Attitude of American courts in labor cases; a study in social legislation

Front matter

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STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW

EDITED BY THE FACULTY OF POLITICAL SCIENCE OF COLUMBIA UNIVERSITY

Preface

The purpose of this volume is to present the various views expressed by judges in their decisions in labor cases. They are stated as nearly as possible in the words of the judges themselves by means of liberal quotations from opin¬ ions. Intended for the student of social questions who is interested in the relations of capital and labor, it aims to show the political, economic and social principles that guide the courts in the solution of the problems that come before them. While it is true that courts always deal with particular cases and decide only specific questions, yet prin¬ ciples of necessity enter into their opinions and guide them to their conclusions. These principles this volume seeks to re¬ veal by presenting in compact form the several lines of ar¬ gument which support the decisions. It is believed that only by reading the views of the courts as expressed in their own words can they be clearly understood.

The discussion has been purposely restricted to those principles and problems that are still unsettled. The wide field in which principles are well established and where questions only of technical or minor significance are raised has not been entered. Since the purpose is to set forth the various conflicting views that obtain, the reader must be warned not to consult these pages for information as to the exact status of the law in any particular jurisdiction. Further it should be said that while in the discussion views may be expressed that are contrary to those advanced by judges in determining the law, it must be understood that no effort is made to urge that the law is not what it is.

VI

PREFACE

What the law is, it is; and as such it must be obeyed. In the discussions of opinions it is only the views expressed and the reasoning adopted that is dealt with.

The extracts have been selected from more than five hundred opinions in cases dealing with various phases of the labor problem. The selections have been made with a view: (i) to giving the varied opinions held by different judges; (2) to bringing out both sides of the controversy; and (3) to emphasizing by the larger number of selec¬ tions the extent of the acceptance of particular views. The length of the extract quoted should not, in every case, be taken as an index of its relative importance.

The material here presented has been limited to the opin¬ ions of the federal supreme and circuit courts and the state courts of last resort. A large number of intensely interest¬ ing and very significant opinions are undoubtedly found in the decisions of the lower state courts. To enter this vast field, however, would have extended the work beyond rea¬ sonable limits.

In Chapters IX, X and XVII the author has quoted freely and without special citation from his articles, “ Pre¬ cedent Versus Conditions in Court Interpretation of Labor Legislation,” 1 “ Unionism and the Courts,” 2 and “ Judi¬ cial Views of the Restriction of Women’s Hours of Labor.” 3 Exact references for all opinions cited are given in the alphabetically-arranged List of Cases (pp. 3-6).

It is hoped that the book may be found a useful supple¬ ment to text-books and lectures in courses on labor prob¬ lems, as well as of service to those who are interested in

1 Proceedings of the Third Annual Meeting of the American As¬ sociation for Labor Legislation, Publication no. 9, p. 88. Dec., 1909.

8 Political Science Quarterly, 25 : 420, Sept., 1910.

PREFACE vn these problems, but who have not sufficient time to consult the reports of the cases.

The author would be glad to thank individually the many from whom he has received helpful suggestions in the preparation of the work, but the list is too long. He is under special obligations, however, to Professor Seligman for his inspiration and encouragement, and to Pro¬ fessor Seager, not alone for advice and inspiration, but for the more arduous work that he has cheerfully undertaken of reading the manuscript.

George Gorham Groat.

October, ign.

•f

PART I Chapter page

I Introduction . 7

II The Courts . 19

III Early Cases . 35

Part II Union Activities

IV The Strike . 57

V The Boycott . 81

VI The Picket . 117

VII The Blacklist . 130

VIII Unionism . 136

IX Unionism — Legislation . 146

X Unionism— Closed Shop Contract . 162

XI Unionism — Rights of Unions . 169

XII Special Topics . 21 1

XIII Conclusions . 234

PART III LEGISLATION XIV Payment of Wages . 261

XV Payment of Wages— Screening Coal . 275

XVI Hours of Labor — Mines and Smelters . 281

XVII Hours of Labor — Women . 292

XVIII Hours of Labor— Bakers . 311

XIX Hours of Labor— Barbers . 325

XX Tenements . 334

XXI Conditions versus Precedent . 341

XXII Conclusions . . 360

IX

Part I I

(The following is a list of the cases of most importance from the point of view of the principles discussed in the opinions. For each case the state and the year as well as the reference are given.)

