A principle somewhat akin to that of a vote of a town fixing the rate of wages is the recent constitutional amendment in the State of New York (see above, p. 161) which validated the statute requiring that in public work (that is to say, labor for the State, for cities, towns, counties, villages, school districts, or any municipality of the State), or for contractors employed directly or indirectly by the State or such municipality, that rate shall be paid which is usual at the time in the same trade in the same neighborhood. This was the earliest statute, which was declared unconstitutional (see above, p. 161). The lack of interest in this tremendously important matter is shown in the fact that not one-third of the voters took the trouble to vote on the amendment at all, and that for three days after the election no New York newspaper took notice of the fact that the amendment had passed. Up to this constitutional amendment the courts of New York, as well as those of California and even of the United States, had resented with great vigor the attempt of statutes to make a crime the permitting of a free American citizen to work over eight hours if he liked so to do. But in New York at least (now followed in Delaware, Maryland, and Oklahoma) it is now settled that so much interference even with the rate of wages may be allowed, and as the percentage of public employment is, of course, very large—covering as it does not only all public contractors, but all labor in or for gaols or public institutions—it will necessarily, it would seem, drag with it a certain practical regulation of private industry corresponding to the public rules.
In England, the New Zealand experiment has been tentatively begun; that is to say, in the last radical Parliament, in the autumn of 1909, the law was enacted, already referred to, for fixing wages by mixed commission (see above, p. 159); but otherwise than as above there is in the States and Territories of the United States, and in the United States itself, no regulation of wages, even of women or children, and no attempt, as yet, at a minimum wage law.
When we come to hours, the matter is very different. In the first place, we must be reminded that without a constitutional amendment you cannot have any direct or indirect legislation, as to general occupations, on the hours of labor of a man of full age.[1] You can have regulation of the hours of labor of a woman of full age in general employments, by court decision, in three States (Massachusetts, Oregon, and Illinois), the Massachusetts decision, carelessly rendered in 1876, without citing any authority whatever,[2] being based apparently on a vague notion of general sanitary reasons, without argument or apparently due consideration of the historical and constitutional law; but the Oregon case,[3] decided both by the State Supreme Court and by the Federal Court in so far as the Fourteenth Amendment was concerned, after most careful and thorough discussion and reasoning, reasserted the principle that a woman is the ward of the state, and therefore does not have the full liberty of contract allowed to a man. Whether this decision will or will not be pleasing to the leaders of feminist thought is a matter of considerable interest. A similar statute in Illinois had been declared unconstitutional twenty years before, largely on the ground that to limit or prohibit the labor of woman would handicap her in her industrial competition with man, pointing out also that the Illinois Constitution itself prescribes and requires that the rights of the sexes should in all respects be identical, save only in so far as jury and militia service and political rights were concerned. A new statute since the Oregon decision has been passed in Illinois and the law was sustained, reversing the older case. On the other hand New York courts take a position squarely contrary,[4] and so in Colorado.[5] The constitutional justification of these decisions must probably be that the health not only of the women themselves, but of the general public, or at least of posterity, is concerned, for, as we shall find more particularly when we discuss general legislation on the police power, to justify an interference with personal liberty of freemen there must, under English ideas, be a motive based upon the health, safety, and well-being of all of the whole community, not merely of the particular citizen concerned. He has the right to work in unhealthy trades at unhealthy times, or under unhealthy conditions, just as he has the right to consume unhealthy food and drink. If it be prohibited, it must be prohibited when it has a direct relation to the general welfare. For example, a railway engineer may be prohibited from working continuously for more than sixteen hours, for that is a direct danger to the safety of the public; but a man may not be prohibited from taking service for long hours as stoker on a steamship, although the life of a stoker be a short one and not over merry. Apparently, however, a woman can be; and indeed there have for a long time been laws prohibiting the labor of women in England and regulating their hours. But then there are laws prohibiting women from serving in immoral occupations, or occupations which are supposed to be dangerous to their morals, as, for instance, many States have laws against the serving of liquor, or even of food, by women or girls in places or restaurants where liquor is served, or for certain hours, or in certain places. Very conceivably a law might be passed prohibiting women and girls from the selling of programmes, or attending upon dime museums, or even selling newspapers, or being district messengers; but, as we all know, there are women cabmen in Paris. Would legislation prohibiting such employment to women be unconstitutional? There is already a considerable amount of it. The cases are conflicting, the earlier view, and the view taken in the South and in at least one Federal court, being that such laws are unconstitutional. The modern doctrine, backed up by that public opinion which we have above described as the ethical force, would seem to sustain them. The truth is probably that the legislature must be the sole judge of the expediency of such legislation; where the court can see that it does bear a direct relation to the morals of the young women concerned, or the morals of the general community, it will be sustained as constitutional under the police power, although to that extent interfering with the personal liberty of women and with their means of getting a livelihood.
[Footnote 1: Georgia and South Carolina have such law requiring sixty-six and sixty hours a week respectively in cotton and woollen manufacturing; but their constitutionality has never been tested. For public work, see below.]
[Footnote 2: Commonwealth v. Hamilton Manufacturing Co. 120 Mass. 383.]
[Footnote 3: Muller v. Oregon, 208 U.S. 412. So in Pennsylvania:
Commonwealth v. Beatty, 23 Penn. C.C. 300.]
[Footnote 4: People v. Williams, 81 N.E. 778.]
[Footnote 5: Bucher v. People, 93 Pac. 14.]
As to children there is, of course, no question. Laws limiting their labor are perfectly constitutional, and some child-labor laws exist already in all States and Territories except Nevada. The only dispute on the child-labor question is whether such legislation should be Federal, or rather whether the Constitution should be so amended as to make Federal legislation possible. Practically this would meet with a very much wider opposition than is commonly supposed. The writer, acting as chairman of the National Conference of Commissioners on Uniformity of Legislation appointed under laws of more than thirty States of the Union and meeting in Detroit, Michigan, in 1895, brought this matter up under a resolution of the Legislature of the State of Massachusetts requesting him to do so. Nearly every Southern delegate and most of those from the West and from the Middle States were on their feet at once objecting, and the best he could do was to get it referred to a committee rather than have the Commonwealth of Massachusetts summarily snubbed. This committee, of course, never reported.
Undoubtedly climatic effects, social conditions, and dozens of other reasons make it difficult, if not unwise, to attempt to have the same rules as to hours of labor in all the States of our wide country. Boys and notably girls mature much earlier in the South than they do in the North; schooling conditions are not the same, homes are not so comfortable, the money may be more needed, the general level of education is less. Doubtless there are still areas in the South where on the whole it is better for a child of fourteen to be in a cotton mill than anywhere else he is likely to go, schools not existing. The Southern delegates resented interference with their State police power for these reasons. The Massachusetts Legislature, on the other hand, had in mind the competition of Southern mills, with cheap child labor, quite as much as any desire to benefit the white or negro children of the South; but the writer's experience convinced him that a constitutional amendment on this point is impossible, although one has been repeatedly proposed, notably by the late Congressman Lovering of Massachusetts, and such an amendment is still pending somewhere in that limbo of unadopted constitutional amendments for which no formal cemetery seems to have been prepared.