of the measure the New York court of appeals declared
that under the law a man—
* * * may desire the advantage of cheap production in consequence of his cheap
rent and family help and of this he is deprived. * * * It (the law) arbitrarily de­
prives him of his property and of some portion of his personal liberty. * * * In its
exercise (of the police power) the legislature must respect the great fundamental rights
guaranteed by the Constitution. * * * It has never been said * * * that
(its) preparation and manufacture into cigars were dangerous to the public health.
* * * We certainly know enough about it to be sure that its manipulation in one
room can produce no harm to the health of the occupants of other rooms in the same
house. * * * What possible relation can cigarmaking in any building have to the
health of the general public? * * * Such legislation may invade one class of
rights to-day and another tomorrow. * * * 3
CHECK UPON NEEDED LEGISLATION.

Not only did this decision defer for 15 or 20 years anything like
effective regulation of tenement houses in New York, but the court
by its categorical language gave a strong impetus to the restrictive
attitude encouraged in the State courts by the cases already cited.
By 1885-, though public opinion, had begun to shift strongly in favor
of the regulation of the hours of labor, conditions of employment,
and wage payment, the courts had developed a line of decisions
which could not but be the prelude to decided opposition to social
control. The individualism of a generation before had just come to
its full expression in the law.
1 Slaughterhouse Cases, 16 W all. 109,110.

2 Butchers' Union v. Crescent City Live Stock Landing & Slaughterhouse Co., I l l U . S. 746-766, M ay 5,
1884.
* In re Application of Peter Jacobs, 98 N . Y . 104, 105, 110, 113, 114, Jan. 20, 1885.




1 48

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

The year following the New York Sweatshop Case saw the first
declarations against the regulation of wage payments. The decisions
were in neither case impartially argued. In fact, there was an off­
hand dismissal of moot points possible only to a court strongly imbued
with the philosophy of laissez faire and its accompaniment, freedom
of contract. The cases came from Pennsylvania and Illinois, where,
because of the importance of their industrial development, protection
from the abuses of free contract is especially needed, and where the
courts have until recently shown no disposition to modify the extreme
conservatism voiced by these early cases.

In the Pennsylvania case a law of 1881 required that the payment
of wages of laborers in and about iron mills should take place at
regular intervals and be in lawful money. Such provisions the court
declares—
are utterly unconstitutional and void, inasmuch as by them an attempt has been
made by the legislature to do what, in this country, can not be done; that is, prevent
persons who are sui juris from making their own contracts. The act is an infringe­
ment alike of the right of the employer and the employee * * * it is an insulting
attempt to put the laborer under a legislative tutelage, which is not only degrading
to his manhood but subversive of his rights as a citizen of the United States. He
may sell his labor * * * just as his employer may sell his iron or coal, and any
and every law that proposes to prevent him from so doing is an infringement of his
constitutional privileges and consequently vicious and void.1

The language in the Illinois case is no less decisive. The law called
in question required that all coal mined be weighed on a standard
scale which the operator must keep and that the weights thus ascer­
tained should be the basis of the wage payments. Justification was
attempted on the ground that this was a regulation under the police
power with the object of preventing fraud, but the court saw in it an
attempt to destroy the property rights of contract. After consider­
ing the application of the police power to the provisions of the law
the court concluded that “ it is quite obvious that they are not jus­
tified on that ground.” Then as a rhetorical question it is asked:
What is there in the condition or situation of the laborer in the mine to disqualify
him from contracting in regard to the price of his labor or in regard to the mode of
ascertaining the price? 2

It seems never to have entered the mind of the court that in
fixing the terms of the contract the bargaining power of the operator
and that of the miner were at all different or that the miner, who
could not know, except by a provision similar to that in the law,
what was the real weight of the coal mined, was in no position to
defend himself against fraud in the computation of his wages.

In 1889 West Virginia came into line. A law forbidding the use of
store orders for wage payments in mines and manufactories was held




1 Godcharles & Co. v. Wigeman, 113 P a. St. 437, O ct. 4, 1886.
2 Millett v. People, 117 111. 302, June 12,1886.

CONFLICT BETWEEN INDIVIDUALISM AND SOCIAL CONTROL.

149

unconstitutional. Quoting and following the arguments of Godcharles v. Wigeman and Millett v. People, the court declared:
* * * If the legislature, without any public necessity, has the power to prohibit
or restrict the right of contract between private persons in respect to one lawful trade
or business, then it may prevent the prosecution of all trades and regulate all con­
tracts.1

The next decade saw the high tide of individualistic argument in
the courts. The four cases cited above were accepted as good doctrine
almost without question. California in 1890 annulled an ordinance
regulating hours of labor on public work. The argument that a
public authority might be considered an employer who could dictate
the terms on which work was to be done seems to have been over­
looked in the desire to protect the alleged property rights of the con­
tractor who was to do the work.2 In 1891 the Massachusetts court
in Commonwealth v. Perry 3 used the arguments and cases already
indicated to hold void a law concerning fines in factories. In 1892
the Supreme Court of Illinois strengthened its declaration in Millett
v. People by three more decisions of a similar sort. Two, Frorer v.
People 4 and Braceville Coal Co. v. People,5 involved the truck store
and weekly payment acts of 1891.6
The laws are annulled by practically the same arguments. One
feature of the Frorer case deserves special mention. The fact that
laws regulating the rate of interest were sustained, though they cut
down the right of contract, had already been noted in several of the
previous decisions. The exception was generally justified by refer­
ence to the fact that regulation of those agreements had been a
common practice before the Constitution and must be held to have
been adopted with other constitutional rules taken over from England.
But the judge in Frorer v. People gives an argument which, placed
beside his conclusion on the case in hand, makes the position of the
court seem peculiarly inconsistent. The judge one moment recog­
nizes fact as a reason for an exception to the general rule and the
next moment turns his back on the same sort of evidence.
* * * Usury laws proceed upon the theory that the lender and the borrower of
money do not occupy toward each other the same relations of equality that parties
do in contracting with each other in regard to the loan or sale of other kinds of prop­
erty, and that the borrower’s necessities deprive him of freedom in contracting and
place him at the mercy of the lender. And such laws may be found on the statute
books of all civilized nations of the world, both ancient and modern.7
1 State v. Goodwill and State v. Minor, 33 W . V a . 184, N ov. 18, 1889. The same arguments were also
used in State v. Fire Creek Coal & Coke Co., 33 W . Va. 188-191, N ov. 18,1889.
2 E x parte Kuback, 85 Cal. 274-276, Aug. 4, 1890.
3155 Mass. 117-125, Dec. 1,1891.
4 141 HI. 171-188, June 15, 1892.
6 147 111. 66-75, Oct. 26, 1893.
e For a discussion of these cases see Roscoe Pound: Liberty of contract, in Yale Law Journal, May, 1909,
vol. 18, N o. 7, pp. 454-487.
7 Frorer v. People, 141 111. 186.




150

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

But it did not appear to the judge that there were any similar
necessities that would deprive a miner of “ freedom of contract and
place him at the mercy o f” his employer, when the employer had
power to refuse to pay him in anything but orders for goods receiv­
able at the company store. Nor was it any argument that the em­
ployer could withhold payment of wages, so as practically to force
him to remain in the employ of the operator and to trade at his store,
where credit would be advanced against the wages he would receive.
On the contrary, the court held to the technical argument.
The privilege of contracting is both a liberty and a property right, and if A is denied
the right to contract and acquire property in a manner which he has hitherto enjoyed
under the law, and which B, C, and D are still allowed by the law to enjoy, it is clear
that he is deprived of both liberty and property * * *. The right to contract
necessarily includes the right to fix the price at which labor will be performed and
the mode and time of payment.1

Thus, out of the “ liberties” of the man whom the law was framed
to protect is woven the web which limits his actual freedom. Ramsey
v. People,2 the third Illinois case, breathes the same spirit. Because
of equality of liberty no law can be allowed to require the weighing
of coal mined before it is screened. The operator and the miner
must be allowed to fix the contract as free bargainers, equally able
to protect their rights.
State v. Loomis, a Missouri case,3next held that a law requiring pay­
ment of wages in money in mines and factories was unconstitutional,
basing the opinion, as usual, on the arguments of the New York,
Pennsylvania, Illinois, and West Virginia precedents. The law “ is
purely arbitrary, because the ground of classification has no relation
whatever to the natural capacity of persons to contract.”
The Supreme Court of Arkansas the following year declared
“ natural persons do not derive the right to contract from the legis­
lature; corporations do,” and it was held that since that was the
case an act to penalize nonpayment of wages to discharged employ­
ees on the day of discharge was unobjectionable as applied to cor­
porations, but could not be enforced on wage contracts between
individuals.4
In 1895 the Supreme Court of Colorado in In re House Bill No.
203,5 gave an opinion that a law could not require that coal be
weighed at the mine for the purpose of determining miners7 wages.
It was declared that such an act was contrary to both State and
Federal Constitutions.
1 Braceville Coal Co. v. People, 147 111. 71, 75, Oct. 26, 1893.

2 142111. 380-387, Oct. 31, 1892.
s 115 Mo. 307-336, Mar. 25, 1893.
4 Leep v. St. Louis, Iron Mountain & Southern B y . Co., 58 A rk . 407-446, Feb. 3,1894. B u t the law in a
later case was upheld in its entirety; see McLean v. State, 81 A rk . 304-311, D ec. 10,1906.
5 21 Colo. 27-29, Mar. 1, 1895.




CONFLICT BETWEEN INDIVIDUALISM AND SOCIAL CONTROL.

151

The next decision touching wage payments is another Illinois case,
Harding v. People,1involving a screening law applying to coal shipped
from mines by rail or water. The statute was held void because of
the classification, but the dicta of the court clearly showed the
acceptance of the arguments made familiar in cases cited above. In
1899 the California law requiring corporations to pay their laborers
at least once a month was held invalid.2
In the years from 1895 to 1900 the courts continued to follow the
arguments already outlined. The Nebraska supreme court declared an
eight-hour law for all but farm laborers unconstitutional.3 In Missouri
a law forbidding the discharge of an employee because of member­
ship in a labor union was annulled,4 and an Illinois case, Ritchie
v . People, marked the extreme point in the swing of the pendulum
toward individualistic philosophy. In this case a law regulating the
hours of labor for women in the clothing trade was declared uncon­
stitutional because it deprived one class of rights allowed other per­
sons under like conditions, and because in limiting the right to contract
it violated a property right which the legislature could not abridge.5
The court refused to consider whether or not reason lay back of
the classification, but contented itself with the bare assertion of legal
equality. A Federal circuit court held that a law forbidding rail­
way employees to contract away their right to sue for injuries was
unconstitutional,6 and Colorado denied the right of the legislature to
regulate hours of labor in underground mines and in smelters.7
RECENT LIBERAL INTERPRETATION.

Even after 1900 there are examples of extreme decisions which
rest on the same philosophy,8 but the tide was already beginning to
turn in the opposite direction. The contrast between jural equality
and actual inequality was becoming so marked that the courts could
1 160 111. 459-467, Mar. 30, 1896.
2 Johnson v. Goodyear Mining Co., 127 Cal. 4-21, N ov. 20, 1899.
3 Low v. Rees Printing Co., 41 Nebr. 127-147, June 6,1894.
< State v. Julow, 129 Mo. 163-178, June 18, 1895; followed in Gillespie v. People, 188 111. 176-187, Dec. 20,
1900; State v. Kreutzberg, 114 W is. 530-550, June 19,1902; Coffeyville Vitrified Brick & Tile Co. v. Perry,
69 Kans. 297-305, May 7, 1904; and People v. Marcus, 185 N . Y . 257-265, May 25, 1906.
5 Ritchie v. People, 155 111. 99-123, Mar. 14,1895.
« Shaver v. Pennsylvania Co., 71 Fed. 931-939, Jan. 28,1896.
7 In re Morgan, 26 Colo. 415-451, September term, 1899.
s Cases of this nature involving wage payments are: People ex rel. Rodgers v. Coler, 166 N . Y . 1-44, Feb.
26,1901, annulling laws regulating wages and hours of labor in public contracts; Street v. Varney Electrical
Supply Co., 160 Ind. 338-348, Apr. 1, 1903, involving similar questions; State v. Missouri Tie & Timber
Co., 181 Mo. 536-563, May 11,1904, annulling a law requiring wages to be paid in cash or negotiable instru­
ments.
Other cases showing individualistic arguments are: Mathews v. People, 202 111. 389-410, Apr. 24, 1903
(though not the point on which the case turned it was held that the law violated liberty of contract);
Lochner v. New Y ork, 198 U . S. 45-76, Apr. 17,1905, in which the United States Supreme Court by a divided
court passed adversely on a law regulating hours of labor in bakeries; People v. Marcus, 185 N . Y . 257-265,
May 25, 1906, declaring that a law forbidding discharge of an employee for membership in a labor union
can not be sustained; a holding sustained in the Federal Supreme Court in Adair v. United States, 208
U . S. 161-192, Jan. 27, 1908.




1 52

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

not longer maintain the one and disregard the other. Individualism
was coming to be recognized as not only no longer the doctrine
unqualifiedly given the support of public opinion, but that which
formed no concrete part of the Constitution. As Mr. Justice Holmes
declared in his dissenting opinion in the Lochner v . New York case
involving the constitutionality of a 10-hour law in bakeries:
*
* * State constitutions and State laws may regulate life in many ways which
we as legislators might think as injudicious or if you like as tyrannical as this, and
which equally with this interfere with the liberty to contract. Sunday laws and
usury laws are ancient examples. A more modern one is the prohibition of lotteries.
The liberty of the citizen to do as he likes so long as he does not interfere with the
liberty of others to do the same, which has been a shibboleth for some well-known
writers, is interfered with by school laws, by the post office, by every State or munici­
pal institution which takes his money for purposes thought desirable, whether he likes
it or not. The fourteenth amendment does not enact Mr. Herbert Spencer’s Social
Statics. The other day we sustained the Massachusetts vaccination law. * * *
United States and State statutes and decisions cutting down the liberty to contract
by way of combination are familiar to this court. * * * Two years ago we upheld
the prohibition of sales of stock on margins or for future delivery in the constitution
of California. * * * The decision sustaining an eight-hour law for miners is still
recent. * * * Some of these laws embody convictions or prejudices which judges
are likely to share. Some may not. But a constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of the
citizen to the State or of laissez faire. It is made for people of fundamentally differ­
ing views, and the accident of our finding certain opinions natural and familiar or
novel and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States. * * * I think that the word liberty in the fourteenth amendment is per­
verted when it is held to prevent the natural outcome of a dominant opinion, unless it
can be said that a rational and fair man necessarily would admit that the statute pro­
posed would infringe fundamental principles as they have been understood by the
traditions of our people and our law. It does not need research to show that no such
sweeping condemnation can be passed upon the statute before us. * * * 1




1 Lochner v. New York, 198 U . S. 75, 76.

C H A P T E R

I X .— C H A N G I N G

T O W A R D

A T T IT U D E

W A G E -P A Y M E N T

O F

T H E

C O U R T S

L E G IS L A T IO N .

Legislation on wage payments is, of course, only a branch of that
larger group of laws which aim to give the laborer protection in liber­
ties which he otherwise would not enjoy. Regulation of hours of
labor, the use of protective devices on machinery, the fulfillment
of sanitary requirements, and many similar subjects are gradually
finding places upon the pages of statute books as a recognition of a new
attitude toward the man who wins his livelihood with his hands. Wage
legislation is one of the centers around which the struggle for betterment
has been made.1 Hours may be shortened, machinery made safe, and
health protected, yet if the laborer is not guaranteed the fair payment of
wages and is not able to use the reward of his labor as he wishes he can
not be said to enjoy the liberty which a broad interpretation of the
Constitution should guarantee.
FIRST FAVORABLE AMERICAN DECISIONS.

