Statutory provisions against accidents to workmen reveal quite as much timidity as do provisions regarding employers’ liability. The yearly number of accidents in our industries is unknown, and can be only roughly guessed at. The investigation of the New York Commissioner of Labor, in the spring of 1899, would indicate a yearly average of 14,576 accidents for factory workers alone in one State. In the Pennsylvania anthracite mines more than 400 persons are killed every year, and in the bituminous mines of the same State the yearly average for the period 1895-98 was 171 killed and 421 injured. An official report made to the United States Geological Survey in September gives the record of lives lost in mining coal for the year 1901 as 1467, and the number of workmen injured as 3643. In the anthracite mines of Pennsylvania 513 men were killed and 1243 injured, and in the bituminous fields of the same State 301 were killed and 656 injured. The railroads provide a yearly Gettysburg, with some 40,000 casualties to workmen alone; and many an industry annually furnishes its humble Bull Run or Fort Donelson.
Regulations, however, proceed cautiously, not to say haltingly; they are generally tame regulations, they are frequently disobeyed, and their effect on the casualty rate is anything but radical. Though for 1901 the increased use of safety appliances lessened the percentage of coupling accidents on railroads, the percentage actually increased for 1898, 1899, and 1900. Since 1898 there has been an increase in the rate of accidents in coal mining, and doubtless, also, if the figures were known, an increase could be shown for factories and workshops.
Although twenty-one States, according to Mr. William F. Willoughby, in the Bulletin for January, 1901, provide for an inspection service in factories, only thirteen impose specific provisions making it obligatory upon factory and mill owners to take certain precautions against accidents. Only one of these laws, moreover,—that of Ohio,—may fairly be called an adequate and definitely expressed statute. There are but five States that have enacted laws “the purpose of which is to make it obligatory upon directors of building and construction work to take certain precautions against accidents,” and only one of these (New York) has given the measure an adequate comprehensiveness. Twenty-three States have more or less elaborate mining regulations; but as compliance with these laws is usually left to the honor and benevolence of the mine owner, and as mining accidents continue at a practically static rate, it is hard to see the beneficial result. Some of the States compel railroads to block or guard frogs, and several have laws independent of the Federal statute of 1893, requiring the use of automatic couplers and power brakes. The former may be evaded, however; and, in the absence of statute imposing liability, the evasion counts for nothing in behalf of an injured workman’s claim for damages. The effect on the accident rates has already been mentioned.
Dr. Sarah S. Whittelsey’s paper in the Annals of the American Academy for July, 1902, summarizes the report of the Industrial Commission on the results of factory legislation in the various States. From this it appears that only about half the States have passed what may be called factory acts, many of which are mere fire-escape provisions, and that there are almost no factory acts in the South, nor in the more distinctly agricultural States of the West. New Hampshire, Vermont, Nebraska, and California generously permit the employment in factories of children ten years old; seven States put the limit at twelve years, two at thirteen, ten at fourteen, and one makes the limit fourteen years for girls and twelve years for boys. Working hours have been more or less regulated for women and minors in fifteen States, and for minors alone in nine States. Courts in three States, however, have declared acts regulating working hours of women unconstitutional. In sixteen States, three Territories, and the District of Columbia there is absolutely no limitation for persons of any age or sex. Aside from certain occasional acts relating to the payment of wages, to inspection, and to employers’ liability, this is a complete summary of protective legislation concerning the industries that employ 5,321,087 of the Nation’s wage-earners.
Mr. Fessenden gives a summary of the laws for the protection of workmen in their employment, in the Bulletin for January, 1900. The most timid conservative may read it with relief, for any fears of an undue lodgment of power in the working classes will be effectually banished by its perusal. Only nine States have gone so far as to enact into statute the supposed common-law principle that combinations of workmen, formed for the purpose of seeking increase of wages and betterment of conditions, are not of themselves unlawful. Four others specify that the provisions of their “anti-trust” acts do not apply to combinations of labor. On the other hand, the anti-conspiracy laws of eleven States are capable of interpretation which would penalize many of the peaceable methods of labor societies, and such interpretations have been frequently made.
