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CHAPTER XIV.: POLICE REGULATION OF THE RELATION OF MASTER AND SERVANT. - 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. 2 
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. 2.
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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POLICE REGULATION OF THE RELATION OF MASTER AND SERVANT.
Terms “master and servant” defined.—
Although these terms were originally referable only to the case of menial or domestic servant, making one of the domestic relations, strictly so-called,1 they have been so extended in their application as now to be synonymous with employer and employee. A servant in the legal sense includes now, not only the menial servants of the household, but every class of persons, who for a compensation obligate themselves to render certain services to another. It may be true that in another age and under an earlier civilization, “the relation of master and servant presupposes two parties who stand on an unequal footing in their mutual dealings;”2 but that cannot be said of the relation at the present day, and under the American law. Certain employments denote and compel the recognition of social inferiority. But in the sight of the law the servant stands on a plane of equality with his master, and the constitution guarantees a like protection to the rights of both.
Relation purely voluntary.—
The relation of master and servant is purely voluntary, resting upon the contract of the parties, and as a general proposition it must ever remain voluntary. The relation ordinarily cannot rest upon compulsion. Every man has a natural right to hire his services to any one he pleases, or refrain from such hiring; and so, likewise, it is the right of every one to determine whose services he will hire. “It is a part of every man’s civil rights,” says Mr. Cooley,1 “that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with any one with whom he can make contracts; and if he is wrongfully deprived of this right by others, he is entitled to redress.” This natural right is not limited simply to the formation of the relation of master and servant. Each party has the right to stipulate the terms and conditions upon which he will enter into the relation and refuse to form it, if the other party declines to yield to his demands. Government, therefore, cannot exert any restraint upon the actions of the parties, nor interfere, except at the call of one of the parties, to enforce his rights under the contract which constitutes the basis of the relation. The law may establish certain presumptions of the intentions of the parties, where they have not expressly agreed otherwise; but the right to agree upon whatever terms they please cannot be in any way abridged, as long as there is no trespass upon the rights of third parties or of the public.
But apprenticeships constitute an exception to this general rule; the ground for the exception being the minority of the apprentice when he enters into service. His right to make a valid contract for apprenticeship constitutes a legal exception to his general disability, and is, therefore, subject to whatever regulations the State may see fit to impose. The immaturity of the apprentice places him on an unequal footing with his master, and he deserves and requires the protection of the law.
Regulation of private employment.—
But between adults, employer and employed, since all men are free and equal, and are entitled to the equal protection of the law, neither party can be compelled to enter into business relations with the other, except upon his own terms, voluntarily and free from any coercion whatsoever. The State has no right to interfere in a private employment and stipulate the terms upon which the services are to be rendered.
Ordinarily, this proposition will be readily conceded; particularly, if one considers the question in its bearings upon his own affairs. A feeling of indignation arises within us at the contemplation of State interference to determine the wages we shall pay to our domestic servants. But in so far as the question is removed from its relation to our own affairs, so that it becomes less and less influenced by our prejudice and self-interest, the contemplation of the social inequalities of life, and the truly heartless, if not iniquitous, oppression which is afforded by reason of these inequalities; when we see, more and more clearly each day, that the tendency of the present process of civilization is to concentrate social power into the hands of a few, who, unless restrained in some way, are able to dictate terms of employment to the masses, who must either accept them or remain idle; when at best they are barely enabled to provide for the more pressing wants of themselves and families, while their employers are, at least apparently, accumulating wealth to an enormous extent; when all this injustice exists, or seems to exist, the impulse of a generous nature is to call loudly for the intervention of the law to protect the poor wage-earner from the grasping cupidity of the employer.
That there is much suffering among the working classes there can be no doubt. And although there may be room for conjecture, whether the suffering is not largely due to their own improvidence and a desire to imitate the luxurious habits of the rich, rather than the oppression of the capitalists, it is certainly true that the employers occupy a vantage ground, by which they are enabled to appropriate to themselves a larger share of the profits of the enterprise. But he has acquired this superior position, this independence, through the exertions of his powers; he is above, and can to some extent dictate terms to, his employees, because his natural powers are greater, either intellectually or morally; and the profits, which naturally flow from this superiority, are but just rewards of his own endeavors. At any rate, no law can successfully cope with these natural forces.
