E. E. CLARK, EDITOR.

C. D. KELLOGG, AssoCIATE.

On the 17th day of April the United States Supreme Court, or a majority of five against four of the nine justices composing it, declared the New York law making ten hours a day's work unconstitutional. It should be understood that the New York Legislature passed the law and the case just passed upon by the United States Supreme Court was appealed from the decision of the New York Appellate Court. The opinion of the United States Supreme Court dealt entirely with the constitutional question involved. Justice Peckham who delivered the opinion, said that the law is not an act merely fixing the number of hours which shall constitute a legal day's work but an absolute prohibition on the employer permitting under any circumstances more than ten hours work to be done in his establishment, and he continued: "The employé may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting an employé to earn it. It necessarily interferes with the right of contract between employer and em

ployes, concerning the number of hours in which the latter may labor in the bakery of the employer.

"The general rights to make a contract in relation to his business is part of the liberty of the individual protected by the fourteenth amendment to the federal constitution. Under that provision no state can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right."

The justice referred to exceptions coming under the head of police powers of the state and after considering that point at length concluded the present case did not fall within police power.

"The question whether this act is valid as a labor law pure and simple may," he said, "be dismissed in a few words. There is no reasonable ground for interfering with the liberty of persons or the right of free contract by determining the hours of labor in the occupation of a baker. The bakers

are in no sense wards of the state. Viewed in the light of purely labor law with no reference whatever to the question of health we think that a law like the one before us involves neither the safety, morals nor welfare of the public and that the interest of the public is not in the slighest degree affected by such an act.

"It is a question of which of two powers or rights shall prevail, the power of state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates to public health does not necessarily render the enactment valid. The act must have more direct relation to a means to an end and the end itself must be appropriate and legitimate before an act can be held to be valid which interferes with the general right of an individual to be free in his person and his power to contract in relation to his own labor.

"We think that the limit of police power has never been reached and passed in this case.

"It seems to us that the real object and purpose was simply to regulate the hours of labor between the master and his employes, all being men sui juris in a private business, not dangerous in any degree to the morals or in any real and substantial degree to the health of the employes. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment and in defining the same, cannot be prohibited or interferred with without violating

federal constitution."

Justices Holmes and Harlan both delivered dissenting opinions and Justices White and Day concurred in Justice Harlan's views. In effect Justice Harlan held that all things considered ten hours work each day from week to week may endanger the health and shorten the lives of workmen, and that "the health and safety of the people of a state are primarily for the state to guard and protect and is not a matter ordinarily of concern to the national government.

Quite noticeable is this case is the fact that the Appellate Court of New York sustained the verdict of the lower court by a majority of one, which majority also obtained in the reversal of the Appellate Court by the Supreme Court. Certainly the opponents of the law have no particular reason to crow over their adversaries, but nevertheless there is no doubt but what the natural inclination of the American people will have its way and the law will be obeyed. It will be observed that Justice Peckham makes the decision hinge on which one of two rights is paramount, the right of the state to legislate, or the right of the individual to liberty of person and freedom of contract. This seems to bear out the constitutional declaration that all powers of the government are derived from the consent

of the governed. In other words it makes the right of the individual a fundamental basic principle of the Republic on which all rights of partners, firms and coporations must necessarily depend. It does seem as if recent decisions of courts have not been founded upon this basic principle as they have decided in some cases that contracts between corporations and labor organizations have been in "restraint of trade" and therefore not valid.

The decision of the federal Supreme Court of New York bakeries case, involving the validity of the statute passed some years ago making it illegal for an employer to require or permit an employé to work more than sixty hours a week or ten hours a day in any bakery,is declared by Justice Harlan in his dissenting opinion to be the most important rendered by that tribunal in a century. While this interesting dictum will challenge general attention, it does not imply, necessarily, that the decision is theoretically a severe blow at the doctrine of the police power of the state-the doctrine upon which the New York legislature and the Court of Appeals relied in passing and sustaining the act.

Undoubtedly the decision is farreaching and momentous, but in what sense?

The statute is annulled by the Supreme Court on the ground that it "involves

neither the safety, the morals, nor the welfare of the public, and that, consequently the police power of the state does not warrant the particular striction of free contract attempted by the legislature.

Harlan's words:

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The New York Court of Appeals and the four dissenting justices of the Supreme Court believe that the inference was 'defensible and proper. In Justice There are many reasons, based on the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day from week to week in a bakery or confectionery establishment may endanger the health, impair the usefulness and shorten the lives of the workmen.”

These quotations show that the question which the court passed upon was one of fact rather than of doctrine or principle. Contract and property rights, it is admitted, may be restricted in the interest of public health, order and morals, but the majority declares in effect, that the judiciary, not the legislature, must finally determine whether a given

We have no disposition to criticise the many authorities which hold that state statutes restricting the hours of labor are unconstitutional. * *The question in each case is whether the legislature passed that statute in exercise of a reasonable discretion or whether its action be a mere excuse for an unjust discrimination or the oppression of a particular class.

In the New York bakeries case we infer, then, the majority of the court saw, not an exercise of a reasonable discretion but a mere excuse for an unjust discrimination, notwithstanding the contrary view of the highest tribunal of the

state.

Before the adjournment of the 58th Congress, the House Committee on Labor, having the eight-hour bill to dispose of, voted to refer it to the Department of Commerce and Labor, requesting answers to seven questions. This action was generally regarded as a bluff or a way to dodge action on the bill. Both capital and labor had given the committee all the evidence that was needed for its information during previous sessions of Congress, so that further delay on the plea of requiring more information was a palpable dodgefair excuse for those who wished to pose before their constituents as champions of either labor or capital.