Moreover, the wording of Sections 3995 and 5440 of the Federal Revised Statutes, chapters 647 of the Anti-trust act, and 104 of the Interstate Commerce act, and the amendment of 1889 to the latter, are capable of interpretation to the effect that collective quitting of work on railways is illegal. Decisions to that effect have several times been made in the United States courts. “A strike, or a preconcerted quitting of work,” reads the decision in United States vs. Cassidy (1895) before the District Court of the United States for the Northern District of California, “by a combination of railroad employees, is in itself unlawful, if the concerted action is knowingly and wilfully directed by the parties to it for the purpose of obstructing and retarding the passage of the mails, or in restraint of trade and commerce among the States.” “It will be practically impossible hereafter,” reads the United States Circuit Court decision in the case of Waterhouse et al. vs. Cromer (1893), “for a body of men to combine to hinder and delay the work of the transportation company without becoming amenable to the provisions of these statutes.” The indefinite diction of many of the State laws against “intimidation and coercion” also gives wide scope to judicial discretion, and permits the occasional naming of the most innocuous acts as “coercion.”
The necessity of peace in an industrial society is everywhere recognized; and it is, therefore, not surprising that really earnest efforts have been made in behalf of arbitration. It obtained, in a measure, during the older Feudalism, through the “courts baron,” which considered tenantry and wage-questions; and it is becoming more common day by day. Within sixteen years twenty-one States and the United States have passed more or less effective measures looking to its use in labor disputes. Political coercion is also a matter that has won a large share of legislative attention; twenty-nine States and two Territories have enacted laws regarding it. There is, however, an important distinction to be made. In an ordinary conflict of political issues, when the magnates and their retainers are to be found in both parties, it is obvious confusion and the unsettling of political conditions for the employers to dictate how their workmen shall vote. But when political issues suggest a class conflict, as in 1896, some of the provisions of these laws are by common consent waived. The humble toiler may vote as he likes on the immaterial questions of ordinary campaigns; but on questions having to do with the salvation of society and the preservation of the hallowed code of “business,” instruction and even gentle pressure become the solemn duty of his social betters. There are fewer laws, it may be observed, regarding another kind of coercion. Discharges on account of membership in a labor union are forbidden in but fifteen states; and in two of these (Illinois and Missouri) such provisions have been found, after much painstaking study, to be unconstitutional. The discovery is considered a most happy one; and according to the injunction of the Federal Constitution, that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,” the ruling will no doubt be found applicable in a number of the other commonwealths.
IV
Our lawmakers are not to be blamed for decisions of unconstitutionality. Rather, they are to be congratulated. For the recent tendency of the judges to determine for themselves what shall be enacted into law has developed new refuges for the lawmakers. We have now Solon, the legislator, and Rhadamanthus, the judge, in new rôles—the rôles of the good and bad partner of Dickens’s novel. To the humble voter, when the pressure from below conflicts with the pressure from above, Solon is now able to stand as the supporter of popular measures, and to throw upon the less responsible Rhadamanthus the onus of declaring them bad law. The fury of the magnate at Solon’s demagogy is mitigated, if not extinguished, when he considers the difficulties of the lawmaker’s position, and especially by the further consideration that Rhadamanthus has the final word to say. Solon has other refuges, it is true; and sometimes these must be availed of, for it is not always certain that a projected popular measure can be declared unconstitutional. For several years it had been considered possible, for instance, that an employers’ liability act, if passed in New York, would stand the test of the courts. It became the custom, therefore, when an adequate measure on this subject was introduced, for the adverse interests to introduce a conflicting bill. The ingenious lawmaker thereupon regretfully found a divided public sentiment, and as a consequence no bill was passed. There are no reasons at hand for accounting for the fact that at the last session of the Albany legislature such a measure was actually enacted.