It is clear that the ultimate effect of uniform labor legislation will not be one law applying throughout the length and breadth of this great land, but rather a graded system. It will determine a minimum standard of regulations, a basal plane, of competition for American industry. Above this it will still be necessary for the local government in many places to impose stricter requirements where there is complexity of organization, but in that which is fundamentally essential to the common well-being of the community there will be one limit approved for all that may not be transgressed.
The suggestion made in the Industrial Commission’s report as to how this standard may be determined is especially well considered:
“In conclusion the Commission would recommend the establishment by all the states of labor bureaus or commissioners, who shall, besides their local duties as now defined, be charged with that of exchanging their statistics and reports, and of convening at least once in a year in national conference for general consultation, which national conference shall have power to submit directly to Congress its recommendations for such federal legislation as a majority of the state commissioners may deem advisable, and shall also submit to all the states, through the commissioners of each separate state, their recommendations for such uniform state statutes upon labor subjects as may seem wise and desirable.”[[40]]
If we rightly interpreted the action of local governments in establishing these bureaus of labor, as a step towards more scientific legislation in those states, surely this plan of a national conference of state commissioners of labor stands for a still more important extension of the scientific method in questions of labor legislation. It also illustrates a tendency that is becoming more and more evident, namely, the fuller reliance that is being placed upon “intelligence as a social regulator” and “publicity for controlling industry and commerce.” Make known the actual conditions that prevail, point out the appropriate remedy, and the weight of an informed public opinion will go far to force reform whether through an act of legislation or through the influence which may be exerted by consumers upon producers. Indeed the battle cry of the day is, “Give us but an enlightened public opinion and our fight is three-quarters won.”
The suggestion of regulating business relations through the pressure of public sentiment has been seized upon with almost too great avidity by some who would apply it as the immediate and sufficient solution of all labor difficulties and as an argument against the enactment of any statutory regulations whatever. Such a proposition appears, however, of doubtful value at present under the conditions of unenlightenment that unfortunately prevail, and it may be feared, does not proceed from the best friends of labor.
Constitutionality.
Recurring to this fact of opposition, already earlier noted, it has been questioned whether this counter-movement does not offer a real menace to the future growth of the labor laws, and indeed to the continued existence of the present body of legislation. In a number of instances where labor laws have been brought to the test of a court decision they have been pronounced unconstitutional and annulled upon the ground that they “contravene freedom of contract,” are “class legislation” and so forth. This has been the fate of statutes regulating the hours of labor for women over twenty-one years of age in Nebraska, California and Illinois; of weekly payment laws in Pennsylvania, Illinois, Missouri, West Virginia and Indiana; of anti-truck acts in Pennsylvania, Ohio, Illinois and West Virginia; and of those prohibiting company stores or coercion of purchase in Pennsylvania, Illinois and Tennessee.
In Massachusetts, on the contrary, the regulation of hours was sustained “as a health or police regulation.” Also at the time when the bill for the extension of the act concerning weekly payments was before the legislature the justices returned as their opinion to the House of Representatives that such an act was within the constitutional power of the General Court to pass. It is also worthy of notice, that in spite of the decision by the Supreme Court of Nebraska in 1894,[[41]] a new law defining hours of labor for women was passed in 1899, and to-day applies not only in factories, but in restaurants and hotels as well. Again, in the report just reviewed, the commissioners have recommended the general enactment of an anti-truck and freedom of purchase act in spite of the decisions of Pennsylvania, Illinois and Tennessee courts.
Verdicts of unconstitutionality have therefore hardly affected more than the very border of the factory laws; the regulation of child labor, of workroom conditions, of hours of labor for minors, have never even been questioned. It hardly seems likely that any of these laws will ever be put to the court test at all. Both in England and in this country, they have proven generally beneficial to public interest, they have been pretty cheerfully accepted and obeyed; they have gained public approval; they have the political support of a large labor party. Perhaps the apparently adverse action of the courts ought rather to be looked upon as a healthfully conservative influence against possible evil results of hasty and ill-considered legislation or attempts to interpose legislation where the object could be better obtained by the effective organization of labor and should be left to the initiative of the unions.
Factory legislation has been inevitably necessitated by the action of economic and social forces, and may, in fact, be regarded as a natural phenomenon accompanying the growth of the factory system of manufacture. It has developed against the opposition of extreme doctrines of free contract, and having demonstrated itself in the facts of actual life has also created a new theory of the relation of the state to labor and industry.