Adair v. United States, U. S. Supreme Court, 1908, 208 U. S., 161. Adams v. Brenan, Illinois, 1898, 52 N. E., 314.

Allis Chalmers Co. v. Iron Moulders’ Union, U. S. Circ. Ct., 1906, 150 Fed., 155.

Arthur v. Oakes, U. S. Circ. Ct. of Ap., 1894, 63 Fed., 310.

Atchison T. & S. F. Ry. v. Gee, U. S. Circ. Ct., 1905, 139 Fed., 582. Atkin v. State of Kansas, U. S. Sup. Ct., 1903, 191 U. S., 207.

Barr v. Essex Trades Council, New Jersey, 1894, 30 Atl., 881.

Beck v. Railway Teamsters, Michigan, 1898, 77 N. W., 13.

Berry v. Donovan, Massachusetts, 1905, 74 N. E., 603.

Bohn Mfg. Co. v. Hollis, Minnesota, 1893, 55 N. W., 1119.

Booth v. Burgess, New Jersey, 1906, 65 Atl., 226.

Boyer v. Western Union, U. S. Circ. Ct., 1903, 124 Fed., 246.

Braceville Coal Co. v. People, Illinois, 1893, 35 N. E., 62.

Broad, In re, Washington, 1904, 78 Pac., 1004.

Carew v. Rutherford, Massachusetts, 1870, 106 Mass., 1.

Carter v. Oster, Missouri, 1908, 112 S. W., 995.

Casey v. Typographical Union, U. S. Circ. Ct., 1891, 45 Fed., 135.

Cohn v. People, Illinois, 1894, 37 N. E., 60.

* Commonwealth v. Carlisle, Court of Nisi Prius, Philadelphia, 1821, Brightley’s Rep., 36.

Commonwealth v. Hamilton Mfg. Co., Massachusetts, 1876, 120 Mass.,

A Commonwealth v. Hunt, Massachusetts, 1842, 4 Metcalf, hi. Commonwealth v. Perry, Massachusetts, 1891, 28 N. E., 1126. Cumberland Glass Mfg. Co. v. Glass Bottle Blowers’ Association, New Jersey, 1899, 46 Atl., 208.

Curran v. Galen, New York, 1897, 46 N. E., 297.

Dalton, In re, Kansas, 1899, 59 Pac., 336.

Eden v. People, Illinois, 1896, 43 N. E., 1108.

Erdman v. Mitchell, Pennsylvania, 1903, 56 Atl., 327.

Farmers’ Loan and Trust Co. v. No. Pacific Ry. Co., U. S. Circ. Ct., 1894, 60 Fed., 803.

Flaccus v. Smith, Pennsylvania, 1901, 48 Atl., 894.

Fletcher Co. v. International Association, New Jersey, 1903, 55 Atl.,

Frorer v. People, Illinois, 1892, 31 N. E., 395.

Gillespie v. People, Illinois, 1900, 58 N. E., 1007.

Godcharles v. Wigeman, Pennsylvania, 1886, 6 Atl., 354.

Gray v. Building Trades Council, Minnesota, 1903, 97 N. W., 663.

Gulf Bag Co. v. Suttner, U. S. Circ. Ct., 1903, 124 Fed., 467.

Holden v. Hardy, Utah, 1896, 46 Pac., 756.

Hopkins v. Oxley Stave Co., U. S. Circ. Ct. of Ap., 1897, 83 Fed., 912. Hundley v. Louisville & N. Ry. Co., Kentucky, 1898, 48 S. W., 429. International Text-Book Co. v. Weissinger, Indiana, 1902, 65 N. E., 521. Jacobs, In re, New York, 1885, 98 N. Y., 98.

