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§ 102.: Regulating hours of labor.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Regulating hours of labor.—
The leaders of labor organizations have endeavored to secure better terms of employment by the enactment of laws, regulating the hours of labor. And the same constitutional questions arise in the consideration of these regulations as to hours of labor, as have arisen in connection with the statutory regulation of wages, and other terms of the contract of hiring. The same principles of constitutional law must determine their constitutionality. In almost every State there are regulations of this kind, varying in their scope, both as to persons and occupations, and it is believed that in no State has any law been passed which prohibits employees generally from working any one day beyond the statutory number of hours. Such a bill was proposed by the Legislature of Colorado; but it was before enactment declared to be unconstitutional by the Supreme Court, on the ground that it was in violation of the constitutional liberty of contract.3 In every other case of regulation of the hours of labor in private employment, the statute does not prohibit work for more than the statutory time, but requires, in case of being required to work longer, that extra compensation be paid; and in some cases, that the wages for the overtime be at a higher rate. So far as the legislature undertakes to say what shall be considered a day’s work, in the absence of an express or implied contract, there is no more interference with the liberty of contract, than where statutes provide what rates of interest shall be paid on notes and other monetary obligations, in the absence of an express agreement. But where the statute declares what hours of labor shall constitute a day’s work, and makes it obligatory that extra compensation shall be paid for overtime, whether it be the same or an increased rate of wage; the constitutional objection to the legislation, as being an infringement of the individual liberty of contract, is just as strong, as where the right to work for more than the prescribed time is denied altogether. Both employer and employee are prohibited from contracting for a longer day’s work for the current rate of wages.1
In those States, in which the statutes simply prescribe what shall constitute a day’s work, in the absence of an agreement otherwise, it is undoubtedly the right of the employee to demand extra wages for the overtime work, unless there has been an express or implied contract between the parties for a longer day’s work.2 But where the established custom in the particular trade or occupation is to work for a longer time per day than the statutory period, the employee is presumed to know of such usage and custom, and he cannot demand extra compensation for the overtime, in the absence of an express contract for the same.3 Some of the cases, however, hold in construing these statutes that no extra compensation can be demanded for overtime work, unless it has been stipulated for in the contract of hiring.4
Regulations of the hours of labor for women and children do not rest on the same principles altogether; and they are found in every State. In most cases, the regulations refer to work in factories and workshops. The same object is held in view in these regulations, as in regulations of hours of adult male labor, viz.: to prevent oppression by requiring excessive hours of labor, to the moral and physical injury of the laborer. But in regulations of this kind, relating to adult male labor, we are confronted by the constitutional declaration of the equality of all men, and the inalienable liberty of contract. It does seem very absurd, from the stand-point of individualism, which is the fundamental principle of the American public polity, and of which universal male suffrage is the public exponent, to enact laws to prohibit a man from contracting for more than a prescribed day’s work, and at the same time declare him to be the political equal of the employer. But children and women are not placed in this political dilemma. The right of participation in the government is denied to both; and, except so far as modern statutes have changed the common law in regard to married women, both have had their right to contract more or less restricted. The constitutional guaranty of the liberty of contract does not, therefore, necessarily cover their cases, and prevent such legislation for their protection. So far as such regulations control and limit the powers of minors to contract for labor, there has never been, and never can be any question as to their constitutionality.1 Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the State.2
The position of women is different. While women, married and single, have always been under restrictions as to the kinds of employment in which they might engage, and are still generally denied any voice in the government of the country, single women have always had an unrestricted liberty of contract, and the contractual power of married women was taken away from them on the ground of public policy, in order to unify the material interests as well as the personal relations of husband and wife. With the gradual breaking-down of these restrictions upon the right of married women to contract, there seems to be no escape from the conclusion that the constitutional guaranty of the liberty of contract applies to women, married or single, as well as to men. We are, therefore, not to be surprised to find the courts at variance, in deciding upon the constitutionality of laws, regulating the hours of labor for women. The Supreme Court of Massachusetts has held such laws to be constitutional, on the ground that women are still more or less under the tutelage of the State, and need the same protection of the State against the oppression of the employer, as do minors.1 On the other hand, the Supreme Court of Illinois holds such regulations to be an unconstitutional interference with the woman’s liberty of contract.2
While it would seem to be the settled judicial opinion that it is unconstitutional for the legislature to regulate the hours of labor by taking away all liberty of contract in the matter, where the object is merely the protection of the employee against the exaction of a disproportionate amount of work for the wages paid; the courts are disposed to hold otherwise, where the statutory regulation is intended to protect the safety of the public, or the health of the individual employee, from the dangers threatened by the excessive and exhaustive labor of the workman. Thus, in New York it has been held to be lawful, in the interest of the public, if not in that of the workman, for the legislature to prohibit railroads from permitting or requiring trainmen, who have worked twenty-four hours, to go on duty again until they have had eight hours rest. The same act also provided that ten hours work out of twelve consecutive hours shall be a day’s work, and that extra compensation shall be paid for the work done in excess of that prescribed time. The act was held to be constitutional; and the sections prescribing what shall be a day’s work, it was held, did not prohibit any additional work during the twenty-four hours.1 So, also, the Utah statute, which limited the hours of labor in all underground mines and smelting works, except in cases of emergency when life and property were in imminent danger, to eight hours per day, was held to be constitutional by the Utah courts, as well as by the Supreme Court of the United States; the latter taking the position that the State had a right to limit the hours of labor in all unwholesome employments.2
But if the danger to the health of the workman is a constitutional justification for such an interference with individual liberty of contract, in the case of particularly unwholesome employments; the same reason could be appealed to, only in a less degree, to justify the regulations of the hours of labor in all employments. For there is no other cause, equally common and general, of impaired health, broken-down constitutions and shortened lives, than excessive, and hence exhausting labor; it matters not whether the occupation is wholesome or unwholesome. The same collision between fact and theory, as to the legal equality of all men, again blocks the way to a rational regulation of the unequal relations of employer and employee.