The pioneer case sustaining a statute affecting wage payments was
a Maryland case in 1880, Shaffer & Munn v . Union Mining Co.2 The
arguments presented by the court are interesting not so much because
they make use of the conventional phrases about liberty and prop­
erty but rather because they adopt the point of view of the employee
instead of that of the employer in the application of these phrases.
The question under consideration was a law which required the pay­
ment of wages to employees of manufacturing, mining, and railroad
corporations, employing 10 or more hands, in Allegany County, in
legal tender money of the United States. Judge Irving delivered the
unanimous opinion for the court of appeals, in which he said in part:
The main questions for consideration are, first, is this act a valid exercise of power
by the legislature so far as it affects the Union Mining Co.? And, secondly, if it was
constitutional and valid as to the appellees, was it intended to restrict, and does it re­
strict the powers of the employees of the corporation, so as to prevent their assigning
what was due them from the appellees to the appellants; and if it was so intended
was it competent for the legislature to impose such restriction?

The court answered the first question in the affirmative, on the
ground of the reserved right of the legislature to alter or amend
charters granted by it to corporations. This reserved right the court
1 G. G. Groat: Attitude of American courts in labor cases, in Columbia University Publication, New
York, 1911, vol. 42, N o. 108.
J. R . Commons and J. B . Andrews: Principles of Labor Legislation, New York, 1916.
2 55 M d. 74-87, Dec. 9, 1880.




153

154

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

held included the power to control corporations in respect to their con­
tracts with their employees and the mode of paying them.
In answer to the second question the court said:
This statute was evidently conceived and enacted for the purpose of correcting some
evil which had resulted to the employees of such corporations as are described in the
act, and perchance to the community also, from the mode in which those corporations
had been wont to deal with their operatives. The statute was manifestly intended to
be in the interest of the employees. We suppose it must have been intended to pro­
tect the employees from future exactions, extortion or overreaching, supposed to have
affected them injuriously in the past * * *.
To accord to this law the construction contended for by the appellee, * * *
would be doing unwarranted violence to the rights of the employees over the fruits of
their own labor. It would be preventing their use of their wages, which might have
been accumulating in the employer’s hands * * *.
* * * It is a penal statute, and must be construed strictly. What it denounces
as void is the contract of the corporation to pay its hands in any other way than in
money. What it expressly prohibits, is the making of such contract with the em­
ployee in another way than as the law directs; and the payment in any other way than
it by its terms allows. The making of such contract, or the payment of wages in any
other way than the law directs, is made an indictable offense, which is heavily pun­
ishable by fine. It is the corporation which is punished— not the employee. The
latter is treated as the party injured by the corporation dealing with him in the inhib­
ited way; and he is allowed to recover his wages without abatement for the dealings
of the corporation in violation of the act, * * * .1

We do not find here any artificial theory of classification as adopted
in later cases arising to trouble the judges in reaching conclusions.

Another early case in this field of legislation was one that arose in
Illinois in 1884, Jones v. People.2 A law provided that where coal
was mined and paid for by weight, the operator should keep stand­
ard scales and correct records of weights obtained on the scales. The
State supreme court, without dissent, upheld the law in an opinion
delivered by Judge Sheldon, in the course of which he said:
The statute under which this proceeding is had is assailed by appellant’s counsel as
unconstitutional. It is said the act in effect deprives every coal operator in the State
of the power to make any contracts to have coal mined, except the wages of the persons
mining the coal be computed upon the weight of the coal mined, and that the right to
make contracts about the free use and enjoyment of one’s own private property is a
right of property, and secured by the constitutional guaranty that no person shall be
deprived of property without due process of law. As we read the statute it is not
obnoxious to the objection made * * *.
* * * Taking all of its sections together, the design of the act appears to be for
the protection of miners who are paid according to the weight of coal dug—to provide a
correct basis, in the determining of the weight, upon which their wages shall be
computed * * *.3

Better known than these cases is that of Hancock v. Yaden, which
arose in Indiana in 1890, and which judged by later decisions must be




1 Shaffer & M ann v. Union Mining Co., 55 M d. 79-83.
2 110 111. 591-594, Sept. 27, 1884.
s Jones v. People, 110 111. 593,594.

CHANGING ATTITUDE OF THE COURTS.

155

held, though right in principle, to be a conspicuous example of judi­
cial hedging.
A dispute arose under a law forbidding truck payments. The law
required biweekly payments in lawful money of the United States.
Yaden had contracted to waive the law and “ accept his pay or any
part thereof at the option of said Hancock and Conkel in goods and
merchandise at their store.” On his trying to secure payment as the
statute provided, the operators answered that the law abridged free­
dom of contract. The State supreme court gave an undivided opin­
ion sustaining the law.1 Its reasoning admits that the law limits the
right of contract, but, after citing many other relations in which such
limitation is sustained, it is held that this law does not violate the
freedom protected by the Constitution.
*
* * The right to contract is not, and never has been, in any country where, as
in ours, the common law prevails and constitutes the source of all civil law, entirely
beyond legislative control. * * * That this legislative authority is limited no one
doubts; but it is limited only by the Constitution. But no limitation in that instru­
ment so operates as to prevent the lawmaking power from prohibiting classes of citizens
from contracting in advance that the wages of miners shall not be paid in lawful money
of the United States.

The argument, after having shown the right of the legislature to
pass laws affecting the right to contract, sustains the law in question
on the ground that it is justified as a measure to protect what the
National Government has decreed shall be money.
The last part of the argument is weak. The discussion of the
power of the legislature over contracts to be made, however, is vig­
orous and is a forecast of what was slowly to be admitted by other
courts. It betokened a new point of view when a court could con­
clude its examination of a law of this sort with the declaration—
The statute operates upon both the employer and the employee. It may, it is true,
in its practical operation especially benefit the wage earner, but that is no fault; at
all events the fault is not such a grevious one as to compel the courts to strike it down.

It is the more remarkable that the principles of Hancock v . Yaden
should have had so little influence. It is unfortunate that the court,
after the argument as to the legality of laws interfering with the con­
ditions of contracts, passed to the advantages to be reaped from laws
protecting the value of United States money, rather than to the gen­
eral ground of the police power. Since that was done, the final con­
clusion became inapplicable to cases other than those involving the
mode of payment, and the way seems to have been left clear for the
general adoption of the sweeping arguments of Godcharles v . Wigeman, announced four years earlier.




i Hancock v. Yaden, 121 Ind. 366-375, Jan. 7, 1890.

156

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

CLASSES OF WAGE-PAYMENT LEGISLATION RECENTLY SUSTAINED.

Wage legislation which came to trial in the courts after Hancock v .
Yaden was generally annulled up to the end of the nineteenth cen­
tury. Since then the courts, especially the Supreme Court of the
United States, have gradually become more lenient with social legis­
lation in general, including wage laws. The decisions may be grouped
according to the sort of regulation attempted.

REGULATION O PUBLIC W
N
ORK.
These laws usually involve hours of labor as well as the wages to
be paid. Only one case in the nineteenth century recognized the
right of the public to stipulate the wage conditions under which its
own work should be done.
In 1876 the law of 1869 of the United States Government providing
an eight-hour day was sustained,1 but only after an interpretation
which made it merely directory to the agent, and gave him power to
reduce the wages, if only eight hours were worked, or at his wish to
make agreements for a working-day of more than eight hours. The
point was raised squarely in the case of State of Kansas v . Atkin,
decided in 1902. The court sustained the right of the State to regu­
late the conditions of labor in municipal contracts on the ground
of State control over municipalities. No specific pleading was made
of the right of free contract.2
The next year the same case came up on appeal in the United
States Supreme Court and was again sustained. As to the plea of
violation of freedom of contract the court says, after discussing the
right of the State to make its own terms on public work,
* * It
can not be deemed a part of the liberty of any contractor that he be
allowed to do public work in any mode that he may choose to adopt,
without regard to the wishes of the State * * * . ” 3 The decision
in this case was followed in the next year by the State of Washington.4
The contrast between these cases and those State cases which
have taken the opposite point of view is striking. New York before
the Atkin case and Indiana afterwards had cases passing on substan­
tially the same questions. The New York law required that the
rate of wages on public work be the prevailing rate in similar em­
ployments in the locality in which the work was done. A contractor
who took public work in New York City paid less than the current
1 United States v. Martin, 94 U . S. 400-404, October term, 1876.
2 State v. A tkin, 64 Kans. 174-180, Jan. 11, 1902.
3 Atkin v. Kansas, 191 U . S. 207-224, p. 222, N ov. 30, 1903.
* In re Broad, 36 W ash. 449-462, Dec. 30, 1904. The following remark of the court as to suits of this sort
^s suggestive: “ It is a notable fact, in this connection, that the alleged constitutional right of the laborer to
contract his labor at any price which seems to him desirable is not in this, or any other reported case, a
claim urged b y the laborer, but the earnest contention in his behalf is made b y the contractors who are
reaping the benefits of the violation of that contract in paying the laborer a less remuneration than he is
entitled to under the statute * * **.”




CHANGING ATTITUDE OF THE COURTS.

157

wages and sued to compel payment on the contract which was with­
held under the provisions of the law. The court declared the law
unconstitutional because it denied to the city and the contractor
the right to enter agreements as to the rate of wages. It was de­
clared void also because the practices prohibited were in themselves
innocent and harmless.1 This extreme opinion was later modified
as to the rights of the city, and employment directly by the city was
admitted to be under the control of the State.2
Even this modification of the opinion did not meet the approval
of the people of the State, and a constitutional amendment was
passed giving the legislature authority to regulate labor conditions
on public works whether done through contractors or directly.
The legislature then reenacted the law in practically its original
form and the courts have sustained the law.3
An Indiana law required that upon public work of the State or its
subordinate agents, unskilled laborers should be paid not less than
30 cents per hour. The law was declared void by the State supreme
court because it denied due process, and was class legislation. The
remarkable statement is made that the counties, cities, and towns
are corporations with a right to make contracts for the expenditure
of money raised by local taxation and are not subject to the arbitrary
control of the legislature.4
It is hardly to be contended in the light of the Atkin case and
the generally accepted doctrine as to the legal position of American
municipalities that either the New York or the Indiana case is good
law. Whatever may be the uncertainties as to other classes of legis­
lation affecting labor, there is practically no doubt that we are coming
to recognize the right of the State to regulate the conditions Upon
which its own work shall be done without any limitation due to
the “ liberty of contract” of him who does the work.
LABOR CONTRACTS OF CORPORATIONS.
This sort of limitation of free contract is one which began to be
sustained almost a decade before even State v. Wilson.5 It has
been generally recognized that artificial persons have not the same
rights as natural persons, and the tendency seems to be to hold
that, as to contract, the individual's right is not so extensive that
he can insist on the right to enter any contract he pleases even with
an artificial person. This, taken with the right of the State to limit
the contracts which a corporation may enter, insures the right to
control the hours, conditions, and wages of labor for corporations even
1 People ex rel. Rodgers v. Coler, 166 N . Y . 1-44, Feb. 26, 1901.
2 R yan v. City of New Y ork, 177 N . Y . 271-292, Jan. 29, 1904.
3 People ex rel. W illiam s, Eng. & Cont. Co. v. Metz, 193 N . Y . 148-166, Oet. 13, 1908.
4 Street v. Varney Electrical Supply Co., 160 Ind. 338-348, Apr. 1, 1903.
5 61 K ans. 32-47, N ov. 11.1899; also 7 Kans. A p p. 428-446, M ay 19, 1898.




1 58

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

to a greater extent than is ordinarily the case under the police power.
The first case adopting this argument was one in Maryland in 1880,1
but the doctrine was not followed in any other State until 12 years
later. Then within seven years six courts, including the Supreme
Court of the United States, approved the argument.0
Both these classes of cases may be supported by arguments which
consider the character or position of the employers, and the right
of the State to stipulate the conditions upon which contracts may
be entered with them, quite apart from any consideration of the police
power. Laws regulating labor on public work, or on works carried
on by artificial persons dependent on the State for their franchises,
do not raise the same question of freedom of contract as is raised
when the agreement involves two natural persons. As the court
says in a West Virginia case “ * * * where peculiar privileges are
granted by the State, peculiar responsibilities supervene, and special
regulations may be proposed. ” 3
ASCERTAINMENT OF W
AGES.
A third class of regulations has relation to the means to be used in
the ascertainment of wages. These laws must rest solely on the police
power for justification unless the authority for regulation can be
brought under one of the preceding classes. The court in the State
v. Wilson case adopts the view that the regulation is one to prevent
fraud and does not interfere with the actual contract as to how much
shall be paid the laborer for a day’s work or for mining a ton of coal.
Only one other State, Arkansas, has a decision sustaining a law of
this sort.4 All other States hold such statutes—chief among which
are the screening laws—to be unjustifiable under the police power.
The West Virginia case, State v. Peel Splint Coal Co., argues that
the regulation is justified under the police power, but the main reli­
ance of the court is that the dispute involves a corporation which
may be subject to special burdens.
Fortunately, however, the Arkansas case was carried to the Supreme
Court of the United States and it is now authoritatively established
that no Federal guaranty can be pleaded as a bar to such regulation.
If laws of this character are hereafter held void the State constitu­
tions alone must furnish the reasons.
1 Shaffer & Munn v. Union Mining Co., 55 M d. 74-87, Dec. 9, 1880.
2 State v. Brown & Sharpe Mfg. Co., 18 R . I. 16-38, Oct. 3, 1892.
State v. Peel Splint Coal Co., 36 W . V a . 802-858, Oct. 6, 1892.
Leep v. R ailway Co., 58 Ark. 407-446, Feb. 3, 1894.
Dugger v. Insurance Co., 95 Tenn. 245-261, June 22, 1895.
Railway Co. v. Paul, 64 Ark. 83-96, M ay 1, 1897.
Railway Co. v. Paul, 173 U . S. 404-410, Mar. 6,1899.
B ut the same doctrine in the same period was passed upon and rejected b y four States: State v. Haun,
61 Kans. 146-180, Dec. 9,1899; Johnson v. Goodyear Mining Co., 127 Cal. 4-21, N ov. 20,1899; Braceville Coal
Co. v. People, 147 111. 66-75, Oct. 26,1893; State®. Missouri Tie & Timber Co., 181 Mo. 536-563, M ay 11,1904.
3 State v. Peel Splint Coal Co., 36 W . V a . 811, Oct. 6, 1892.
4 McLean v. State 81 Ark. 304-311, Dec. 10, 1906.




CHANGING ATTITUDE OF THE COURTS.

159

The Arkansas case is valuable also because the court drops any
attempt to argue that the right of contract is not interfered with,
but admits the limitation and then justifies it under the police power.
Freedom of contract in the United States Supreme Court has ceased
to be the last word in determining the constitutionality of social
legislation. The adoption of the contrary holding would have made
advance in legislation on labor questions impossible except to the
extent that the courts were willing to adopt a meaning for freedom
of contract which would not have been indicated by the words.
The law in question was a screen law, the phraseology of which
was practically the same as that of the Illinois act held void in Ramsey
v. People.1 The court cites the cases in which freedom of contract
had previously been recognized by the Supreme Court as a right not
unlimited in character and declares:
*
* * when the right to contract * * * conflicts with laws declaring the
public policy of the State, enacted for the protection of the public health, safety, or
welfare, the same may be valid, notwithstanding they * * * limit the freedom
of contract. * * * It is * * * the established doctrine of this court that the
liberty of contract is not universal, and is subject to restrictions passed by the legis­
lative branch of the Government in its exercise of. its power to protect the safety,
health, and welfare of the people.
The legislature, being familiar with local conditions, is, primarily, the judge of the
necessity of such enactments. The mere fact that the court may differ with the
legislature in its views of public policy, or that judges may hold views inconsistent
with the propriety of the legislation in question, affords no ground for judicial inter­
ference unless the act is * * * palpably in excess of legislative power.