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Following are the seven questions which the Commissioner was requested

to answer:

1. What would be the additional cost to the United States of the various materials and articles which it customarily procures by contract, which would be governed by the limitations set out in the said bill? 2. What damage, if any,

would be done to the manufacturing interests affected by the provisions of the bill if enacted?

3. Whether manufacturers who have heretofore furnished materials and articles to the government under contract would continue to contract with the government, if such contracts were within the peremptory eight-hour limitation provided by the said bill?

4. What would be the effect of the enactment of the said bill upon the shipbuilding industry?

5. What effect would it have on any export trade?

6. Are the laborers of the country, organized and unorganized, who would be affected by the proposed legislation willing to have taken away from them the right to labor more than eight hours per day, if they desire to do so?

7. What effect will this proposed legislation have, if any, upon the agricultural interests of the country?

A report upon this bill, along the lines indicated, is respectfully requested at the commencement of the next session of Congress.

The Secretary of the Department of Commerce and Labor has complied with the request for answers to the above

questions, and as was to be expected, little light is shed on the solution of the problem, and the House Committee on Labor will not find very much help or consolation in this report. The questions were submitted to several contractors who would be affected by a general eight-hour law, and while they would not give direct answers, the concensus of opinion prevailed that the amount to be paid for labor and of the cost of everything covered by the bill would be increased.

Objection to the bill also arose from the fact that some contractors who bid for government work would come in direct contact with other shops that worked longer hours, unless the others shops would consent to put their shops on an eight-hour basis. Probably, however, the real objection to the bill, the one they are all fighting shy of, is that were the eight-hour bill to become a law, would it pave the way for a general eight-hour day? and it seems the world of business has not advanced far enough yet to be willing to allow those who depend on their daily toil for their living the chance for recreation and the study of those soul-inspiring works of nature which separate man from other living

heretofore furnished materials and articles to the government under contract would continue the contract with the government if such contracts were within the peremptory eight-hour limitation provided by said bill?

Answer. A legal eight-hour limitation on government contracts would, to a considerable extent debar facturers from submitting tenders.

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4. What would the effect of the enactment of the said bill be upon the shipbuilding industry?

Answer. Where shipbuilders were performing government contracts, if wages remain the same, it would add approximately 20 per cent. to costs and delay progress considerably.

5. What would be the effect of the bill, if any, upon the export trade of the country?

Answer. Assuming that such legislation would entail ultimately a general eight-hour workday, it would affect exports to whatever extent our manufacturers come in real and close competition with goods manufactured in other countries having longer work days and lower wages.

6. Are the laborers of the country, organized and unorganized, who would be affected by the proposed legislation, willing to have taken away from them the right to labor more than eight hours per day if they desire to do so?

Answer. I believe that all honest, intelligent, and industrious mechanics would perfer to work under conditions established by necessity and circumstances of trade.

In general, I believe it better policy that government manufacturing should follow and conform to custom developed and established by necessity and circumstances of general industry. Legislation establishing arbitrary limits will necessarily cause and foster strife in attempts to conform to conditions which may be for economic reasons practically impossible in many industries.

In commenting on the above the Editor of the Railroad Trainmen's Journal notes that:

At present there are two battleships building, one by the government, at the United States Navy Yard, Brooklyn, New York, and the other at the yards of the Newport News Ship Building Company at Newport News, Va. The two battleships are exactly alike and the work will be a contest between the eight-hour day, and the ten-hour day. Thus far the government employes at Brooklyn have a slight advantage over their ten-hour-aday competitors and the completion of the two battleships ought to go a long way in furnishing incontestable evi

dence of the value of each system.

The report furnishes the information that the reduction of the ten-hour day to a nine-hour day was not felt to any serious degree by the employers. They claimed the men lost about an hour each day of ten hours in getting ready for work and getting ready to go home. Working at nine hours, they are ready to commence on time and they work until it is time to quit; they also work better, therefore there is little difference, if any, in the results.

To offset the demand for further reduc-* tion in hours, many of the employers say that further reduction of working time must mean further reduction of product, for at the present time machinery is running at its highest speed and that it is impossible for it to do more. This leads to the decision that any reduction in working time means a corresponding percentage of reduced product.

Of course the ethical side of the eighthour day is left out of the discussion entirely. One might infer that neither the legislators nor the government cared a rap whether either the moral, or physical condition of the laborers was elevated or depressed. No note is taken of the fact that ten hour's hard labor by humanity in every twentyfour for a life time, is not apt to elevate the intellectual or ethical growth of a nation. If the production of dollars is, or is to be, the chief aim of our people, then it might probably be well to lengthen the hours of toil, and history will therefore the sooner be able to record as a cause of our failure as a nation, that

we lived out harmony with right ideals.

Objection is sometimes made to the eight hour day because if once established then the laborer might claim that a seven or six hour day, or even less, would be a logical demand, but we hardly think danger of such a demand would be probable, because there is a natural limit to human exertion-limits within which the exertion of muscular, as well as brain, action, can do its best work, and if these limits are much overstepped a penalty must be paid. We are aware of course that the amount of work which can reasonably be performed by different persons varies greatly and it is expedient to guard against under as well as over exertion. Then too there is work that is restful and entertaining in itself and in which longer hours are not burdensome, but such work and that in which no joy abounds should not be subjected to the same restrictions.

welfare and contentment of their employes. It is not too much to say that the railways are in the front rank of employers in this regard. I am not one of those who are unable to see anything good in what the employer does or wants. Human nature is human nature, however, and whether or not it be the impelling motive there is a strong motive of self interest in or behind every