Jacobs v. Cohen, New York, 1905, 76 N. E., 5.

Jentzsch, Ex parte, California, 1896, 44 Pac., 803.

Jersey City Printing Co. v. Cassidy, New Jersey, 1902, 53 Atl., 230. Johnson v. Goodyear Mining Co., California, 1899, 59 Pac., 304.

Jones v. VanWinkle, Georgia, 1908, 62 S. E., 236.

Jordahl v. Hayda, California, 1905, 82 Pac., 1079.

Karges Furniture Co. v. Wood-Workers’ Union, Indiana, 1905, 75 N. E.,

King v. Ohio & Miss. Ry. Co., U. S. Circ. Ct., 1877, 7 Biss., 529. Knoxville Iron Co. v. Harbison, U. S. Sup. Ct., 1901, 183 U. S., 13. Lennon, Ex parte, U. S. Sup. Ct., 1897, 166 U. S., 548.

Lindsay & Co. v. Montana F. of L., Montana, 1908, 96 Pac., 127. Lochner v. People of the State of New York, U. S. Sup. Ct., 1905, 198 U. S., 45.

Loewe v. California F. of L., U. S. Circ. Ct., 1905, 139 Fed., 71.

Loewe v. Lawlor, U. S. Circ. Ct., 1906, 148 Fed., 924.

McCain v. State, Georgia, 1907, 58 S. E., 550.

McLean v. State, Arkansas, 1906, 98 S. W., 729.

McLean v. State, U. S. Sup. Ct., 1909, 29 Sup. Ct. Rep., 206.

Marx & Haas Co. v. Watson, Missouri, 1902, 67 S. W., 391.

Morgan, In re, Colorado, 1899, 58 Pac., 1071.

Muller v. State of Oregon, U. S. Sup. Ct., 1908, 208 U. S., 412.

National Protective Association v. Cumming, New York, 1902, 63 N. E., 369.

* Newman, Ex parte, California, 1858, 9 Cal., 502.

O’Brien v. People, Illinois, 1905, 75 N. E., 108.

Old Dominion S. S. Co. v. McKenna, U. S. Circ. Ct., 1887, 18 Abbott N. C., 262.

O’Neil v. Behanna, Pennsylvania, 1897, 37 Atl., 843.

o

Otis Steel Co. v. Local Union, U. S. Circ. Ct., 1901, no Fed., 698. Parkinson Co. v. Building Trades Council, California, 1908, 98 Pac., 1027.

Payne v. Western & Atlantic R. R. Co., Tennessee, 1884, 49 Am. Rep.,

Peel Splint Coal Co. v. State, West Virginia, 1892, 15 S. E., 1000. People v. Coler, New York, 1901, 59 N. E., 776.

% People v. Fisher, New York, 1835, 14 Wendell, 9.

People v. Grout, New York, 1904 72 N. E., 464.

People v. Havnor, New York, 1896, 43 N. E., 541.

People v. Lochner, New York, 1904, 69 N. E., 373.

People v. Marcus, New York, 1906, 77 N. E., 1073.

People v. Melvin, New York, 1810, 2 Wheeler Cr. Cases, 262.

People v. Metz, New York, 1908, 85 N. E., 1070.

> People v. Trequier, New York, 1823, 1 Wheeler Cr. Cases, 142.

People v. Williams, New York, 1907, 81 N. E., 778.

Perkins v. Pendleton, Maine, 1897, 38 Atl., 96.

Petit v. State of Minnesota, U. S. Sup. Ct., 1900, 177 U. S., 164. Pickett v. Walsh, Massachusetts, 1906, 78 N. E., 753.

Plant v. Woods, Massachusetts, 1900, 57 N. E., ion.

Platt v. Philadelphia & Reading R. R. Co., Pennsylvania, 1894, 65 Fed., 660. Pope Motor Car Co. v. Keegan, U. S. Circ. Ct., 1906, 150 Fed., 148. Ramsey v. People, Illinois, 1892, 32 N. E., 364.