The court then cites the investigation of the United States Indus­
trial Commission under the act of Congress of June 18, 1898, which
showed the existence of evils in the weighing of coal at mines which
needed remedy, and concludes:
We are unable to say, in the light of the conditions shown * * * and in the
necessity for such laws, evinced in the enactments of the legislatures of various States,
that this law had no reasonable relation to the protection of a large class of laborers in
the receipt of their just dues and in the promotion of the harmonious relations of
capital and labor engaged in a great industry in the State.2

M
EDIUM OF PAYMENT.
A fourth class of regulation which seems destined to be supported
in an increasing number of States is that regulating the medium in
which wages must be paid, requiring that they be paid in money or
negotiable paper. The abuses connected with company stores and
the payment of employees in scrip have long been familiar.
1 142 111. 380-387, Oct. 31, 1892.
2 McLean v. Arkansas, 29 Sup. Ct. 207-209'.
It should be noted, however, that though the United States Supreme Court sustains laws of this sort the
majority of State decisions are to the contrary, though in some States the regulations would stand when not
applied to natural persons.




1 60

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

Their prototypes, the old English truck acts, date from 1464 and
can thus be argued to involve a principle adopted along with the
English common law.1 They were extended from one branch of
manufacture to another and finally collected and consolidated into
one act by Truck Act, 1, 2 William IV, 1831, c. 37. They were part
of a system of regulation of the relations of master and servant, the
latter being deemed the weaker and, therefore, liable to oppression
by the former.2 Laws of this sort are often objected to because they
merely remove one sort of coercion to make way for another. Even
if sustained it is asserted that they do not prevent the employer from
instituting a more covert coercion in trading which will escape the
terms of the law. But remedial statutes of this sort are not to be
judged by the abuses actually remedied so much as by the abuses
prevented by the knowledge that the law forbids the act,3 and in
any event the efficiency of the law should be a matter for the judg­
ment of the legislature, not for that of the court. The first case in
the United States sustaining legislation against such abuses was the
contest decided in Hancock v. Yaden already discussed.
The legality of laws regulating the issuance of scrip came up in
two cases in Tennessee a decade after the Hancock v. Yaden decision.
In the leading case, Harbison v. Knoxville Iron Co., a law much more
skillfully worded than many of those similar acts which have been
annulled in State courts was involved. It was general in terms,
enforceable by ordinary suit, and allowed the issuance of scrip pro­
viding it was redeemable in money at a pay day not more than 30
days from the date of issuance. It was unimpeachable on any con­
stitutional ground, if not as a violation of freedom of contract. The
court’s well-argued opinion 4 holds:
* * * The right of contract is undoubtedly an inherent part of the right of
liberty, and also of the right of property, and deprivation of it is equally forbidden.
But none of them are unlimited rights. All are subject to the law’s control, and may,
at any time, be abridged or enlarged or even destroyed within constitutional bounds.
The act does, undoubtedly, abridge or qualify the right of contract. * * * The
legislature evidently deemed the laborer at some disadvantage under existing laws
and customs, and, by this act, undertook to ameliorate his condition in some meas­
ure. * * * Its tendency, though slight it may be, is to place the employer and
employee upon equal ground in the matter of wages, and so far as calculated to accom­
plish that end, it deserves commendation.5
1 This would justify these laws by the same arguments used to sustain usury acts.
2 Archer v. James, 2 Best & Smith, 59-105, N ov. 4, 1859. “ * * * They were applied first to one branch
of manufacture * * * then * * * to others * * * till they embraced the whole or nearly the
whole of the manufactures of England. They established the obligation * * * of uniformly paying the
whole wages of artificers in the current coin of the realm. * * * They were * * * part of a system of
legislation regulating the relation of master and workman, this part of it being in favor of the workman
Who * * * was deemed weaker than his master. * * * On the other hand existed regulations in
favor of the master. * * * These were the laws against combinations and strikes.” Byles, J., at p. 82.
3 See B yles, J., in Archer v. James, 2 Best & Smith, 83.
* Harbison v. Knoxville Iron Co., 103 Tenn. 421-428, N ov. 8, 1899.
6 Idem , 438, 440. T o the same effect Dayton v. Barton, 103 Tenn. 604-615, N ov. 20,1899.




CHANGING ATTITUDE OF THE COUNTS.

161

Two years later the case came up before the Supreme Court of the
United States and was sustained, the court quoting at length the
Tennessee decision and modifying none of its conclusions.1
Most State courts which have passed on the point, however, continue
to hold scrip payment laws unconstitutional,2 though the grounds
alleged are not always based on the contract right, and in some
instances decisions on other branches of social legislation seem to
indicate that if the same question were raised at the present time the
decision might be modified.
TIME OF PAYMENT.
Some courts are coming to recognize that the time of payment of
wages may properly be regulated by the legislature. If the laborer
is not paid at reasonably short intervals his need of credit or his
inability to leave the district in which he is already employed may be
used to limit his actual freedom. Ten States now have acts requiring
weekly payment.
Court decisions have not been reached on all these laws. Where
they have been held void the court has usually alleged an inter­
ference with contract in addition to violation of the State constitu­
tion. Weekly payment laws have been held unconstitutional in
Indiana,3 Illinois, and Ohio 4 as a deprivation of property without
due process. In Pennsylvania semimonthly payments are held void
1 Knoxville Iron Co. v. Harbi^on, 183 U . S. 13-22, Oct. 21, 1901; Dayton Coal & Iron Co v. Barton, 183
U . S. 23-25, Oct. 21, 1901.
2 Godcharles v. Wigeman, 113 Pa. St. 431-437, Apr. 28, 1886.
Frorer v. People, 141 111. 171-188, June 15, 1892. Void for classification; included only corporations, com­
panies, and associations.
State v. Paint Rock Coal & Coke Co., 92 Term. 81-84, N ov. 18, 1892. H eld void because of offense to
peculiar provision of State constitution on imprisonment for debt.
State v. Loomis, 115 Mo. 307-336, Mar. 25, 1893.
Marsh v. Poston & Co., 35 O. L . B . 327-331, May 19, 1896. Void because discriminatory.
State v. Goodwill, 33 W . V a. 179-187, N ov. 18, 1889. Void as special legislation, but a law of similar
character which did not classify employers was sustained b y an evenly divided court in State v. Peel Splint
Coal Co., 36 W . V a. 802-858, Oct. 6, 1892.
State v. Fire Creek Coal & Coke Co., 33 W . V a . 188-191, N ov. 18,1889. Void for interference with contract.
Luman v. Hitchens Bros. Co., 90 Md. 14-29, N ov. 23, 1899. Void as violating equal protection.
State v. Haun, 61 Kans. 146-180, Dec. 9, 1899. Void for discrimination and for interference with contract.
Dixon v. Poe, 159 Ind. 492-500, N ov. 25, 1902. Void as special legislation,though the act had defectsin
drafting which may explain the decision.
K ellyville Coal Co. v. Harrier, 207 111. 624-629, Feb. 17, 1904. Void as special legislation and because
of contract right.
State v. Missouri Tie & Timber Co., 181 Mo. 536-563, M ay 11,1904.
Leach v. Missouri Tie & Timber Co., I l l M o. A p p . 650-653, A p r. 4, 1905.
Jordan v. State, 51 T ex. Crim. A p p . 531-539, June 5, 1907.
State v. Nashville, etc. R y . Co., 124 Tenn. 1-15, Mar. 4, 1911.
The question of freedom of contract does not arise in all of these cases, and even where it does arise it is
not always the sole or main ground on which invalidity is urged. Often peculiar State constitutional
provisions are offended. The law m ay be special where it is required to be general; it would be invalid
because it affects natural persons, whereas it would stand if it applied only to corporations; or some other
local consideration m ay influence the decision.
3 Republic Iron & Steel Co. v. State, 160 Ind. 379-392, A pr. 8, 1903.
.
4 Braceville Coal Co. v. People, 147 111. 66-75, O ct. 26, 1893; State v. Lake Erie Iron Co., 33 O. L . B . 6-8
June 19, 1894; classification was also objected to in this case.

105598°— 18— Bull. 229-------11




162

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

for that reason and because of offense to State constitutional pro­
visions relating to special legislation.1
Monthly payment laws have been held to violate the constitution
in Indiana because of discrimination against the classes to which the
laws applied. The element of due process relied upon in the similar
case on weekly payments was not urged,2 and in California the courts
in two cases have held void laws creating preferred liens for laborers
for wages not paid weekly or monthly, regardless of whether the
employer is a corporation or a natural person.3 The acts were declared
unconstitutional because of discrimination, for violation of freedom
of contract, and for technical objections to the right of attachment
created.
Contrary to these holdings are the decisions in Rhode Island where
periodical payment has been sustained as applied to corporations,*
and in Massachusetts and Vermont where even individuals are held
to be properly under the act.5
In this class of cases should be mentioned the laws which fix the
time of payment under special circumstances. Laws are found
which require payment of the employee at the time of his discharge
irrespective of the time of the regular pay day, under penalty of
adding a percentage to the amount due or continuation of wages for
a period at the former rate, in case the law is not obeyed. The latter
sort of regulation has been sustained as applied to corporations in
Arkansas,6 but a Texas law applying to railroad employees only has
been held void as a discrimination between classes.7
The later cases, especially those in the Supreme Court of the
United States, indicate that the fourteenth amendment with its due
process guaranty, which is supposed to include a right of liberty of
contract, is not to be allowed to stand in the way of the progress of
social legislation. The Lochner case represents a philosophy of
private right which is fast yielding to a philosophy of social control.
We now have declarations by the United States Supreme. Court8
which uphold:
1. The regulation of labor conditions on public work.
2. The control by the State of the means to be used in ascertain­
ing wages, through screen laws and the like.
1 Com. v. Isenberg, 4 Pa. Dist. Ct. 579-588, Aug. 3, 1895.
2 Toledo, etc. R y . Co. v. Long, 169 Ind. 316-318, N ov. 26, 1907.
3 Slocum v. Bear Valley Irrigation Co., 122 Cal. 555-557, Dec. 5, 1898; Johnson v. Goodyear Mining Co.,
127 Cal. 4-21, N ov. 20, 1899.
4 State v. Brown & Sharpe Mfg. Co., 18 R . I. 16-38, Oct. 3, 1892.
5 In re House B ill N o. 1230, 163 Mass. 589-596, M ay 6, 1895; Lawrence v. Rutland Railroad Co., 80 V t.
370-390, N ov. 16, 1907.
e Union Sawmill Co. v. Felsenthal, 84 Ark. 494,495, Dec. 9, 1907.
7 San Antonio & A . P . R . R . Co. v. W ilson, 4 Tex. Civ. A p p. (W illson) 565-576, June 25, 1892.
8 B . F . Moore: The Supreme Court and unconstitutional legislation, in Columbia University Studies
in H ist. Econ. & P u b. Law , 1913, vol. 54, N o. 2, pp. 99-158.




CHANGING ATTITUDE OF THE COURTS.

163

3. The regulation of the medium in which wages are to be paid,
resulting in the removal of at least some of the abuses connected
with scrip payment and company stores.
4. The regulation of the minimum rate of wages to be paid women
and children in private employments.
There can be little doubt that a law regulating the time of wage
payments can be drawn which w be sustained. Besides there are
rill
the State cases adopting the more liberal view of the power and duty
of the State. The outlook for wage-payment legislation in the face
of these facts can not be considered discouraging. We have still the
possibility of reactionary decisions such as the Missouri case, which
though later, does not follow the holding of the Supreme Court in
McLean v. Arkansas; but with the development of a public opinion
more favorable to the real rights of man as against the rights of
property, even such failure by the courts to realize the demands of
our industrial life will become less frequent, if they do not disappear.




C H A P T E R

X .— I S

F R E E

C O N T R A C T

A

C O N S T IT U T IO N A L

R IG H T ?

The natural-law philosophy that underlies the political theories
of our Supreme Court and that, partly on that account, partly for
other causes, continues to be the background from which most of our
State courts speak, keeps alive the idea of natural rights—unex­
pressed constitutional rights which the legislature can not infringe
even though in neither State nor Federal constitutions is there any
mention of their existence. To be sure, these inalienable rights are
spoken of only occasionally in any other form than dicta supporting
rights sustainable under some written constitutional provision, but
the contention that there are inalienable rights appears early in our
history. The Declaration of Independence holds their existence as
“ self-evident.” In 1798 Mr. Justice Chase, in the Supreme Court of
the United States, declared:
*
* * I can not subscribe to the omnipotence of a State legislature, * * *
or that it is absolute and without control; although its authority should not be ex­
pressly restrained by the constitution, or fundamental law, of the State. * * *
To maintain that our Federal, or State, legislature possesses such powers, if they
(have) * * * not been expressly restrained, would, in my opinion, be a political
heresy, altogether inadmissible in our free republican governments.1

Similar expressions run through our Federal cases even to the
present time.
“ It may well be doubted whether the nature of society and of gov­
ernment does not prescribe some limits to the legislative power
* *
says Mr. Chief Justice Marshall in 1810,2 and in 1874 Mr.
Justice Miller insists that—
It must be conceded that there are such rights in every free government beyond the
control of the State. A government which recognized no such rights (would be)
* * * after all but a despotism * * *. There are limitations * * * which
grow out of the essential nature of all free governments. Implied reservations of
individual rights, without which the social compact could not exist * * *.3

In 1884 we are told that acts under the police power are valid when
they “ do not conflict with any constitutional inhibition or natural
right * * *.” 4 Examples of similar language could be multiplied
almost at will from the State cases. The Massachusetts court de­
clares that certain rights “ * * * are recognized in the organic
law of all our free American States. A statute which violates any
of these rights is unconstitutional and void, even though the enact1 In Calder v. B ull, 3 Dallas, 387-389, August term, 1798.

2 Fletcher v. Peck, 6 Cranch, 135, February term, 1810.
3 Loan Association v. Topeka, 20 W a ll. 662-663, October term, 1874.
* Butchers' Union v. Crescent City Co., I l l U . S. 754, M ay 5, 1884.

164




IS FREE CONTRACT A CONSTITUTIONAL RIGHT ?

165

ment of it is not expressly forbidden * * *. ” 1 The Wisconsin
supreme court in a late case thinks that “ the fallacy of the idea that
the Government creates or withholds property rights at will is very
apparent * * * ” and a lengthy argument is given to prove that
certain inherent rights existed in the people prior to the making of
any of our constitutions is
* * a fact recognized and declared
by the Declaration of Independence, and by practically every State
constitution * * *. ” 2
Among these unexpressed rights, which, nevertheless, the Constitu­
tion protects, as the courts have often intimated is to be found the
right to contract, at least as it is possessed by natural persons.
*
* Natural persons do not derive the right to contract from
the legislature * *
declares an Arkansas court.3
a* * * This denial of the right to contract,” says the Supreme
Court of Missouri in passing on a company-store act “ is based upon
a classification which is purely arbitrary, because the ground of the
classification has no relation whatever to the natural capacity of per­
sons to contract,” 4 and the Indiana court, in declaring a law uncon­
stitutional, states that “ * * * even if no express provision of any
constitution forbade such legislative interference with the right of
contract, it would be void for the reason that the authority to fix
by contract the prices to be paid for property, including human labor,
is not ordinarily within the domain of legislation * * *. ” Such
a law is “ * * * objectionable as an invasion of natural and
constitutional rights * * *. ” 5
But these are not the main grounds on which the courts have
relied in declaring legislation void. From the first, indeed, there
has been strong dissent as to the existence of any inalienable rights.
In the Calder v. Bull case Justice Iredell, concurring in the decision,
dissented as to the dicta on unexpressed constitutional rights. He says:
*
* * It is true that some speculative jurists have held that a legislative act
against natural justice must, in itself, be void; but I can not think that, under * * *
a government * * * composed of legislative, executive, and judicial departments
* * * established by a Constitution which imposed no limits on the legislative
power * * * any court of justice would possess a power to declare it so. If
* * * the Legislature of the Union or the legislature of any member of the
Union, shall pass a law within the general scope of their constitutional power, the
court can not pronounce it to be void merely because it is, in their judgment, con­
trary to the principles of natural justice * * *.6

This is practically the accepted view of the courts, however
much they may insist that there are rights to which every man
1 Commonwealth, v. Perry, 155 Mass. 121, Dec. 1, 1891.
2 Nunnemacher v. State, 129 W is. 199, June 21, 1906.
3 Leep v. St. Louis, Iron Mountain & Southern R y . Co., 58 A rk. 427, Feb. 3, 1894.
4 State v. Loomis, 115 Mo. 315, Mar. 25, 1893. Quoted with approval in State v. Mo. Tie & Timber Co.,
181 Mo. 536-563, May 11, 1904.
5 Street v. Varney Electrical Supply Co., 160 Ind. 341, 346, Apr. 1, 1903.
6 Calder v. Bull, 3 Dallas, 398-399, August term, 1798.