Another common form of statutory regulation of the hours of labor, is the provision that workmen on public works shall not be required to work more than the prescribed number of hours per day. Where the regulation is applied to the employees of the city, county or State government, who are employed and paid directly by these respective governments, the constitutionality of the regulation can not be questioned; for the reason that these respective governments, in enforcing such a regulation, are only exercising the general right of a party to a contract to insist on a certain provision in the contract of hiring. And it would seem also to be rational to uphold the regulation as a constitutional exercise of authority, when it is applied to those laborers who are engaged on public works in the employ of contractors to whom the work has been let on contract, if the contract has been let after the enactment of the regulation. The requirement as to the hours of labor is properly considered as entering into and becoming a part of the contract between the government and the contractor. And this has been the conclusion of the New York Supreme Court in one case.1 In California and Ohio, a similar statute was held to be unconstitutional, as interfering with the liberty of contract.2 The United States courts have held a similar Federal regulation to be directory only, and not compulsory.3
In re Eight-Hour Law, 21 Colo. 29.
This is the conclusion of the court in Low v. Rees Printing Co., 41 Neb. 127; Wheeling Bridge & Term. Ry. Co. v. Gilmore, 8 Ohio C. C. 658. In the former case, as in many other cases, of labor legislation, the act was also declared to be constitutionally objectionable, because it was class legislation, in that it excluded from its operation those who were engaged in farm or domestic labor.
Bachelder v. Bickford, 62 Me. 526.
Luske v. Hotchkiss, 37 Conn. 219; Bartlett v. Street Ry. Co., 82 Mich. 658; Schnurr v. Savigny, 85 Mich. 144; Helphenstine v. Hartig, 5 Ind. App. 172; Grisell v. Noel Bros. Flour-Feed Co., 9 Ind. App. 251.
McCarthy v. Mayor of New York, 96 N. Y. 1; Luske v. Hotchkiss, 37 Conn. 219.
See People v. Ewer, 141 N. Y. 129.
See post, §§ 195, 196.
Commonwealth v. Hamilton Mfg. Co., 120 Mass. 383.
Ritchie v. People, 155 Ill. 101, the court, applying to regulations of the hours of women’s work, the following general principle: “Labor is property, and the laborer has the same right to sell his labor and to contract with reference thereto as has any other property owner. In this country the legislature has no power to prevent persons who are sui juris from making their contracts, nor can it interfere with the freedom of contract between the workman and the employer.”
People v. Phyfe, 136 N. Y. 554.
Holden v. Hardy, 14 Utah, 71 (46 P. 756); s. c. 169 U. S. 366. The Supreme Court did not undertake to pass upon the constitutionality of general regulations of the hours of labor, where the employment was not unwholesome.
People v. Warren, 77 Hun, 120. The force of this decision has, however, been somewhat diminished, on appeal to the Court of Appeals, by the decision of the latter court, holding that the regulation in question did not apply to the superintendent of the contractor company. People v. Beck, 144 N. Y. 225.
Ex parte Kubach, 85 Cal. 274: State v. Morton, 5 Ohio N. P. 183.
United States v. Martin, 94 U. S. 400. In United States v. Ollinger, 55 Fed. 959, the constitutionality of the regulation was not settled, the court holding that the regulation did not apply to the defendant.