Republic Iron and Steel Co. v. State, Indiana, 1903, 66 N. E., 1005. Reynolds v. Davis, Massachusetts, 1908, 84 N. E., 457.

Ritchie v. People, Illinois, 1895, 40 N. E., 454.

Ritchie v. Wayman, Illinois, 1910, 91 N. E., 695.

Rohlf v. Kasemeier, Iowa, 1908, 118 N. W., 276.

Secor v. Toledo &c. Ry. Co., U. S. Circ. Ct., 1877, 7 Biss., 513.

Shaffer & Munn v. Union Mining Co., Maryland, 1880, 55 Md., 74. Sherry v. Perkins, Massachusetts, 1888, 17 N. E., 307.

Skinner v. Garnett Co., U. S. Circ. Ct., 1899, 96 Fed., 735.

State v. Browne & Sharpe Mfg. Co., Rhode Island, 1892, 25 Atl., 246. State v. Buchanan, Washington, 1902, 70 Pac., 52.

State v. Cantwell, Missouri, 1904, 78 S. W., 569.

State v. Donaldson, New Jersey, 1867, 32 N. J. Law, 151.

State v. Glidden, Connecticut, 1887, 8 Atl., 890.

State v. Goodwill, West Virginia, 1889, 10 S. E., 285.

State v. Haun, Kansas, 1899, 59 Pac., 340.

State v. Holden, Utah, 1896, 46 Pac., 1105.

State v. Julow, Missouri, 1895, 31 S. W., 781.

State v. Justus, Minnesota, 1902, 88 N. W., 759.

State v. Kreutzberg, Wisconsin, 1902, 90 N. W., 1098.

State v. Loomis, Missouri, 1893, 22 S. W., 350.

State v. Muller, Oregon, 1906, 85 Pac., 855.

State v. Stewart, Vermont, 1887, 9 Atl., 559.

State v. VanPelt, North Carolina, 1904, 49 S. E., 177.

State v. Zeno, Minnesota, 1900, 81 N. W., 748.

Thomas v. Cincinnati, N. O. & T. P. Ry. Co., U. S. Circ. Ct., 1894, 62 Fed., 803.

Toledo A. A. & N. M. Ry. Co. v. Pennsylvania Co., U. S. Circ. Ct., 1893, 54 Fed., 730, 746.

Union Pacific Ry. Co. v. Reuf, U. S. Circ. Ct., 1902, 120 Fed., 102. United States v. Haggerty, U. S. Circ. Ct., 1902, 116 Fed., 510.

United States v. Kane, U. S. Circ. Ct., 1885, 23 Fed., 748.

Vegelahn v. Guntner, Massachusetts, 1896, 44 N. E., 1077.

Wabash R. R. Co. v. Hannahan, U. S. Circ. Ct., 1903, 121 Fed., 563. Walker v. Cronin, Massachusetts, 1871, 107 Mass., 555.

Wenham v. State, Nebraska, 1902, 91 N. W., 421.

Willcutt & Sons Co. v. Bricklayers’ Union, Massachusetts, 1908, 85 N. E., 897.

Willner v. Silverman, Maryland, 1909, 71 Atl., 962.

Worthington v. Waring, Massachusetts, 1892, 32 N. E., 744.

Chapter I

To the thoughtful observer of the relations between em¬ ployers and their employees, the conclusion is inevitable that American courts are taking a more and more active part in labor disputes. The number of cases carried into court for settlement is constantly growing, the variety and complexity of the questions raised for adjudication is be¬ coming ever greater, and the importance of the interests in¬ volved is steadily increasing.

* Until the end of the first Quarter of the nineteenth cen¬ tury a labor dispute was rarely carried to court. More¬ over, the few that were brought for adjudication were finally settled in the lower courts without appeaL Con¬ sequently, the outcome of these cases and the opinions of the judges who decided them excited little attention. Most of these cases arose under the law against conspir¬ acies,' and may now be studied in the recently-published Documentary History of American Industrial Society.