166

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

is born. With the exception of a few doubtful State cases1 there
are no decisions where natural rights have appeared as more
.than dicta to support conclusions arrived at on specific constitutional
grounds. The most that can be said for unexpressed constitutional
rights is stated by Cooley in his Constitutional Limitations. There
are some rights, he says, which “ spring from the very nature of
free governments/’ but his discussion admits that “ the courts can
enforce only those limitations which the Constitution imposes; not
those implied restrictions which, resting in theory only, the people
have been satisfied to leave to the judgment, patriotism, and sense
of justice of their representatives. ” 2
For any real guaranty of these unexpressed rights we must depend,
therefore, upon some expressed constitutional guaranty which will
include them by implication. In the case of freedom of contract
the phrases usually construed by the courts to be thus comprehen­
sive are the clauses referring to the protection of personal liberty
and property, especially the latter, which on this point is held to
include the former. A typical point of view is that, “ Labor is prop­
erty. It is exchangeable for food, raiment, and comforts, and may
be bought and sold and contracts made in relation thereto, the
same as concerning any other property/ 93
The latter part of this statement is open to question. Mr. Cooley
says that—
when the Constitution was adopted there were known and settled rules and usages
forming a part of the law of the country in reference to which the Constitution has
evidently been framed, * * * the Constitution itself must be understood as re­
quiring them because * * * it has in effect adopted them as part of itself.4

What were these rules and customs which thus became parts of
the Constitution ? It was long contended that the use of the jury
was a custom thus adopted and therefore beyond statutory modi­
fication, a view now repudiated by the Supreme Court.5 It has
been even more strenuously asserted that the unrestricted right to
contract with respect to labor is one which must be protected as
a part of the Constitution. But this contention also is doubtful.
There were, at the time of the adoption of our Constitution,
statutes of long standing in England which regulated the employ­
ment of servants and laborers. It is patent that they could not have
existed if it had been English belief that the contract relation in­
volved a property right which must be left untouched by legislation.
If the right to enter into contracts with respect to labor was a prop­
erty right, it was one which could be regulated by law. It did not
1 State v. Redmon, 134 W is. 89-116, Dec. 13, 1907, for example.
2 T . M. Cooley: Constitutional Limitations, ed. 1890, Boston, p. 152.
3 Republic Iron & Steel Co. v. State, 160 Ind. 385, Apr. 8, 1903.
4 T . M. Cooley: Constitutional Limitations, ed. 1890, Boston, p. 152.
&Hurtado v. California, 110 U . S. 516-558, Mar. 3, 1884.




IS FREE CONTRACT A CONSTITUTIONAL RIGHT?

167

stand in exactly the same legal position as a man’s right to a dwell­
ing owned in fee simple. It was not then true that contracts to
labor could be made just as was allowed concerning any other
property. ’ ’
At that time it seems to have been thought in America, too,
that a contract to perform personal services was not an ordinary
property right but involved the exercise of a liberty or privilege
rather than a property right in the usual sense of the term. Mr.
Justice O. W. Holmes states that:
*
* * So far as we are aware, the capacity to make such a contract was not, in
the discussions concerning the (Massachusetts) constitution, ever spoken of as prop­
erty, although that capacity may be necessary for the acquisition of property * * * .1

Further, during the Revolutionary period the States passed laws
regulating the prices of commodities and in some respects the prices
of labor,2 indicating that regulations of the right to enter into con­
tracts were not in conflict with even the natural rights enthusiasm
of the time. It is not too much to say that neither in England nor
in America at the time of the adoption of the Constitution was there
any generally accepted idea that the right to enter into contracts
was a property right in the same sense that there might be a right to
property which arose by an executed contract. It was not the
accepted doctrine either in England or America that an inalienable
or unalterable character should be recognized as a part of the “ right
to contract.”
Limitations in the right of contract have been recognized at com­
mon law, by equity, and in the legislation which has been sustained
under our constitutions. Though the examples which follow do not
attempt to exhaust the list that might be given, they will serve to
illustrate the sorts of restraint which already exist in our law.
At common law some contracts have always been void. Married
women were under general disability to make contracts during cov­
erture, and, though these disabilities have been largely removed by
statute, it still remains the rule that husband and wife can not make
contracts with each other.
Equity, too, has recognized limitations on free contract. Sailors’
contracts have long been closely scrutinized by the courts to protect
what is assumed to be a class who have peculiarly weak bargaining
power. Needy borrowers are not allowed to destroy their equities
of redemption by any collateral provisions, though their need and
the arguments of the lenders may convince them that such action be
ever so necessary.
But the legislation which the courts have sustained is the strongest
argument against considering freedom of contract an unqualified
1 In re House Bill No. 1230, 163 Mass. 592, May 6, 1895.
2 See Massachusetts Provincial Statutes, 1776, 1777, ch. 14, 46; 5 Provisional Laws (State ed.), 583, 642.




1 68

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

property right. Usury legislation has so long been sustained as to
constitute almost a class by itself. Laws have been passed which
forbid agreements by parties that part payment of a debt shall extin­
guish it.1 Contracts waiving homestead exemptions have been for­
bidden.2 A debtor can not waive stay of execution by contract.3
Seamen’s wage contracts have been regulated by Federal law.4 Con­
tracts not to resort to courts have been prohibited.5 A contract not
to remove a case to a Federal court is void.6 Parties have been for­
bidden to contract without limitation* that they will not engage in a
particular business.7 Certain notes must have “ given for a patent ”
written on the face.8 Priority of claims may be regulated by the
legislature.9 Liens for miners’ wages may be given preference over
other claims.1 Agreements made to evade laws imposed on grounds
0
of public policy, such as laws abolishing the fellow-servant doctrine
on railroads, are illegal.1 Laws have been sustained even though
1
they prohibit parties from contracting to pay attorneys’ fees.1 The
2
Federal courts uphold restraint upon the contracting powers of
insurance companies.1
3
By custom before the adoption of the Constitution certain busi­
nesses were considered legitimate. If the law were to remain fixed
at the standard then prevalent, these businesses and contracts in
relation to them would not now be subject to limitation, but the
sale of intoxicating liquors and the running of lotteries have now
been subjected to severe police regulation or prohibited altogether.
Such limitations of contract the courts have repeatedly sustained.1
4
Liberty of contract is a concept that, in the form in which it is plead ed
by the followers of laissez faire, is a development of the last three
decades.1 It is an outgrowth, not a true part of the liberalistic ideas
5
1 Osborn v. Hoffman, 52 Ind. 439-442, M ay term, 1876.
2 Maloney v. Newton, 85 Ind. 565-571, November term, 1882; Kneettle v. Newcomb, 22 N . Y . 249-253,
September term, 1860; Curtis v. O ’ Brien, 20 Iowa, 376-378, June 9, 1866; Moxley v. Ragan, 73 K y . 156-159,
Mar. 14, 1873.
3 Develin v. W ood, 2 Ind. 102-105, June 3, 1850.
4 30 St. at L . 755,763, ch. 28, U . S. Comp. Stat. 1901, pp. 3071, 3080; Patterson v. Bark Eudora, 190 U . S.
169-179, June 1, 1903.
6Dugan v. Thomas, 79 Me. 221-223, Mar. 3,1887; Bauer v. Samson Lodge, 102 Ind. 202-271, June 13, 1885.
6Insurance Co. v. Morse, 20 W all. 445-459, October term, 1874.
7Taylor v. Saurman, 110 Pa. St. 3-9, Apr. 24, 1885.
e New v. W alker, 108 Ind. 365-376, Dec. 7, 1886; Herdic v. Roesslcr, 109 N . Y . 127-134, Apr. 10, 1888.
9 United States v. Fisher, 2 Cranch, 358-405, February term, 1805.
10 Warren v. Sohn, 112 Ind. 213-221, N ov. 3, 1887.
1 Missouri Pacific R . R . Co. v. Mackey, 127 U . S. 205-210, Apr. 23, 1888.
1
12 Churchman v. Martin, 54 Ind. 380-389, November term, 1876.
13 Orient Ins. Co. v. Daggs, 172 U . S. 557-567, Jan. 16, 1869; Phoenix Ins. Co. v. L evy, 12 Tex. Civ. App.
45-48, Dec. 4, 1895.
14 Stone v. Mississippi, 101 U . S. 814-821, October term, 1879; Douglas v. K entucky, 168 U . S. 488-505,
N ov. 29, 1897; Giozza v. Tiernan, 148 U . S. 657-662, Apr. 10, 1893; K idd v. Pearson, 128 U . S. 1-26, Oct. 22,
1888; Crowley v. Christensen, 137 U . S. 86-95, N ov. 10, 1890.
is A t the present time the phrase is not made a topic in the more serious recent discussions of the Con­
stitution— see W illoughby on the Constitution (1910) and W atson on the Constitution (1910)— though
of course the principles it involves are considered at length under due process of law and various other
heads.




IS FREE CONTRACT A CONSTITUTIONAL RIGHT ?

169

as to legislation prevalent in the eighteenth and early nineteenth
centuries. The courts which insist on freedom of contract as a
constitutional right have adopted as a part of our Constitution the
economic theory prevalent at the time the Constitution was made,
but they have not worked out a line of argument consistent with
history nor consistent with that theory. Reference is made in the
decisions to a “ natural capacity of persons to contract” 1 and laws
are held void because of conflict with “ natural and constitutional
rights, ” 2 but these expressions have no definite meaning. The rights
referred to are not rights under the common law because there were
limitations upon contract at common law. These limitations, it is
admitted, it is within the power of the legislature to abolish. They
stand on no footing different from that held by other common-law
rules. But if these rights to contract refer to common-law capacity
merely, then they have no special protection under the constitutions,
a conclusion which the courts would not accept. Do the courts
mean, however, that no incapacities can be created other than those
which existed under common law, though these may be abolished
if the legislature so wills? Have our constitutions adopted some
provisions of the common law as unalterable? Have they deter­
mined that while the common-law capacities may be widened they
can not be decreased ? Some cases seem to indicate that that is the
standard adopted. In Ritchie v. People the court seems to believe
that the common-law capacities of married women can not be further
limited,3 but that standard can not be maintained in the face of the
numerous laws and decisions which have created incapacities un­
known to the common law. The same court which issued the
Ritchie decision has in fact since reversed its opinion as to the power
of the legislature over the contractual rights of women.4
The fact is that in the present state of our decisions there is no right
of free contract which lends itself to precise statement. The more
vague and general the terms employed the greater the chance that
the definition will receive the assent of a large number of critics.
Prof. Freund has defined what can be done under the police power
to affect the freedom of contract as follows:
* * * Where a contractual relation is voluntarily entered into, rights and
obligations, which are conformable to the nature of the relation, may be defined
by the law and made conclusive upon the parties irrespective of stipulations attempt­
ing to set them aside, especially where such stipulations involve the waiver of valuable
personal rights, or where tney are virtually imposed by one party without power of
choice on the part of the other.5
i State v. Loomis, 115 Mo. 307-336, Mar. 25, 1893.
* Street v. Varney Electrical Supply Co., 160 Ind. 338-348, Apr. 1, 1903.
3 Ritchie v. People, 155 111. 98-123, Mar. 14, 1895.
< Ritchie v. W aym an , 244 111. 509-531, Apr. 21, 1910; see also State v. Muller, 48 Oreg. 252-258, June 26,
1906; Muller v. Oregon, 28 Sup. Ct. 324-327, Feb. 24, 1908.
&Ernst Freund: Police Power, Chicago, 1904, sec. 503, p. 539.




1 70

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

But such a definition destroys the categorical standard set up by
the extreme advocates of laissez faire. It opens a wide field for
difference of opinion as to what the terms mean.
What are the rights and obligations which would be conformable
to a particular contract? They would evidently depend upon the
character of the agreement, which, as we have seen, is not a fixed
quantity but often depends on facts rather than law, and the facts
are the same in no two sorts of contracts nor in the same sort of
contracts at different times. It will, therefore, be exceedingly dif­
ficult to define the rights and obligations referred to, especially if
by ‘‘ law” is meant what the court will support rather than what the
legislature enacts. Further, what are the valuable personal rights
spoken of in the latter part of the definition? Both sides might
claim the protection of their personal rights; the one, those alleged to
be guaranteed by the Constitution; the other, those assured by the law
alleged to infringe the Constitution. Then the question would arise
here, as before, whether the will of the legislature or of the courts should
be the final measure in interpreting rights under that instrument.
But this is not meant as criticism of the definition. It is only
meant to show that broad definitions are the only ones that can be
attempted and that even they lead us but a short distance in the
search for the standard which we shall probably adopt as the limit
beyond which the legislature can not go. The difficulty we encounter
is due partly to the confused state of our law, partly to the nature of the
facts with which the courts and legislature are called upon to deal.
Is freedom of contract, then, a constitutional right? Not in the
sense in which the individualist uses the term. The decisions which
maintain it in its unqualified terms represent a fast passing legal and
economic philosophy. They do not express a constitutional princi­
ple. Freedom of contract, if the phrase be used at all, must be held
to represent that residuum of individual free choice in contract which
remains after society has determined what shall not be done. It is
illogical to suppose that the framers of the Constitution intended to
bind society to any fixed economic doctrine popular at the time the
instrument was made, but which did not allow for adjustment to new
conditions. They could not have meant to establish as a part of the
Constitution something which in its strict form was not adhered to
in either the history or contemporary practice of Anglo-Saxon peo­
ples. Freedom of contract, if indeed it was in the minds of those
who made the Constitution, meant a broad principle of protection,
not an arbitrary, logical rule. It is no well-defined sphere of action
into which the legislature may not intrude, but one constantly chang­
ing, a constitutional right which, if it be a right at all, is not only
unexpressed, but, because of its shifting character, unexpressible.




IS FREE CONTRACT A CONSTITUTIONAL RIGHT ?

