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store in that it seeks to attain the same end by requiring employers paying in “orders” of any sort to redeem the latter in lawful money on demand. After explaining at length the significance of the phrases "law of the land” and “due process of law” contained in the state and federal constitutions, the court says: 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 something 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. ...
Furthermore, the passage of the act was a legitimate exercise of the police power, and upon this ground also the legislation is well sustained. . . . Besides the amelioration of the employee's condition, the act was intended 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.
. . . Such being the character 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.? The reasoning of this decision is all the more significant, because when the case was appealed to the federal supreme court that tribunal declared that “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” 3 and itself sustained the law.
A comparison of these different decisions appears to justify the conclusion that the constitutionality of truck legislation depends upon the reality of the abuses that such legislation is intended to correct. If, as a matter of fact, workmen constitute a class in the community that needs special protection because specially exposed to unfair treatment by unscrupulous employers, the high-sounding 1 Act of March 23, 1899.
53 Southwestern Reporter, p. 955. 8 Oct. 21, 1901, 22 Supreme Court Reporter, p. 1.
phrases of the Kansas decision lose all point. If, as a matter of fact, the company-store abuse is the cause of “strife, violence, and even bloodshed” between workmen and employers, the police power may be called in to suppress it. If, finally, as a matter of fact, these evils arise only where enterprises employ ten or more men, then limiting the prohibition to such enterprises is a reasonable and proper restriction, not open to the constitutional objection that it involves special or class legislation. In the earlier decisions cited the courts were vehement in their condemnation of attempts to restrain freedom of contract in reference to wages; but at the same time they were enforcing, as a matter of course, usury laws imposing even more drastic restrictions upon freedom of contract with reference to interest. The latter were approved because their utility was appreciated. The former were condemned because the judges had in mind the conditions of an earlier industrial society in which wage-earners were not a class by themselves and consequently were not in need of special protection. As the need of such restrictions becomes manifest, may we not be certain that doubts in regard to their constitutionality will vanish?
The Sunday labor of barbers has been the frequent object of legislative solicitude. In the decision cited the California statute limiting such labor was declared unconstitutional on the ground that it involved special or class legislation. Similar measures have been condemned on the same ground in Missouri,' Illinois ? and Washington. In New York, Michigan, Tennessee, Minnesota and Oregon, on the other hand, the state legislatures have been upheld in enacting Sunday closing laws applying only or in a special way to barbers. Moreover, the United States supreme court has upheld such legislation in a case appealed to it under the Minnesota law. The arguments in support of Sunday laws applying only to barbers will appear from a few extracts from these decisions.
In rendering its decision the New York court of appeals used the following language:
Act of March 18, 1895, in State v. Grauneman, 33 Southwestern Reporter,
? Act of June 26, 1895, in Eden v. People, 43 Northwestern Reporter, p. 1109. 3 Ordinance of City of Tacoma, 46 Pacific Reporter, p. 255.
It is to the interest of the state to have strong, robust, healthy citizens, capable of self-support, of bearing arms, and of adding to the resources of the country. Laws to effect this purpose, by protecting the citizen from over-work and requiring a general day of rest to restore his strength and preserve his health, have an obvious connection with the public welfare. . . . As barbers generally work more hours each day than most men, the legislature may well have concluded that legislation was necessary for the protection of their health. We think that this statute was intended and is adapted to promote the public health, and thereby to serve a public purpose of the utmost importance.
It is, therefore, the court concluded, a legitimate exercise of the police power.
The Minnesota act was peculiar in that it prohibited all Sunday labor except works of necessity or charity and added, “provided, however, that keeping open a barber shop on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity or charity.” In passing on the question whether this proviso did not involve special or class legislation the supreme court of the state said: The object of the law was not to interfere with those who wish to be shaved on Sunday, or primarily to protect the proprietors of barber shops, but mainly to protect the employees in them by insuring them a day of rest. . . . Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employees in them work more, and during later, hours than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday the employees would ordinarily be deprived of rest during half of that day. In view of all these facts we cannot say that the legislature has exceeded the limits of its legislative police power in declaring that, as a matter of law, keeping barber shops open on Sunday is not a work of necessity or charity.?
The decision of the federal supreme court added nothing to this
1 People v. Havnor, 43 Northeastern Reporter, p. 541 (Apr. 14, 1896).
reasoning but gave it the weight of its authority by quoting it at length in its own opinion sustaining the law. Its view was accepted as conclusive by the supreme court of Oregon, which declared, in sustaining the Sunday closing law for barbers of that state, that if the classification on which it rested is "not in conflict with the federal constitution, it is necessarily not in conflict with our own.”
A comparison of these decisions indicates the grounds on which the courts hold a statute to be or not to be special or class legislation. As Professor Freund has summarized the principle: “Where a restraint is confined to a special class of acts or occupations, that class must present the danger dealt with in a more marked and uniform degree than the classes omitted.” In some of the states the courts have failed to see anything about the business of barbers which justifies special Sunday legislation for their protection. In other jurisdictions full weight has been given to the peculiarities of this trade: the tendency to keep open evenings and Sunday mornings to accommodate customers who might with little inconvenience come at other times and, consequently, to require excessively long hours of attendance on the part of employees. With these peculiarities in mind, one can easily answer such objections as were urged by the supreme court of California against legislation of this character. The view that it is oppressive to the barbers themselves is readily disposed of by the consideration that it is these very barbers who most eagerly desire it. It is of no advantage to them as a class to incur serious discomfort for the accommodation of customers when a little compulsion would cause these customers to come at more convenient hours. It is not the eagerness of barbers to work seven days in the week that causes their shops to be kept open on Sundays, but the pressure of an unregulated competition which they would be only too glad to restrain. The comparison of barbers with "streetcar operatives” and the "employees of our daily newspapers” which the court suggests is quite beside the mark, for the obvious reason that in the case of the latter suspension of labor on Sun
20 Supreme Court Reporter, p. 666 (April 9, 1900).
days would mean not merely the concentration of work in the other days of the week but the entire deprivation of the public of services upon which its wellbeing largely depends. The fact that these classes also need “rest and protection,” granting that this is the case, is no valid objection to protecting barbers by a law well adapted to their industry but not at all suited to the others mentioned. It is not necessary to follow these considerations further to show that when a law extending protection to a special class is really beneficent and equal in its operation the constitutional objections to it fall away. Here, as in the case of the truck acts already considered, the constitutional and the economic aspects of the question are so intimately related that we may be certain that a court which believes a protective law economically desirable will find it legally admissible.
Truck acts and special Sunday closing laws are measures of relatively slight moment to the people of the United States. The attention devoted to them is justified only by the importance of the principles involved in the decisions to which they have given rise. I come now to a series of decisions of quite a different ·character. No labor question has been more prominently before the American public in recent years than that as to the proper length of the working day. Until quite lately it has been assumed that this was a matter with which state legislatures could not interfere, except as regards minors, women and public employees. The decisions which have reversed this opinion, at least for some of the states, merit careful consideration because they have made valid more extreme protective labor laws than are yet to be found in any European country. The first law of this character to be finally sustained by the courts was the ten-hour law applying to bake-shops passed in 1895 by the legislature of New York state. Before this statute came before the courts, however, the Utah eight-hour law of 1896, applying to mines and smelters, had been sustained not only by the supreme court of that state, but by the federal supreme court. The latter legislation thus merits prior consideration.
When Utah was admitted to statehood in January, 1896, it had as one of the novel features of its constitution an article (article xvi) treating exclusively of labor. Among other things