* The second and third quarters of the century were some¬ what richer in litigation between employers and employees, but even in this period the custom of appealing such cases had not been formed, and consequently the progress of the law was slow. It was only in the last quarter of the century that labor cases became really numerous. Since about 1875 the growth has been rapid. The difficulty in study¬ ing the opinions for this last period arises not from the dearth but from the wealth of the material. The perfected system of reporting- brings into print the entire output of our whole court system, federal and state, and makes the study one to which but few can devote the necessary time.

At the present time, neither employer nor employee hesi¬ tates to appeal to the courts when he thinks it will be to his advantage. To each of the parties the court becomes a means of furthering its ends. It is probably not over¬ stating the truth to say that while the appeals are made in the name of justice, they are in fact made in the hope of gaining an advantage without particular regard to jus-'- tice. It will at once appear that the court is, as a result, placed in an exceedingly delicate position. Where two parties are seeking its aid for their own advantage, one of them is sure to be dissatisfied with the outcome. Each possesses its own peculiar political influence, and each is disposed to use that influence in its own cause. But the real importance of the court does not lie primarily in this phase of the situation. The court must stand between the parties and reduce the contest to a basis of justice, but it must also prevent the struggle from becoming one peculiar to the special interests involved and must keep it upon the broad and even level of all social conflict. Society cannot stand by and allow the struggle to become a specialized one. It can not permit the “ rules of war ” to become effective. This task of regulation must be assigned to the courts, and the courts must accomplish it in accordance with their own established methods of procedure. How are they succeed¬ ing in this difficult task? Is any progress evident? If so, along what lines and with what degree of speed ? No cate¬ gorical answers to these questions can be given. The many independent state courts of last resort do not agree. The numerous federal courts present the same situation, and the cases that have been carried up to the federal supreme court are comparatively few in number. This confusion is recognized by the courts themselves, as is shown by a few citations from their opinions :

Many other illustrations might be given, but the foregoing suffice to show the confusion among different courts. (State ex rel. Zillmer v . Kreutzberg.)

We are not inclined to follow the reasoning of the court in that case, although it is well considered and ably presented. (State v. Buchanan.)

The case is well considered and ably presented, but is, we think, borne down by the weight of authority and sound reason. (State v. Muller.)

While we entertain a profound respect for the courts of our sister states, we do not feel called upon to yield our conviction of right to a blind adherence to precedent ; especially when they are, in our opinion, opposed to principle ; and the reason¬ ing by which they are endeavored to be supported is by no means satisfactory or convincing. (Ex parte Newman.)

In In re Morgan it is contended by the learned judge . . . that the conclusion reached in Commonwealth v. Hamilton Mfg. Co. is in conflict with the later case by the same court in Commonwealth v. Perry. A careful analysis of the Perry Case makes it clearly apparent that there is no such conflict. It neither refers to, nor in any manner criticizes, the correct¬ ness of the conclusions reached in the Hamilton Case. (State v. Cantwell.)

The student desires a clear statement of underlying prin¬ ciples, but this the opinions never afford, or only as obiter dicta — the views of the writer of the opinion — having a more or less indirect bearing upon the case at bar. As one judge expresses it, the court is not

called upon to lay down general rules by which labor organiza¬ tions should be governed in their relations to the business in¬ terests of the country and to society. We are to deal alone with the facts presented in this particular case, and the principles of the law by which they shall be governed. (Jordahl v. Hay da.)

The lawyer insists that such utterances of general prin¬ ciples or discussions of principles, unless they have a very direct bearing on the case at bar, have no weight. Doubt¬ less as law they have none; and recognition of this fact is important to one who seeks to sustain his contention before a court by citing legal authority. The obiter dicta, how¬ ever, are of great importance for the light they throw upon the development of principles. A suggestion made by one judge, entirely aside, it may be, from the main issue, has its influence upon another judge, who reads the opinion. The obiter may be accepted by him and woven into the fabric of his argument on another case, or it may be noticed only for purposes of refutation. So by degrees it works its way into the general field of discussion and, possibly quite unconsciously, becomes a part of the mental attitude of judges toward similar cases as they arise. At last it may receive recognition as an accepted legal principle. It is because of the possibility of such development that obiter dicta are of consequence. Viewed in this light the ani¬ madversions of judges on social, political or economic topics take on a peculiar interest. For this reason they have been inserted in the extracts in addition to the more generally accepted rules of law.