171

Even the representatives of the English school of thought which
made laissez faire so prominent a part of their country's national
policy do not argue for the standard indorsed by the extreme deci­
sions of our courts. They have adopted, in fact, the opposite phi­
losophy. The new liberalism of contemporary English politics is
olten charged with being false to the ideals of the true laissez faire
philosophy. That it has gone far from the standards for which the
Cobdenites strove is undoubted. Present-day liberalism no longer
insists that the unrestricted action of the individual is essential for
all progress and the first condition of true liberty. The viewpoint
of the school of Cobden was economic; modern liberalism has broad­
ened its horizon to include the social as well as the economic good
of the community.
The chief ambition of the Cobdenites was to free foreign trade;
that accomplished the good workman would get the full value of
his work and become free. Restraint which sacrificed the common
good to that of a class was to be broken down. But Cobden himself
admitted that the State might step in for the protection of the child
laborer. Free contract could not be applied in strictness to him.
The community owed it to itself that not only should oppression by
restraint be abolished but that oppression caused by a false idea of
liberty should not be tolerated. Once this argument was admitted
it was capable of expansion. If the child was a weak bargainer,
might not the same be true of women, and of some men ? Liber­
alism has come to recognize that in proportion as any group is
weak it must, if unaided, accept unfavorable terms in the wage bar­
gain. Gradually, almost against its will at times, English liberalism
has been forced to recognize that if liberty and freedom are to be
joined with equality in labor conditions, the State must control the
hours, and finally the rate of remuneration of the laborer without
limitation as to age or sex. This was the result of the development
of an argument which was accepted even by the advocates of laissez
faire. True it is that the social responsibility of the State was grudg­
ingly admitted by Cobden and Bright and in the beginning factory
legislation in England owed much to Conservative support. But, on
the other hand, Hobhouse among early Radicals was an active sup­
porter of the restrictive legislation, and the important acts of 1833
and 1847 were passed by Whig Governments.
The new attitude is not so much a change of ground as a facing in
a new direction to protect from a new attack upon the same position.
A free bargain, the ideal of the older liberalism, does not involve, say
its later representatives, freedom to force a bargain. Where one
party is not willing in a true sense there is no free contract. Social
freedom is a broader ideal, and under mundane conditions must rest




172

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

on restraint. Only when the actions by which one man may injure
another are restrained does the whole community enjoy freedom, and
this is true even though those actions involve a contract and mask
themselves behind a right of property. It is entirely consistent, say
the modern liberals, to oppose economic protection while supporting
protective social legislation. Both actions have as their object the
securing of a greater measure of true freedom, an approach to equality
in industrial relations.
English legislation, under the guidance of those who still champion
what was true and vital in the old laissez faire philosophy, has already
arrived at the acceptance of a degree of social control, the importance
of which we in America have been slower to realize. What is got
in England by the direct means of legislation we shall achieve less
directly through a new appreciation of what our constitutions mean.




C H A P T E R

X I .— F U T U R E

O F

W A G E -P A Y M E N T

L E G IS L A T IO N .

UNSETTLED STATE OF OUR LABOR LAW.

Unsettled conditions in any branch of law are always a cause of
uneasiness. Our labor-law decisions are so discordant that until the
State courts, at least, have passed on any act we can not be meas­
urably sure of what the law really is, even though similar legislation
has been sustained in the neighboring Commonwealths. But such
uncertainty, while disquieting to us at present, need not be discour­
aging as to the probable future of this branch of legislation. Un­
settled conditions may indicate only a phase of development preced­
ing the adjustment of legal principles to new conditions. This is
doubtless the condition of our law as to free contract. The doctrine
of public control declared in the Granger cases is only a generation
old. Even that doctrine has been subjected to gradual modification.
Judicial review of the control established by the legislature has been
recognized. We no longer believe, as the court declared, that in case
of confiscatory legislation the appeal is to the electorate and not to the
courts. On the other hand the court intimated that the ground of
public control was that the business was “ affected with a public in­
terest” and that under the Constitution the people had no right to
control interests purely private. We are now less sure that this is the
case, or, at least, we have been expanding our definition of what is the
public interest and in that way including among those affected
thereby an increasing number of industrial relations.1
That we have arrived at no fixed interpretation of the limits of
public control, exasperating though that be when the attitude of the
courts of some States is considered, may be, after all, a reason for con­
gratulation rather than regret. We have still preserved the power to
adjust our legal concepts to further changes, should our industrial
development show their necessity. The courts have not so crystal­
lized the doctrine of freedom of contract— the novel concept intro­
duced in the Pennsylvania and the Illinois courts in 1886— into a fixed
principle of our fundamental law that to change it we must call upon
the ponderous machinery of constitutional amendment. It must be
admitted that arithmetical computation shows that the great majority
of decisions on the subject have been against the constitutionality of
the social legislation on trial. It must also be admitted that many of
the laws which have been passed for the protection of the laborer in his
hours of labor or in his wages, while they make an imposing array on
paper, have in large measure remained uncontested not because of the
unquestioned acceptance of their constitutionality but because, due
to their lax enforcement, they have not been restrictive enough to
1 For example the recent decision of the United States Supreme Court on the so-called Adamson law




173

174

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

induce anyone to test them before the courts. We, therefore, do not
know how many more would be declared void if tested.
But it has been shown that the developments of the past 10 years
give evidence of a changing attitude in the courts, an attitude which
is a tardy reflection of public opinion. It is even more true that pub­
lic opinion has forced upon the legislature greater care in the framing
of labor statutes, so that they may not run foul of the limitations the
courts have pointed out, and has given the administration greater
zeal in the enforcement of the laws passed. When decisions have
alleged general labor laws to be in conflict with State constitu­
tions, there have been instances where public opinion has forced
the passage of constitutional amendments which have placed such
acts under the control of the Federal Constitution alone. These
changes both within and without the courts show that there is great
progress being made not only in the conception of the courts of rights
under the Constitution, but also in public opinion, in the realization
of the advantage and necessity of social control. The grounds on
which laws on wage payments can be sustained vary with the charac­
ter of the law in question. Some examples of social legislation, no­
tably those against the use of scrip in wage payments, are compara­
tively easy to sustain under the usual interpretation of the police
power. The antiquity of such legislation, which dates from at least
the fifteenth century, justifies putting cases of this sort on a par with
usury laws— the constitutionality of which the courts do not ques­
tion— even if the concrete evidence of abuse at the present time were
not so clear as to force attention.
But the most difficult cases, and the ones in which it is often most
important to have the laws sustained, are those in which some inde­
fensible practice does not lie on the surface but in which the harm is
ascertainable only after detailed and careful study. It is in just such
cases that the courts finding information of abuse lacking or n£^well
substantiated, are apt to fall back upon laissez faire principles1and
give categorical decisions such as started the antisocial holdings in
New York,1 Pennsylvania,2 and Illinois.3
In justification of the usual attitude of the courts in such cases can
be cited the difficulties that have arisen occasionally where the social
legislation has been sustained. Weekly or biweekly payment laws, en­
acted for the alleged benefit of the laborer, by their disarrangement of
an established custom of a longer period of payment have been found
to work such hardship in some States that a rigorous enforcement
of the laws was at first impracticable,4 and it is never exactly certain
what the effect of the new law on the industries will be.5
1 In re Jacobs, 98 N . Y . 98-115, Jan. 20, 1885.
2 Godcharles v. W igem an, 113 Pa. St. 431-437, Apr. 28,1886.
3 Millett v. People, 117 111. 294-305, June 12, 1886.
4 See Report of the Factory Inspector of New York, Albany, N . Y . , 1890, pp . 102,103.
& See U . S. Industrial Commission, Report, 1901, vol. 12, L X V - L X X I I , Washington, D . C., as to Colo­
rado mining and as to Illinois; Report of the Bureau of Labor Statistics, 1890, appendix.




FUTURE OF WAGE-PAYMENT LEGISLATION.

175

DETERMINATION OF FACTS.

This brings us to one of the most important present questions in
connection with wage-payment legislation and social legislation in
general: How are the facts to be determined upon which the neces­
sity of the law shall be judged? In the past, it must be frankly
admitted, they have not, as a rule, been determined at all. The
courts have had neither agencies nor financial means to make inves­
tigations as to whether special conditions made the law a justified*
exercise of the police power.1 Counsel in the average case has been
limited in presenting the evidence justifying the law, frequently
by the attitude of the court, almost always by the resources of his
client; and in any case such evidence must be ex parte. Since in
the trial of the case neither the court nor the parties involved can
make adequate investigation of the justification of the law under
the police power, the only other recourse would seem to be to shift
that responsibility to the legislature. In fact, the rules of inter­
pretation which the courts follow, requiring the proof of an unmis­
takable violation of the Constitution before they will declare a law
invalid, seem to speak for a standard of this sort. But especially
in recent years, as has often been pointed out, the courts have shown
a tendency to question the impartiality of the legislatures’ conclu­
sions as to necessity. The courts are now far from accepting the
statement made in an Illinois case concerning the police power:
As a general proposition, it may be stated, it is the province of the lawmaking
power to determine when the exigency exists, calling into exercise this power. What
are the subjects of its exercise is clearly a judicial question * * *.2

To accept this statement would practically destroy judicial review.
Practically all that would be necessary to protect the law against
being declared void would be a title declaration that the law was
passed to promote the public health or convenience. To repose
such a degree of confidence in the State legislatures would hardly
meet the approval even of the public opinion which demands social
legislation. That the courts generally are indisposed to recognize
any such limitation of their power of review is abundantly shown
from the cases.3
EXPEDIENTS FOR OBTAINING FACTS.

There is not now any impartial agency to which the courts can
appeal to determine a doubtful issue of the fact, the decision of
which will determine the constitutionality of a law. Several meth­
ods conceivably might be followed to loosen the too rigid rule by
which many of our courts now interpret our social legislation.
1 It is but fair to say, also, that some courts have shown unwillingness to consider evidence of such con­
ditions even when presented. In some cases the evidence of experts has been rejected as tending to put
the laws “ upon a very weak and unstable foundation.” State v. Cantwell, 179 Mo. 245-280, Feb. 1,1904.
2 Lake View v. Rose H ill Cemetery Co., 70 111. 191-204, September term , 1873.
3 In the New York Bakeries Case the court expressly states that it will not be bound b y a legislative dec­
laration of necessity under the police power.
In In re Jacobs the law was declared to be one to improve
public health, but was declared void.




176

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

1. It is possible to attach to the courts special counsel,1 temporary
or permanent, who, with the court, will undertake an independent
review of the abuses which the law aims to remedy. Such an expe­
dient would certainly furnish sufficient protection to private rights.
It might still occur that the juridical training of counsel and the
court would prevent the evidence of actual inequality as opposed to
legal equality from having its proper weight.

2. A group of administrative officers in charge of the administra­
tion of social legislation might be given the duty, at the request of
the court, to make an investigation of the object and probable effects
of the law for the information of the court. Bodies of this sort, for
the ascertainment of facts in relation to labor legislation, might
come to hold a position similar to that held by the public utilities
commission of some of our States for the ascertainment of facts in
relation to the rates to be charged on public utilities.
3. The State legislatures might voluntarily give us, through their
regular committee hearings, or by investigations by committees
authorized to meet during recess, means of collecting facts, which
could be taken by the courts as an aid in judging the constitution­
ality of laws. If legislative investigations developed a more impartial
semijudicial character there is no doubt that the courts would not so
frequently be found declaring that the laws passed under the police
power could not be held by reasonable men to have any relation to
the public health. The development of some agency which could
place before the courts the results of investigations of labor and
social conditions which have “ at least some of the guaranties of
impartiality that are supposed to belong to judicial procedure” 2 would
be one of the greatest aids that could be given to progressive social
legislation. So long as the courts are under the necessity of depending
on facts of which they can not take judicial notice when they depart
from the established arguments of individualism, just so long will
their support of social legislation lack the clear-cut character which
should be its dominant characteristic. We can not afford to let our
social advance depend upon the degree to which the partisan counsel
who defends the law can convince the judge that new conditions
demand new remedies, in spite of the equally partisan arguments of
his opponent. There should be some agency which can submit an
impartial statement of facts ascertained upon hearing, upon which
the court may rely in reaching its conclusions.3 So long as condi­
tions remain as they are at present, when legislatures only too often
are willing under the pressure of class interests to shift their respon­
sibility to investigate the need for labor laws upon the courts, which
1 See U . S. Commission on Industrial Relations, Final Report, 1915, p. 361, W ashington, E>. C.,recommen­
dations on this point.
2 See a similar argument in Ernst Freund: Constitutional limitations and labor legislation, in 4 111. L .
R ev., April, 1910, vol. 4, N o. 9, pp. 609-623.
3 Note the readiness of the court in McLean v. Arkansas to accept as such evidence the conclusions of
the Industrial Commission, 211 U . S. 539-552, Jan. 4, 1909. The briefs in support of the law in the cases
of Curt Muller v. Oregon, 28 Sup. Ct. 324-327 (1908); in Stettler v. O ’Hara, 69 Oreg. 519-541, Mar. 17, 1914;
and in Bunting v. State of Oregon, U . S. Sup. Ct., October term, 1915, show the use of similar material.




FUTURE OF WAGE-PAYMENT LEGISLATION.

177

in turn have no means of determining the need, just so long will
the actual conditions be known to both parties only by conjecture.
If our constitutional rights, too, are to be made the subject of guess­
work, perhaps we are quite as safe in leaving to the courts rather than
to the legislatures the determination as to what they include.
The creation of a semijudicial agency of review will preserve for
us that flexibility in our Constitution which is nowhere more impor­
tant than in labor legislation. It will preserve us from the crystalli­
zation of the economic theories of one time into permanent rules of
law. Our views of social needs change with the economic conditions
in which we live. Our constitutional rules must be so interpreted
that they are declaratory of principles, not of detailed rules of action.
They must protect our real freedom, not our formal jural freedom.
In no branch of lawmaking is it so important as in labor legislation
that the Constitution should prove itself a guide but not a bar to our
progress.
TREND TOWARD PUBLIC CONTROL OF WAGE CONDITIONS.

The vague and shifting rules which we find in the interpretation
of legislation on wage payments may be, therefore, a blessing in dis­
guise. The very lack of unity of principle which the cases show
indicates that we are passing through a period of growth in con­
stitutional interpretation. Our old ideas have become confused; the
-new standard is not yet clear. None of the rules laid down in the
Supreme Court of the United States, at least, and but few of those
adopted by the State courts have been given such definiteness that
it will not be possible to escape from them by the familiar process
of distinction of precedents. As the evidence of changed conditions
is brought before the courts, either through our present slow and
halting process or through other methods, new ways will be found to
protect the substance of our constitutional rights.
Another generation with new problems may find our present
standards anachronistic, but to escape from them they will seldom
need to resort to amendments of the constitutions. Many of the
forms which to-day seem essential parts of our liberties may have van­
ished, to become only additional evidence for the legal historian of
the flexibility of our written constitutions.
All present indications are in favor of the view that we shall
abandon our jural technical definition of free contract, or to put it
more directly, will come to admit that real freedom does not lie in
the liberty to enter into any contract which the individual may be
willing to accept. We will place more insistence on the essence of
the right; less on the observance of its form.
But suppose the opposite development should occur. Even if the
courts should adopt a hard and fast insistence upon the right to con­
tract as a property right not susceptible of abridgment under the
fourteenth amendment, the result would be a degree of public control
105598°— 18— Bull. 229-------12




178

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

over the conditions of labor not the less real because more indirect.
What would happen is indicated by what has already happened in
many cases where the constitutionality of the laws passed for the
protection of the laborer has been denied. When the class struggle
ends in the courts, it begins again between the contestants outside of
court, surrounded with fewer of the safeguards which make a legal
battle one which more than others must be fought within the rules
of the game.
If the law can not give the protection sought, the laborers are
thrown back on free association as a means of securing what the law
denies. In the case of wage-payment laws, such as those affecting
screening and weighing, the laborers have often followed their defeat
in the courts by securing the same ends through their trade-unions.
Strikes and disorder with their attendant interruption and harm not
only to the businesses directly involved but to the community at
large have only too often been among the after effects of adverse
court decisions. This of course only raises the question whether the
law itself as well as the demand made subsequent to its annullment
was or was not justifiable. The answer would depend on the par­
ticular case. What is shown, however, is that to the extent to which
the courts or legislatures refuse or neglect to give just protection to
the laborer in his conditions of work, to that extent will the unions
be justified in their attempt to force on the employers extra legally
the acceptance of conditions which will guarantee protection similar
to that unprovided by the law.
If the courts are unable to grant just protection, and insist on the
absolute jural liberty of individuals to accept unfavorable conditions
of labor, then the labor unions will have an added appeal by which
they can strengthen their organization. In fact, if the burden of
raising the conditions of labor be thrown upon the unions alone, it is
patent that these organizations will become so much a factor in our
public life that they can no longer be left in the extra legal position
they now hold. Their management will become a matter “ affected
with a public interest,” and we shall have introduced from another
direction a degree of public control over the labor contract quite as
great as that we may see by direct regulation through the legislature
and the courts. It should be borne in mind, too, that this is a devel­
opment that may occur within States to rectify the adverse deci­
sions of State courts which may have brought the adoption, locally, o
a standard less broad than that set by the National Constitution.
If the courts, as now seems highly improbable, avoid the dirr , ;
regulation of the labor contract, they will find themselves called uj ^
to deal with the same problem through the control of labor organiz
tion, in which case adequate remedies may be more difficult becaus
less direct. Whatever solution be adopted, there seems to be no doubt
that the old “ freedom of contract” is a concept which in its extreme
form will prove but a passing phase in our constitutional interpre­
tation.