But there is undoubtedly a certain amount of unrighteous oppression of the working classes. In making the contract of hiring, the employer and workman deal with each other at arm’s length. Generally speaking, so far at least as the settlement of the terms of hiring is concerned, their rights and interests are antagonistic. It is to the interest of the employer to get a given amount of work done for the lowest wages possible, and it is to the interest of the wage-carner to get the highest wages obtainable for the given amount of work. If the parties cannot agree upon the terms which will be mutually profitable, can the law determine this dispute for the contesting parties? By statute 30 and 31 Vict., ch. 105,1 “equitable councils of conciliation,” composed of delegates selected by the masters and workingmen, were empowered to adjust all such disputes, and determine the rate of wages to be paid to the workmen. As long as the submission of such disputes to such a council be left voluntary, the statute could meet with no constitutional objection, if it should be enacted in any of the American States. But its constitutionality would be very doubtful, if the submission was made compulsory. There is an irreconcilable inconsistency in seeking the protection of the law because of inequality in the possession of economic power, and yet proclaiming one’s equality before the law. As soon as the law places one for any just reason under a disability, or gives to another a privilege not enjoyed in common by all,1 protection from oppression becomes a duty of the State, so far as the disability or its cause, or the grant of the privilege, produces or renders the oppression possible. The law can only guarantee to men, on a legal plane of equality, protection against trespasses upon their rights. To place the working classes under special protection against the aggression of capital, beyond the careful and strict enforcement of their rights; to compel the employer to pay the rate of wages, determined by the State to be equitable, is to change the government from a government of freemen to a paternal government, or a despotism, which is the same thing.
But even if this reasoning should not be sufficient to prove the unconstitutionality of State interference in the relation of master and servant, the very futility of such interference would at least cast a doubt upon its constitutionality. Law can never create social forces. On the contrary, law is the resultant of the social forces. If the social forces at work at any given time produce an inequality in the material conditions of classes of society, and give rise to the oppression of one class by another; if the inferior class is not naturally strong enough to resist the oppression, when free from legal restraints, no law can afford it protection. For how can the workingman secure the enforcement of a law made for his protection, when the protection of the State is required, because his needs and the necessities of his family compel him to submit to the unrighteous exactions of the capitalist. Will not the same needs and necessities force him to place by his vote men in the various State offices, whose antipathy to his interests will make the law a dead letter, if not secure its repeal? In England, where suffrage is limited, such a law is somewhat reasonable, because those for whose benefit it was enacted are under legal disability. But, in this country, where suffrage is universal, and the wage-earners constitute a vast majority of the voters; if they are unable to assert their claims without the aid of law, they cannot do so with its aid. And thus their inefficacy confirms the unconstitutionality of laws, which are designed to protect the workman against the oppression of the employer. Laws, therefore, which are designed to regulate the terms of hiring in strictly private employments, are unconstitutional, because they operate as an interference with one’s natural liberty, in a case in which there is no trespass upon private right, and no threatening injury to the public. And this conclusion not only applies to laws regulating the rate of wages of private workmen, but also any other law, whose object is to regulate any of the terms of hiring, such as the number of hours of labor per day, which the employer may demand. There can be no constitutional interference by the State in the private relation of master and servant except for the purpose of preventing frauds and trespasses.
But when the employment is connected with a public interest; and, particularly, when it is connected with the enjoyment of a franchise or privilege, not enjoyed by private individuals,—a privilege which is granted because it will promote the public welfare, such as the railroad, the telegraph, the telephone, and the like,—the public is interested in the proper conduct of the business; and any disturbance of, or interference with, its regular and orderly prosecution will materially affect the public interest. Where the privilege is a monopoly, as is practically the case with the telegraph in the United States, a general disagreement of the employer with his operatives may often stop the wheels of industry and produce a general paralysis of all commercial energies; and although the operatives of the railroad or of the telegraph are no more entitled to the aid of the law in enforcing their demand, or in securing better terms from their employers, than the strictly private workman, any disagreement between the railroad and telegraph companies and their employees affects the public interest by interfering with their means of communication and transportation; and to promote the general welfare, not to aid the operatives, it is a legitimate exercise of the police power of the State to compel both parties to submit their claims to a competent tribunal; thus adjusting their differences, and preventing an injury to the public. There may be a practical inability to enforce even such a law, because of the powerful political influence of the capitalists; but it is nevertheless, justifiable, on constitutional grounds, because the legal equality is disturbed in these cases by the grant to the corporation of a franchise, a privilege not obtainable by the workman.1
See Schouler Dom. Rel. 599.
Schouler Dom. Rel. 599.
Cooley on Torts, p. 278.
See ante, §§ 96, 97.
Note.—The labor contract and the relation of employer and employee have been already fully discussed in Chapter IX. and the reader is referred to the sections of that chapter relating thereto for what otherwise he might expect to find in this chapter.