Decided cases are, in some sense, evidence of what the law is. We say in some sense, because it is not so much the de¬ cision as it is the reasoning upon which the decision is based, which makes it authority, and requires it to be respected. (Bryan v. Berry.)

But obiters have a value, for they show the drift of the judicial mind, and indicate what the decisions will be when certain questions get fairly before the courts. (Cogley, The Law of Strikes, Lockouts, and Labor Organizations, p. 229.)

1 1

When read in this light, the decisions reveal a most in¬ teresting variety in points of view, in lines of argument, and in the emphasis assigned to particular considerations. In the midst of such variety there is slowly developing, however, a uniformity of underlying principle, and it is this line of development that is of utmost importance. No concise statement can yet be made of these deep-seated, farreaching principles, for their formulation is not yet per¬ fected. That the principles are being developed, however, through which fundamental ideas of justice may be applied to the ever new and ever more complex conditions of in¬ dustrial life, no one who studies the opinions will deny. This process will be of increasing importance, for the prin¬ ciples so evolved must prevail ; they can be set aside only by a revolution of our form of government and society. These basic principles, newly stated, sum up the political, eco¬ nomic and social philosophy of the past and apply it to the present. Upon the courts then we must rely for the slow but finally satisfactory solution of many of the difficulties involved in our industrial strife.

The following study of the opinions in labor cases reveals three facts of tremendous importance :

(1) The judges of our courts have been too greatly in¬ fluenced by precedents set in decisions applicable to con¬ ditions that have passed away.

(2) There is clearly discernible a tendency on the part of many influential judges distributed rather widely among state courts of final appeal and the federal courts to give more attention to actual present conditions.

(3) The law is being adapted to these new conditions by reading new meaning into the phrases of the constitutions, thus making formal constitutional amendments unnecessary.

The second and third tendencies afford ground for con¬ gratulation, and it is to be hoped that they may become even more pronounced, stopping only just short of the point that would endanger our fundamental institutions.

The study further shows, ( i ) that there are some exceed¬ ingly delicate problems involved in these controversies;

, and (2) that beyond all question a very encouraging degree of progress has been made toward their settlement. That courts so frequently settle particular difficulties in a peace¬ able way before the conditions have become so acute as to cause serious trouble; or even that they so frequently step in and assume authority after serious trouble has begun — these are not the acts that entitle them to greatest respect. Such work is certainly not to be ignored in any casting up of their credits. But far ahead of this in real importance is the steady progress that has been made in the develop¬ ment of principles and of recognized rules of law. These rules and principles will guide in the decision of future cases. They will also become generally known and recog¬ nized as valid among the leaders in the community, thus obviating the necessity of so many appeals to the courts in the future.

A reading of early cases and comparison of them with later ones indicate the substantial progress that has already * 1 been made. Organizations of laborers are no longer in * themselves conspiracies, looked upon with suspicion and condemned almost without a hearing. As has been said in a recent decision: “ We do not find it necessary to enter upon a discussion of the right of labor to organize for mutual benefit and self-protection. All sane-thinking per¬ sons concede this right.” (Jordahl v. Hayda.)