A P P E N D I X .— L I S T

O F

C A S E S

C IT E D .

Citation.

Title.

Abrams v. State........................................................................
Ackley v. Black'Haw k Gravel Mining Co.................... .
Adair v. United States......................................................... .
Agee v. Smith.............................................................................
Archer v. James........................................................................
Arkansas Stave Co. v. State.................................................
Ashby, In re............................................................................. .
A tkin v. Kansas........................................................................
Atkins v. Grey Eagle Coal Co............................................ .
Attoyac River Lumber Co. v. P a y n e..............................
Avent-Beattyville Coal Co. v. Commonwealth.......... .
Bailey v. State......................................................................... .
Bailey v. State......................................................................... .
Bailey v. State of Alabam a..................................................
Bailey v. State of A labam a.................................................
Baltimore & Ohio S. W . R . R . Co. v. Burdalow -----Baltimore & Ohio S. W . R . R . Co. v. H arm on.......... .
Baltimore & Ohio S. W . R . R . Co. v. H ollenback....
Baltimore & Ohio S. W . R . R . Co. v. M anning.........
Banks v. State.........................................................................
Bauer v. Reynolds.................................................................
Bauer v. Samson Lodge.......................................................
Beard v. Board of Com. Sedgwick Co.............................
Beeman v. State......................................................................
Bell v. Town of Sullivan.....................................................
Biggs v. St. L u I. M . & S. R y . Co...................................
Billmgsley v. Board of Com ...............................................
Bogni v. Perotti.......................................................................
Bohnen v. M etz.......................................................................
Bopp v. Clark...........................................................................
Braceville Coal Co. v. People.............................................

1906
1896
1908
1893
1859
1910
1898
1903
1915
1909
1894
1908
1909
1908
1911
1914
1903
1903
1896
1905
1894
1885
1901
1916
1902
1909
1897
1916
1908
1914

126 Ga. 591......................
112 Cal. 42........................
208 U . S. 161...................
7 W ash. 471.....................
2 Best & S. 59................
94 Ark. 27........................
60 Kans: 101....................
191 U . S. 207...................
76 W . Va. 27...................
57 Tex. Civ. App. 327.
96 K y . 218........................
158 Ala. 18.......................
161 Ala. 75.......................
211 U . S. 452...................
219 U . S. 219...................
57 Ind. App. 267...........
161 Ind. 358.....................
161 Ind. 452.....................
16 Ind. A pp. 408...........
124 Ga. 15.........................
14 Pa. Co. Ct. 497..........
102 Ind. 262.....................
63 Kans. 348....................
17 Ga. App. 752.............
158 Ind. 199.....................
91 Ark. 122......................
5 Kans. A pp. 435..........
224 Mass. 152..................
193 N . Y . 676..................
165 Iowa, 697..................
147 111. 66..........................

Bragdonv. Poland.................................................................
Bramley v. Norton.................................................................
Bridges v. State.......................................................................
Broad, In re..............................................................................
Brown v. State.........................................................................
Bunting v. State of Oregon.................................................
Burden v. Woodside Cotton M ills...................................
Burnetta v. Marceline Coal Co...........................................
B um s v. F ox.............................................................................
Butchers’ Union v. Crescent, etc., Co.............................
Butler v. Chambers................................................................
Byrnes v. City of New Y o rk ...............................................
Calder v. B u ll...........................................................................
Caldwell v. R . R . C o.............................................................
Calhoun v. State____'.............................................................
Champion v. Hermitage Cotton M ills.............................
Chicago & Erie R . R . Co. v. Ebersole............................
Chicago, M . & St. P . R y. Co. v. State of Minnesota.
Chicago, R . I. & P. R y . Co. v. Langley.......................
Chicago & S. E . R y. Co. v. Glover...................................
Chism v. Schipper...................................................................
Churchman v. M artin...........................................................
City of Cleveland v. Clements Bros. Construction Co
Clark v. State of New Y o rk ................................................
C. C. C., etc., R y . Co. v. Schuler......................................
Coffeyville, etc., Co. v. Perry.............................................
Coleman v. State.....................................................................
Commonwealth v. Bethlehem Steel C o.........................
Commonwealth v. B row n...................................................
Commonwealth v. D u n n .....................................................
Commonwealth v. Hillside Coal C o.................................
Commonwealth v. Isenberg & Row land....................... .
Commonwealth v. Lancaster M ills..................................
Commonwealth v. Marsh.....................................................
Commonwealth v. Perry.....................................................

1862
1897
1906
1904
1910
1917
1916
1904
1904
1884
1886
1912
1798
1904
1904
1914
1910
1890
1906
1901
1888
1876
1902
1894
1914
1904
1909
1901
1900
1895
1912
1894
1891
1891
1904
1901
1892
1897

127
89
22,29,151
110
94,160
86
57
58,156
106
115
111
123
124
123
124
121
89

51 Me. 323.........................
5 O h io N . P . 183...........
126 Ga. 91.........................
36 W ash. 449...................
8 Ga. App. 211...............
37 Sup. Ct. 435...............
104 S. C. 435....................
180 Mo. 241.......................
90 N . Y . Supp. 2 5 4 . . ..
I l l U . S. 746...................
36 Minn. 69......................
150 N . Y . App. 3 3 8 ....
3 Dallas, 386....................
14 O. D . (N . P .) 3 7 5 ...
119 Ga. 312......................
98 S. C. 418.......................
173 Ind. 332.....................
134 U . S. 418...................
78 Ark. 207......................
159 Ind. 166.....................
51 N . J. L . 11..................
54 Ind. 380.......................
67 Ohio St. 197.................
142 N . Y . 101...................
182 Ind. 57.......................
69 Kans. 297....................
6 Ga. A pp. 398...............
25 Pa. C. C. 225..............
8 Pa. Super. Ct. 3 3 9 ...
170 Mass. 140..................
109 K y . 47........................
4 P a. D ist. Ct. R . 579.
212 Mass. 315...................
14 Pa. Co. Ct. 369.........
155 Mass. 117...................

Commonwealth v. Potomska Mills Corp.......................
Commonwealth v. Reinicke Coal Mining C o...............
Commonwealth v. Rochester & P itts. C. & I. C o .. .
Copeland v. State....................................................................
Cote v. Bates Mfg. C o............................................................

Cited in
this bulle­
tin, p .—

155 Mass. 1 2 2 ....
117 K y . 885.........
26 Pa. C. C. 481.
97 Ala. 30.............
91 Me. 59..............




126
79
168
57
126
54
86,120
57
23
02
56
29,73,
149,150,
158,161
133
55,60
126
156
126
41,177
121
81
59
147.164
19
62
164.165
130
126
121
74
16
120
89
17
108
55
53,54,63
121
151
127
130
138
74
85,112
80,162
128
79
128,149,
165
128
85
130
123
119

179

180

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.
List o f cases cited—Continued.

Title.

Year.

Crane, In re............................................................................................. 1914
Crall v. R . R . C o .................................................................................... 1893
Crawford v. W ic k .................................................................................. 1868
Crowley v. Christensen....................................................................... 1890
Cullison v. R . R . Co............................................................................. 1897
Cumberland Glass Mfg. Co. v. State............................................. 1895
Curtis v. O ’ Brien................................................................................... 1866
Dalton, In re ........................................................................................... 1899
Daniels v. People.................................................................................. 1884
.
Davidson v. New O rleans.. , ¥-*T. . . . . . ......
1877
D ayton Coal & Iron Co. v. Barton................................................. 1899
Dayton Coal & Iron Co. v. Barton................................................. 1901
Dayton Coal & Iron Co. ^.Barton................................................ 1901
Develin v. W o o d .................................................................................... 1850
Diamond State Iron Co. v. B ell............................
. . . . 1897
Dixon v. Poe.................................................................
........... 1902
................. 1895
Dorsey v. State............................................................
................. 1897
Douglas v. K entucky................................................
Downey v. Bender .1 ........................................................................... 1901
Drayton, E x parte............................................................................... 1907
Dngan v. Thorna,s.............................................................................
1887
1895
D yas v. State.......................................................................................... 1906
Eight-Hour Law. In re ...................................................................... 1895
Ellis n. TTnit.pd States........... . . . - r. .................................................. 1907
Ellis v. United States.....................................................................
1907
Equitable Life Assurance Society v. Clements......................... 1891
Erie R . R . Co. v. W illia m s ............................................................. 1909
Erie R . R . Co. v. W illia m s. r. , r _, T „ r TTTr.......... .. T____
1910
Erip. R . R Cr». v. W illiam s
................ .........................
1914
Evans v. Kingston Cna.1 Oo_____
1890
1913
Ewen v. Thompson-Starrett C o......................................................
1906
Farrell v. Board of Education.............................
Farrow v. R . R . C o..............................................
1895
1916
Ferih v. Latour Creek R . Co.................................
. .
1907
Ferry v. K insley................................................................................
Fletcher v. Peck..................................................................................... 1810
Fordyce et al. v. Gorey....................................................................... 1901
Frable v. Snyder.................................................................................... 1884
Frame v. Felix...........................................................
1895
Franklin v. T . H . Lilley Lumber C o............................................ 1909
Frisbie v. United States..................................................................... 1895
Frorer et al. v. People......................................................................... 1892

Gallagher v. Hathaway Mfg. C o.......................................
Gartside v. People....................................................................
Gerlach v. City of Spokane.........................................................
Gillespie v. People....................................................
Gilligan v. Town of W aterford....................................................
Giozza v. Tiernan.............................................................
Glenn v. State....................................................................................
Godcharles & Co. v. W igem an.........................................................

1898
1884
1912
1900
1895
1893
1905
1886

Granby Mercantile Co. v. Webster
H all v. Chicago, R . I. & P. R y . Co.....................
...
Hamilton v. Jutte, etc., C o................................................................
Hancock et al. v. Y a d en .....................................................................
Harbison v. K noxville Iron C o.......................................................
Harding et al. v. The People........................................................
Harwell v. State.....................................................................................
Herdic v. Roessler .........................................................................
Hollm an. E x parte...............................................................................
House B ill N o. 107, In r e ..................................................................
House B ill N o. 147, In r e ..................................................................
House B ill N o. 203, In re .................................................................
House B ill N o. 1230, In re .................................................................

1899
1910
1895
1890
1899
1896
1907
1888
1908
1895
1897
1895
1895

Howard v. S t a t e ...................................................................................
Hudnall v. W atts Steel & Iron S y n d .......................................
Hudson v. State .................................................................................
Hurtado v. C aliforn ia....................................................................
Illinois Central R . R . Co. v. Gheen...........................................
Insurance Co. v. Morse.......................................................................
International Text Book Co. v. W e is s in g e r ............................
Isaacs v. M cA n d re w ...........................................................................
Jackson v. State......................................................................................

1906
1899
1914
1884
1902
1874
1902
1872
1894




Citation.

Cited in
this bulle­
tin, p.—

26 Cal. A p p. 22...........................
91,121
3 O. C. D . 696.............................
130
18 Ohio St. 190...........................
99
137 U . S. 86..................................
168
7 O. D . (N . P .) 269...................
130
58 N . J. L . 224............................
113
20 Iowa, 376................................
168
61 K ans. 257................................
57
15 111. A p p. 241...........................
133
96 U . S. 97...................................
15
103 Ten n. 604..............................
107/160
183 U . S. 23..................................
161
22 Sup. Ct. 4 ...............................
108
2 Ind. 102.....................................
168
2 Marv. (D el.) 303.....................
119
159 Ind. 492.................................
102,161
I l l A la. 40....................................
123
168 U . S. 488...............................
168
57 N . Y . A p p . 310.....................
62
153 Fed. 986.................................
125
79 Me. 221.....................................
168
95 Tenn. 245................................
l'^8
126 Ga. 556...................................
126
21 Colo. 29....................................
89
206 U . S. 2 4 6 . . ...........................
59
27 Sup. Ct. 600...........................
59
140 U . S. 226...............................
18
136 N . Y . A p p . D iv. 902___
84
199 N . Y . 525...............................
84
34 Sup. Ct. Rep. 7 6 1 ..............
84
6 K ulp, 351 (P a .) ......................
97
208 N . Y . 245...............................
63
98 N . Y . Supp. 1046.................
59
7 O. N . P . 606.............................
130
29 Idaho, 521...............................
122
195 Mass. 548...............................
74
6 Cranch, 87.................................
164
69 Ark. 344...................................
120
3 Northampton Co. R . 1 9 1 ..
79
167 Pa. St. 47..............................
55
66 W . V a. 164.............................
121
157 U . S. 160................................
34
141111.171.................................... 22, 28, 73,
76, 100,
137, 149,
161
172 Mass. 230...............................
74,128
15 111. A p p. 241...........................
133
68 W ash. 589...............................
56
188111.176....................................
151
36 N . Y . Supp. 88.....................
53
148 U . S. 657................................
168
123 Ga. 585...................................
126
113 Pa. St. 431............................ 22, 29, 82,
99, 104,
148,161,
174
98 Fed. 604...................................
114
96 Ark. 634...................................
120
16 Pa. Co. Ct. 193......................
79,97
121 Ind. 366.................................
77,155
103 Tenn. 421...............................
107,160
160*E11. 459.....................................
134,151
2 Ga. A pp. 613...........................
126
109 N . Y . 127..............................
168
79 S. C. 9.......................................
125
21 Colo. 32.....................................
89
23 Colo. 504...................................
100
21 Colo. 27.....................................
135,150
163 Mass. 589............................... 73, 74, 77,
162,167
126 Ga. 538...................................
126
20 K y . L . Rep. 1211.................
112
14 Ga. A pp. 490.........................
126
110 U . S. 516................................
8,14,166
130
112 K y . 695...................................
20 W all. 445.................................
168
160 Ind. 349.................................
74
1 Mont. 437...................................
133
106 Ala. 136..................................
123

APPENDIX.

181

List o f cases cited—Continued.

Citation.

Title.

JN . Y .S

Jacobs, In re.

1885

Jahn Contracting Co. v. City of Spokane..
Johnson v. Goodyear Mining C o..................

1913

74 W ash. 298.
127 Cal. 4.........

Johnson L ytle & Co. v. Spartan Mills..........................
Johnson v. State...................... „............................................
Johnson v. State.....................................................................
Jones v. State.........................................................................
Jones v. People.......................................................................
Jordan v. State.......................................................................
Kansas v. Atkin.....................................................................
Kansas City, etcy R y . Co. v. Moon...............................
Keener v. Eagle Lake Land & Irrigation C o.............
K ellyville Coal Co. v. Harrier..........................................
K entucky Coal Mining Co. v. M attingly.....................
Keokee Consolidated Coal Co. v. Taylor.....................
K id d v. Pearson.................... ................................................
Knecht v. People...................................................................
Kneettle v. N ew com b.........................................................
Knowles v. New York.........................................................
Knoxville Iron Co. v. Harbison.......................................
K noxville Iron Co. v. Harbison.....................................
Kuback, E x parte................................................................
Lake View v. Rose H ill Cemetery Co...........................
Lamar v. Prosser...................................................................
Lamar v. State.......................................................................
Largent v. Arkansas, N . W . R . Co...............................
Larkin v. Village of Brockport........................................
Latson v. W e lls.....................................................................
Lawrence v. Rutland R . R . Co.......................................
Leach et al. v. Missouri Tie & Timber Co...................
Leep v. St. Louis Iron Mountain & S. R y . Co.........

1904
1906
1913
1915
1884
1907
1902
1899
1895
1904
1909
1914
1888
1884
1860
1902
1901
1901
1890
1873
1904
1904
1916
1895
1911
1907
1905
1894

68 S. C. 339.....................
125 Ga. 243.....................
13 Ga. A p p. 586...........
15 Ga. A p p . 642...........
110 111. 590......................
51 T ex. Cr. A p p . 531..
64 Kans. 174...................
66 Ark. 409.....................
110 Cal. 627.....................
207 111. 624......................
133 K y . 526....................
34 Sup. Ct. 856.............
128 U : S. 1 .....................
15 111. A p p. 241.............
22 N . Y . 249...................
75 N . Y . Supp. 1 8 9 ...
183 U .S . 13...................
22 Sup. Ct. 1 .................
85 CaL 274......................
70 111. 191........................
121 Ga. 153....................
120 Ga. 312....................
188 S. W . 836.................
34 N . Y . Supp. 5 5 1 ...
136 Ga. 681....................
80 V t. 370.......................
111 Mo. A p p. 650........
58 Ark. 407....................

Lentz v. Post..........................................................................
Lewis v. D unne.....................................................................
Lewis v. State.........................................................................
Lloyd’ s Appeal......................................................................
Loan A ss’n v. Topeka.......................................................
L o a n A ss’n v. Topeka.......................................................
Lochner v. N ew Y o r k .........................................................
Louisiana & N . W . R y . Co. v. Phelps.........................
Low v. Rees Printing C o...................................................
Luman v. Hitchens Bros. C o...........................................
Macbeth-Evans Glass Co. v. Am ana.............................
Macbeth-Evans Glass Co. v. Jones.................................
Macbeth-Evans Glass Co. v. V a n Blarican................
Malette v. City of Spokane...............................................
Malette v. City of Spokane...............................................
Maloney v. N ew to n .............................................................
M cA voy v. New Y o rk ........................................................
McCann v. New Y o r k .........................................................
McCarty v. O 'B ryan ...........................................................
McCoy v. State.......................................................................
McCunney v. New Y o r k ....................................................
McGuigan v. Brown Automatic Hose Coupling C o ..
McLean v. State....................................................................

1886
1901
1914
1880
1874
1874
1905
1901
1894
1899
1911
1911
.1911
1912
1913
1882
1900
1901
1897
1905
1899
1915
1906

2 Pa. C. C. 481....................
134 Cal. 291..........................
15 Ga. A p p. 405.................
95 Pa. 518.............................
87 U . S. 655.........................
20 WaU. 662.........................
198 U . S. 4 5 .........................
70 Ark. 17............................
41 Nebr. 127.........................
90 Md. 14..............................
176 Ind. 1 .............................
176 Ind. 221.........................
176 Ind. 69...........................
68 W ash. 578......................
77 W ash. 205......................
85 Ind. 565...........................
52 N . Y . A p p . D iv . 485..
166 N . Y . 587......................
137 Mo. 584..........................
124 G a. 218.........................
58 N . Y . Supp. 138..........
17 O. N . P . (N . S.) 188..
81 Ark. 304..........................

McLean v. Arkansas.

1909

211 U . S. 539.

McLean v. Arkansas...........................................
McMahon v. New Y o r k .....................................
McManaman v. Hanover Coal Co..................
Marriner v. Roper Co..........................................
Marsh v. Poston & C o.........................................
Martin-Alexander Lum ber Co. v. Johnson.
Martin v. State......................................................
Mason v. Terrell....................................................
Mathews v. People...............................................
Meyers v. Penn. Steel C o..................................
Millett v. People...................................................

1909
1897
1890
1893
1896
1902
1896
1908
1903
1902
1886

29 Sup. Ct. 207..............
47 N . Y . Supp. 1018...
6 K u lp , 181.................... .
112 N . G. 164.................
35 Ohio W . L . B .3 2 7 .
70 Ark. 215.....................
143 Ind. 545.................V
3 Ga. A p p. 348.............
202111.389......................
77 N . Y . A p p. 307____
117111.294......................

Millinderv. State..................................................
Missouri, etc., R y . Co. of Texas v. B radd y.
Missouri, etc., R y . Co. v. M ackey...................
Mitchell a. Burwell..............................................
Mobley v. State.....................................................
Moody et al. v. Jones...... ....................................
Morgan, In re .........................................................

1905
1911
1888
1899
1913
1896
1899

124 Ga. 452................ .
135 S. W . 1059............
127 U .S . 205............. .
110 Iowa, 10.............. .
13 Ga. App. 728........
37 S. W . (T ex .) 379.
26 Colo. 415................ .




Cited in
this bulle­
tin, p .—
22,60,
147, 174,
175
56
82, 91,
151, *58,
162
114
126
126
127
133,154
115.161
57
120
89
129.161
112
113
168
133
168
61
161
108,115
149
175
126
126
120
53
127
75,76,162
110.161
119.150,
158,165
79
51,131
127
79
12
164
151,152
120
151
- 22,102,161
78
78
78
56
56
108
59
59
81,108
126
59
81
139.150,
158
140,142,
177
159
59
97
110
99,161
115
137
126
351
59
134,148,
149,174
127
119
168
85,115
126
121
151

182

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

List of cases cited—Continued.
Title.

Citation.

Morgan v. St. L . I. M . & S. R y . C o ...............................................
Moseley v. State....................................................................................
Moxley v. Ragan...................................................................................
Mugler v. State of Kansas.................................................................
Mulkey v. State.....................................................................................
Muller v. State of Oregon...................................................................
Muller v. Oregon...................................................................................
Munn v. State of Illinois....................................................................
Naglebaugh v. Harder & Hofer Coal Mining C o.........................
New v. W alker..................................................................................... .
N ew York v. Lochner....................................................................... .
New York Central & Hudson R . R . R . Co. v. W illiam s........ .
New YorkCentral & Hudson R . R . R . Co. v. W illiam s........ .
Nunnemacher, Trustee, v. State................................................... .
Oglesby v. State...................................................................................
Olson v. Idora H ill Mining C o....................................................... .
Orient Ins. Co. v. Daggs................................................................... .
Osborn v. Hoffman.............................................................................
Paschal v. State...................................................................................
Patterson v. Bark Eudora...............................................................
Patterson v. State...............................................................................
Pearson v. Mills Mfg. Co...................................................................
Pennington v. Thompson Bros. Lumber Co............................
P. C. C. & St. L . R y . Co. v. C ox....................................................
Pennsylvania v. Powell....................................................................
People v. City of Buffalo..................................................................
People v. Grout....................................................................................
Peoples. Marcus............................................................... : ................
People v. M etz......................................................................................
People v. Orange Co. Road Construction Co...........................
People ex rel. Hansauer-Jones Printing Co. v. Zimmerman
People ex rel. North v. Featherstonhaugh..............................
People ex rel. Rodgers v. Coler.....................................................

1912
1907
1873
1887
1907
1908
1908
1876
1898
1886
1904
1909
1910
1906
1905
1916
1869
1876
1915
1903
1907
1909
1909
1896
1886
1890
1904
1906
1908
1903
1908
1902
1901

People ex rel. Treat v. Coler..................................
People ex rel. Usoy v. W a rin g .............................
People ex rel. Van Valkenburgh v. Myers____
People ex rel. Warren v. B e c k .............................
People ex rel. William s, etc., Co. v. M e tz .........
People of N ew York v. Arensburg.......................
Pere Marquette R . R . Co. v. Baertz...................
Phoenix Ins. Co. v. L e v y ........................................
Pierce v. Van Dusen..................................................
Pierce v. W hittlesey..................................................
Pollock v. Farmers’ Loan & Trust C o...............
Pond Creek Coal Co. v. Riley, Lester & B ros.
Powell v. Pennsylvania...........................................
Presley v. State...........................................................
Preston, In re...............................................................
Queen Ins. Co. v. Leslie...........................................
Quinby v. Slipper.......................................................
Rail & River Coal Co. v. Ya ple.............................
Rail & River Coal Co. v. Y a p le .............................
Ramsey v. People.......................................................

1901
1900
1890
1894
1908
1887
1905
1895
1897
1889
1895
1916
1888
1905
1900
1890
1893
1914
1915

i v. Tremont Lumber C o.........
Refley et al. v. Franklin Ins. Co___
Reinecke v. People................................
Republic Iron & Steel Co. v. State.

1913
1877
1884
1903

Riggs v. Eagle Lake Land & Irrigation Co.
R iley, E x parte......................................................
Ritchie v. People.................................................. .

1891
1895

Ritchie v. W a y m a n ...................................................
Robinson v. Texas Pine Land A ss’n ..................
Row v. Haddock.........................................................
R yan v. City of New Y o r k .....................................
Sally v. Berwind-White Coal, etc., Co...............
San Antonio & Ark. Pass. R y . Co. v. W ilson.

1910
1897
1885
1904
1896
1892

Sanders v. State...........................................................
Schlosser v. Bethlehem Iron C o............................
Seeleyville Coal & Min. Co. v. McGlosson.........
Senate Bill No. 27, In re..........................................
Shaffer & Munn v. Union Mining C o.................

1909
1883
1906
1901
1880

Shaver v. Pennsylvania Co.....................................
Sheffield v. State.........................................................

1913




Cited in
this bulle­
tin, p.

106 Ark. 74...................................
120
2 Ga. A p p. 189................... : . . .
127
73 K y . 156....................................
168
123 U . S. 623...............................
18
1 Ga. A p p. 521...........................
126
208 U . S. 412...............................
39
28 Sup. Ct. 324........................... 39,169,177
94 U .S . 113.................................
15
21 Ind. A p p. 551.......................
106
108 Ind. 365.................................
168
177 N . Y . 145..............................
32
118 N . Y . Supp. 785.................
83
199 N . Y . 108..............................
83
129 W is. 190.................................
28,165
123 Ga. 506...................................
126
28 Idaho, 504...............................
122
172 U . S. 557................................
168
52 Ind. 439...................................
168
16 Ga. A p p. 370.........................
126
190 U . S. 169...............................
168
1 Ga. A p p. 782...........................
126
82 S. C. 506...................................
114
122 S .W . (Tex.C iv. App.)923.
132
55 O. S. 497 ...............................
130
114 Pa. St. 265............................
19
57 H un., 577 ...............................
71
179 N . Y . 417..............................
59
185 N . Y . 257..............................
151
193 N . Y . 148...............................
62
175 N . Y . 84.................................
62,63
109 N . Y . Supp. 396.................
59
172 N . Y . 112...............................
59
166 N . Y . 1................................... 28,59,60,
151,157
166 N . Y . 144...............................
61
64 N . Y . Supp. 865...................
59
33 N . Y . 18...................................
71
144 N . Y . 225...............................
29
193 N . Y . 148...............................
157
105 N . Y . A p p. 123...................
19
36 Ind. A p p. 408........................
106
12 Tex. Civ. A p p. 45...............
168
78 Fed. 693...................................
130
58 Conn. 104................................
118
157 U . S. 429...............................
28
171 K y . 8 1 1 .................................
112
127 U . S. 678...............................
19
124 Ga. 446..................................
127
63 Ohio St. 428...........................
142
47 Ohio St. 409...........................
18
7 W ash. 475.................................
110
214 Fed. 273.................................
142
35 Sup. Ct. 359 .........................
142
142 111. 380...................................
1 3 7 ,1 ^
134 La. 199...................................
43 W is. 449...................................
15 111. A pp. 241...........................
160 Ind. 379.................................

114
18
133
74,78,
82,132,
161,166
110 Cal. 627..................................
90
94 Ala. 82.....................................
123
155 HI. 98......................................
29,151,
169
169
244 111. 509...................................
113
40 S. W . 843.................................
104
3 K ulp, 501 (P a .)......................
177 N . Y . 271............................... 62,63,157
79,98
5 Pa. Dist. R . 316.....................
4 Tex. Civ. A p p . (Wilson)
118,102
565...............................................
126
7 Ga. A p p. 46.............................
97
1 Leh. V . Rep. 6 .......................
78
166 Ind. 561.................................
86
28 Colo. 359..................................
104,153,
55 Md. 74.......................................
154,158
130,151
71 Fed. 931...................................
13 Ga. A p p. 78...........................
126

183

APPENDIX.
List o f cases cited—Continued.

Citation.

Title.

Shortall v. Puget Sound Bridge, etc., C o..................
Showalter v. E h lan............................................................
Shull v. Mo. P. R y . C o.....................................................
Simpson v. O ’ H ara............................................................
Skillet v. People..................................................................
Skinner v. Garnett Gold Mining Co............................
Slaughterhouse C ases.......................................................
Slocum v. Bear Valley Irrigation Co...........................
Smith v. Ohio Oil Co.........................................................
Smith v. State......................................................................
Smucker v. Duncan et a l.................................................
Solomon v. State.................................................................
Sorenson v. W e b b ...............................................................
St. Louis, Iron Mt. & So. R y . Co. v. B ailey............
St. Louis, Iron Mt. & So. R y . Co. v. Broomfield .
St. Louis, Iron Mt. & So. R y . Co. v. Brow n...........
St. Louis, Iron Mt. & So. R y . Co. v. Bryant et al.
St. Louis, Iron Mt. & So. R y . Co. v. H ill.................
St. Louis, Iron Mt. & So. R y . Co. v. L eep...............
St. Louis, Iron Mt. & So. R y . Co. v. McClerkin.. .
St. Louis, Iron Mt. & So. R y . Co. v. P aul...............
St. Louis, Iron Mt. & So. R y . Co. v. P a u l.. .•.........
St. Louis, Iron Mt. & So. R y. Co. v. Paul...............
St. Louis, Iron M t. & So. R y . Co. v. Pickett........
St. Louis, Iron M t. & So. R y . Co. v. W a l s h ___
Starling v. State..................................................................
State v. Addington.............................................................
State v. Addington.............................................................
State v. A tk in ......................................................................
State v. Atkins et a l..........................................................
State v. Balch.......................................................................
State v. B enn.......................................................................
State v. Brown & Sharpe Mfg. Co...............................

1907
1897
1909
1914
1884
1899
1872
1898
1909
1891
1891
1913
1916
1908
1907
1905
1909
1909
1894
1908
1897
1899
1899
1902
1908
1908
1882
1882
1902
1900
1903
1902
1892

45 W ash. 290...............
5 Pa. Super. Ct. 242.
221 Mo. 140...................
70 Oreg. 261.................
15 111. App. 241...........
96 Fed. 735..................
16 W all. 3 6 .................
122 Cal. 555.................
43 Ind. A p p. 735____
90 Tenn. 575...............
10 Pa. C. C. 430.........
14 Ga. A p p . 115.........
71 So. 273.....................
87 Ark. 132...................
83 Ark. 288...................
75 Ark. 137...................
92 Ark. 425...................
92 Ark. 484...................
15 Sup. Ct. 1042.........
88 Ark. 277..................
64 Ark. 83.....................
173 U . S. 404...............
19 Sup. Ct. 419..........
70 Ark. 226...................
86 Ark. 147................
5 Ga. A pp. 171...........
12 Mo. A pp. 221.........
77 Mo. 110.....................
64 Kans. 174................
104 La. 37 .....................
178 Mo. 392...................
95 Mo. App. 516.........
18 R . I. 16....................