This gain it is difficult to appreciate. Even the members of labor organizations themselves sometimes fail to realize it, so intent are they upon developing their plans for the future. In addition to the full recognition of the right to organize there are running through the decisions statements that would grow wearisome in the frequent repetition were it not for their fundamental importance. Such state¬ ments give expression to the idea of equality in an almost infinite variety of form. “ Equality of capitalist and laborer before the law;” “ The law recognizes neither the capitalist nor the laborer but the man;” “ Every one is entitled to the equal and impartial protection of the law.” Such expres¬ sions and many others of like import may be found in abundance. Some persons may be pessimistic enough to say that they are mere high-sounding phrases, beautiful to hear but empty of meaning, as a very little observation of practical life will show. Even admitting the truth of the statement, there still remains great consolation in the existence of such statements merely as the expression of ideals. But one does not have to admit the charge. While the ideal has not yet been realized in all its fullness, cer¬ tainly some very -real progress has been made. The prac¬ tical point gained, then, is the recognition of the right of the laborer to do as any other man would do, to act always as a citizen, whether in pursuit of his interest as a laborer or of any other special interest.

At this point the difficulty increases by the very fact of progress made. Granted the right to organize and to act with others in organization, the question then arises, What may be done by the organizations? Here one enters the field of union activity in its great variety and becomes aware of the infinite complexity of its problems.

Here it is that propositions that seem simple to start with become involved in confusion and disagreement at the end. The courts, always guided by precedent where precedent can be found, search for it here in vain. New situations must be met, and in the absence of precedents the course adopted is to seize upon older principles and revise them to meet the new conditions. This has been a slow process, as courts have been reluctant to pass upon any principle further than its application to the particular case at bar. Success has certainly attended their efforts though it has come at times with exasperating slowness. Yet a difficulty has re¬ mained that seems as yet not to have been met very satis¬ factorily. The courts have been modifying and restating the principles of individual rights to meet the case of the aggressive unionist, the striker, the boycotter and the picketer. During this time capital has been concentrated under the control of the corporation and the corporation has loomed up as the rival of the employee, in place of his former rival, the individual employer. Corporation law has had its development in a more uninterrupted way until the corporation, a powerful aggregation in fact, comes to the bar as a “ person ” claiming all the rights of persons and opposes its strength to that of the laborer as a person but a physical person only. The various methods by which the several courts have met this difficult situation are dis¬ cussed in Part II.

Efforts to cut the Gordian knot by legislation have pre¬ sented new questions to the courts. Laws must be consti¬ tutional. The application of the constitutionality test has filled many pages of court reports. vFor a restless, active people, who look upon their government as their own, it is easy to regard legislation as the most effective means of remedying undesirable situations. When the laborers are worsted in a contest for shorter hours, or the more regular payment of wages, or when the community becomes im¬ pressed with the evil conditions that surround the laboring classes, the most direct and effective way of settling the matter satisfactorily seems to be to enact legislation? But experience has shown that it is much easier to convince the legislature that a measure is necessary than to convince the courts that it is constitutional. Here again the ancient and time-honored principles formulated by the “ fathers ” are brought forward as the standard for testing the new legislation. “ Life, liberty and property ” are to be pro¬ tected, as required by the constitution, and no one is to be deprived of any one of them except by “ due process of law.” The development of the property concept is extended to include right to contract, right to labor, right to business profits. These and other “ rights ” have become “ property rights,” and thus are protected as constitutional. At this point the court faces a difficulty of importance. From a legal and constitutional point of view it is of great con¬ sequence that consistency be preserved between the general provisions of the fundamental law and the various enact¬ ments of the legislatures. To the community at large, the importance of such a matter seems insignificant in face of the crying need for reform presented by some of our in¬ dustrial conditions. Thus arises a conflict between two forces. The legislature seeks to secure the laws at the ex¬ pense, if necessary, of consistency; while the courts often insist that consistency be preserved at the expense, if nec¬ essary, of needed legislation.

Of course very much legislation of this character has been enacted and has been sustained by the courts. The laws that usually come under the general term “ factory legislation,” and deal with sanitation, safety devices, child labor, and other similar topics are admittedly constitutional. Such statutes are not often attacked in court. When they are, it is usually on a technicality and the decision does not discuss the principle involved. The police power is given a constantly-widening significance and admittedly covers such legislation when the health, safety or welfare of the public is concerned. The issue arises at the margin where the health, safety or welfare of the public merges into that of the individual. The difficulty of drawing this marginal j6 • AMERICAN COURTS IN LABOR CASES