State v. B unting..................................................................................
State v. Cantwell..................................................................................
State v. Chapman................................................................................
State v. Chehalis Furniture & Mfg. Co...................................... .
State v. C ullom ................................................................................... .
State ex re. Chicago & P . S. R y . Co. v. Superior Court of
K ing Co.
State v. Easterlin............................................................................... .
State v. Ferguson et a l ..................................................................... .
State v. Fire Creek Coal & Coke Co..............................................

1914
1904
1900
1907
1915
1913

71 Oreg. 259..
179 Mo. 2 4 5 ...
56 S. C. 4 2 0 ...
47 W ash. 378.
138 La. 3 9 5 ...
73 W ash. 3 3 ..

1901
1900
1889

61 S. C. 71.........
104 La. 249___
33 W . V a. 188.

State v. G off.........................................................................................
State v. Goodwill.......................................................................... « ...

1901
1889

106 La. 270___
33 W . V a . 179.

State of Kansas v. Haun.
State of Kansas v. Haun.

1898

7 Kans. App. 509..
61 Kans. 146.........

State v. H ow ard....................................
State v. Jenkins....................................
State v. Julow........................................
State ex re. Zillmer v. Kreutzberg.
State v. Lake Erie Iron C o ...............
State ex re. Lewis v. Pierson...........
State v. L oom is.....................................
State v. Loom is.....................................

1883
1891
1895
1902
1894
1892
1892
1893

88 N . C. 650...........
90 Tenn. 580.........
129 Mo. 163............
114 W is. 530..........
33 Ohio W . L . B .
44 La. 90................
20 S. W . 332...........
115 Mo. 307............

State
State
State
State
State

v.
v.
v.
v.
v.

Martindale................................
McCarroll...................................
Minor..........................................
Missouri Pacific R y. C o___
Missouri Tie & Timber C o.

1891
1915
1912
1904

47 Kans. 147..
138 La. 4 5 4 . . ..
33 W . V a. 179.
242 Mo. 3 3 9 ....
181 Mo. 5 3 6 ....

State
State
State
State
State

v.
v.
v.
v.
v.

M uller...............................................................................
Murray............................... ; ......................................] "
Nashville, Chattanooga & St. Louis R . R . Co.
N orm an...........................................................................
Paint Rock Coal Co...................................

1906
1906
1911
1892
1892

48 Oreg. 252..
116 La. 6 5 5 ...
124 Tenn. 1 . ..
H O N . C. 484.
92 Tenn. 8 1 ..,

State v. Pasco.........................................................................................
State v. Peel Splint Coal C o.......................................1892
State v. Potomac Valley Coal Co.
State v. Prudential Coal Co............
State v. R edm on.................................




153 Ind. 2 1 4 ...
36 W . V a. 802.
1911
1914
1907

116 M d. 3 8 0 ...
130 Tenn. 275.
134 W is. 8 9 ....

Cited in
this bulle­
tin, p.—
Ill
98
91
39
133
99
146
90,162
89
135
97
127
92
120
120
120
120
120
119
120
120,158
158
120,122
120
120
127
12
19
156
114
109
109
72,15S,
162
41
175
125
110
88
111
125
114
22,29,99,
149.161
124
22,29,
105.149,
161
101
29,101,
158.161
127
135
151
151
80,161
124
108
108.150,
161,165,
169
57
88
105,149
81,82
26,110,
151,158,
161,165
169
124
103.161
127
88,107,
161
138
105,136,
158.161
85
88,108
166

184

WAGE-PAYMENT LEGISLATION IN THE UNITED STATES.

List of cases cited—Concluded.
Title.

Year.

State v. Robinson...............................................................: ................
State v. Sanders.....................................................................................
State v. T h om as....................................................................................
State v. Torrence...................................................................................
State v. V a n n .........................................................................................
State v. W hidbee................................................................................ :
State v. W illiam s..................................................................................
State v. W illiam s..................................................................................
State v. W ilson......................................................................................
State v. W ilson......................................................................................
State v. W ilson......................................................................................
State Industrial Commission v. Interborough Rapid Tran­
sit Co.
Sterling v. State.....................................................................................
Stettler v. O ’Hara............................................................................... .
Stewart & A lex. Lumber Co. v. W eaver...................................
Stewart et al. v. Stearns & Culver Lum ber Co......................
Stimson Mill Co. v. Braun...............................................................
Stone v. Mississippi............................................................................
Street v. Varney Electrical Supply Co........................................

1907
1898
1906
1900
1907
1899
1909
1890

Taylor v. Saurman...............................................................
Taylor v. State.......................................................................
Tennyson v. State.................................................................
Terre Haute & Ind. R . R . Co. v. Baker.......................
Terre Haute & Ind. R . R . Co. v. Baker......................
Thom as v. State....................................................................
Thompson r. Phelan...........................................................
Thorn v. State.......................................................................
Thorpe v. W h ite ...................................................................
Toch v. People.......................................................................
Toledo, St. L . & W est. R . R . Co. v. Lo ng................
Toledo, St. L . & W est. R . R . Co. v. L ong................
Toney v. State.......................................................................
Townsend v, Broach...........................................................
Tram m ell v. Victor Mfg. C o.............................................
TJnion Sawmill Co. v. Felsenthal...................................
U nion Sawmill Co. v. Felsenthal...................................
United States v. Fisher.....................................................
United States v. M artin.....................................................
United States v. R eynolds...............................................
Vance v. State.......................................................................
Veitkunas v. Morrison........................................................
Vinson v. State......................................................................
W abash R. R . Co. v. K e lly ..............................................
W alsh v. City of A lb a n y ..................................................*
Warren v. Sohn................................................................... .
W atson v. State................................................................... .
W ells v. State....................................................................... .
W elliver v. F o x ................................................................... .
Wheeling Bridge & Terminal R y. Co. v. Gilmore..
Whitebreast Fuel Co. v. People....................................
W ils on v. New et a l ......................................................... .
W ilson fl. State................................................................... .
W ilson v. State....................................................................
Winkler v. Racine W agon & Carriage C o.................
Wisconsin & A . Lumber C.o. v. Reaves....................
Wisconsin & A . Lumber Co. v. Thom pson.............
W olcott v. Frissell..............................................................
W oodson v. State...............................................................
W right v. Hoctor................................................................
Wynhamer v. People.........................................................
W ynn e v. Seaboard Air Line R y. C o.........................




Citation.

1902
1915

143 N . C. 620...............
52 S. C. 580...................
144 Ala. 77...................
127 N . C. 550...............
150 A la. 6 6 ...................
124 N . C. 796...............
150 N . C. 802...............
32 S. C. 123...................
7 Kans. A p p . 428___
61 K ans. 32..................
65 K ans. 237................
154 N . Y . Supp. 627.

1906
1914
1907
1908
1902
1879
1903

126 Ga. 92....................
69 Oreg. 519.................
83 A rk. 445...................
56 Fla. 570....................
136 Cal. 122..................
101 U . S. 814...............
160 Ind. 338.................

1885
1906

110 Pa. St. 3.,
124 Ga. 7 9 8 ...
97 Ala. 7 8 . . . .
122 Ind. 433.
4 Ind. A p p. 66........................
13 Ala. A p p . 431....................
22 N . H\ 339.............................
13 Ga. A p p . 10.......................
13 Johnsons R ep. (N . Y .) I
15 111. A p p. 241.......................
169 Ind. 316.............................
160 Ind. 564.............................
141 Ala. 120.............................
124 Ga. 69.................................
102 S. C. 483.............................
84 Ark. 494...............................
85 Ark. 346...............................
2 Cranch, 358...........................
94 U . S. 400.............................
235 U . S. 133...........................
128 Ga. 661..............................
114 Me. 256..............................
124 Ga. 19................................
153 Ind. 119.............................
52 N . Y . Supp. 936...............
112 Ind. 213........................... .
124 Ga. 454..............................
6 Ga. A p p. 162.......................
4 Pa. Dist. R . 197.................
4 Ohio C. D . 366....................
175 111. 51..................................
37 Sup. Ct. 298......................
124 Ga. 22................................
138 Ga. 489..............................
99 W is. l M ..............................
82 Ark. 377..............................
87 Ark. 574..............................
134 Mass. 1 ..............................
69 Ark. 521.............................
95 Nebr. 342...........................
13 N . Y . 386...........................
96 S. C. 1 .................................

1915
1851
X913
1816
1884
1907
1903
1904
1905
1915
1907
1908
1806
1876
1914
1907
1915
1905
1887
1905
1909
1895
1894
1898
1917
1905
1912
1898
1907
1908
1883
1900
1914
1856
1913

O

Cited in
this bulle­
tin, p .—
127
125
123
127
123
127
127
125
138.157
138.157
57
72
126
39,40,177
120
102
115
168
54,151,
157,165,
169
168
126
123
106
89,106
124
70
126
70
133
82,89,162
89
123
126
121
162
115
168
54,156
124
127
77
126
129
53
168
126
127
97
80
113,137
43
126
126
121
120
120
34
139
64
28
121

INDEX.

Pa^.
Basis oflegislation, determ
inationof........................................................................ J75-177
Contract, freedomof:
A aconstitutional right.................................................................................. 164-172
p
Early conditions in Am
erica................................................................................11-13
Individual fights............................................................................................. 23,24
1/imitationson.................................................................................. .............17-19
Theoreticalconsideration...................................................................... ............ 5,6
Corporations, laborcontraots of............................................................................... 157, i58
Courts:
Ajttitude of, towardfreedomofcontract........................................................ 14-17,1,46-163
Organizationof............................................................................................... 25-27
M^tiqn of, to public opinion...................................................................... 20-28,27-32
Deductionsfromw legal regulationof................................................................. 1 & 3
ages,
2 -1 1
Illinois......................................................................................................... 1 9
2
Indiana........................................................................................................ 1 9
2
M
aryland...................................................................................................... 1 0
3
M
assachusetts.......................................................................................... 128,129,130
M
ichigan....................................................................................................... 1 0
3
Nevada........................................................................................................ 1 0
3
N Jersey.................................................................................................... 1 1
ew
3
Ohio......................................................................................................... 129,130
Tennessee...................................................................................................... 1 0
3
Dueprocessof law................................................................................................15,16
Futureof w
agerpaym legislation......................................................................... 173-179
ent
Individualismand social control............................................................................. 146-152
“Laissez faire,” abandonm ofdoctrine of............................................... 20-22,153-103,168-172
ent
M ©labor, protectionof............................................................................. 133-I4p, 158,159
in
Screeningcoal.............................................................................................. 136-142
W
eighingcoal at m
ines................................................................................... 133-135
M of paym ofwages............................................................................ 94-117,159-161
ode
ent
Englishtrucklaws........................................................................................... 94-96
Statelegislation............................................................................................. 96-115
Arkansas.................................................................................................. 1 5
1
Colorado................................................................................................ 100,101
Florida.................................................................................................... 1 2
0
Illinois............................................................................................. 100,113,114
Indiana................................................................................................. 102,106
Kansas.................................................................................................... 1 1
0
Kentucky................................................................................................. Ill
Louisiana................................................................................................. 1 4
1
M
aryland.......................................................................................... 101,102,104
M
issouri................................................................................................ 108-110
N Jersey............................................................................................ 112,113
ew
NorthCarolina........................................................................................... 1 0
1
Ohio....................................................................................................... 9
9
Pennsylvania................................................................................... 97,98,104,105
SouthCarolina........................................................................................... 1 4
1
Tennessee.......................................................................................... 103,106-108
Texas................................................................................................... 113-115
Virginia................................................................................................... 1 3
1
W
ashington............................................................................................ 110,111
W Virginia................................................................................. 99,100,105,106
est
Payments due deceasedemployees.......................................................................... 122,123
Paymentsto dischargedem
ployees.......................................................................... 118-122
Arkansas.................................................................................................... 119,120
Connecticut................................................................................................... 1 8
1
Idaho.......................................................................................................... 1 2
2
Indiana......................................................................................................121,122
M
aine.......................................................................................................... 1 9
1
SouthCarolina............................................................................................. 120,121
Texas........................................................................................................ 118,119
Place of paym ofwages.................................................................................... 132,133
ent
Public control of w conditions, trend toward...........................................................177-179
age
itesof w legal regulationof.............................................................................. 33-67
ages,
In privateem
ploym
ents............................................................................. 33-47,66,67
M umwages.........................................................................................34-47
inim
Adam law....................................................................................... 42-47
son
Foreignlegislation..................................................................................35-37
Statelegislation.....................................................................................37-42
185
105598°—18— Bull. 229------ 13




186

INDEX.

Rates of wages, etc.—Continued.
Page.
On public w ork.............................................................................................................................................. 47-64,156,157
Foreign legislation................................................................................................................................................. 47-49
State legislation...................................................................................................................................................... 50-64
California...........................................................................................................................................................51,52
Indiana........................................................................................................................................................ 50,54,55
Iow a....................................................................................................................................................................
56
Kansas................................................................................................................................................................56-59
Nebraska..................................................................................................................................................... 52,53,64
N ew Y o rk ....................................................................................................................................... 51,53,54,59-64
O hio....................................................................................................................................................................
55
Pennsylvania..................................................................................................................................................
55
Washington...................................................................................................................................................... 55,56
W yom in g.......................................................................................................................................................... 50,51
Reduction of wages...........................................................................................................................................................131,132
Refusal to pay wages............................................................................................................................................................
131
Repayment of advances.............................................................................................. *..................................................123-127
Alabam a........................................................................................................................................................................ 123,124
Georgia...........................................................................................................................................................................126,127
Louisiana...................................................................................................................................................................... 124,125
North Carolina................................................................................................................................................................
127
South Carolina............................................................................................................................................................ 125,126
Restrictions on payments of wages, summary of...................................................................................................142-145
Social control and individualism............................................................................._
...................................................146-152
Social legislation:
Backwardness of America in regard t o .................................................................................................................
25
Changing attitude of courts toward wage-payment legislation------- ,.................................................... 153-163
u Statutes oflaborers ” ......................................................................................................................................................... 8-10
Tim e of payment of wages.................................................................................................................................. 68-93,161,162
Foreign legislation.......................................................................................................... , , ....................„ . , ............... 68,69
State legislation.......................................................................................................... ....................................................70-93
Arkansas....................................................................................................................................................................86,87
California...................................................................................................................................................................89-91
Colorado................................................................................................................ ....................................................
86
Connecticut..............................................................................................................................................................
71
Illinois........................................................................................................................................................................
73
Indiana.................................................................................................................................................... 74,75,77-79,89
Iow a.......................... ................................................................................................................................................. 84,85
Kentucky................................................................ ........................... ......................................................................85,86
Maine...................................................................... ...............................................................................................
77
Maryland...................................................................... ............................................................................................
85
Massachusetts.................................................................................................................................................... 70,73,74
Mississippi................................................................................................................................................................ 91,92
Missouri.....................................................................................................................................................................81,82
N ew Hampshire.....................................................................................................................................................
71
New Y o rk ..................................................................................................................................................... 71,72,82-84
O hio............................................................................................................................................................................ 80,81
Pennsylvania...........................................................................................................................................................79,80
Rhode Island...........................................................................................................................................................72,73
Tennessee.................................................................................................................................................................. 87,88
Verm ont.................................................................................................................................................................... 75,76
Biweekly payments...................................................................................................................................................... 76-88
M onthly payments........................................................................................................................................................88-92
W eekly paym ents.........................................................................................................................................................70-76




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