in 1905.29 A ten-hour day for women was sustained in Oregon in 1906;30 but a law forbidding the night labor of women was declared unconstitutional in New York in 1907.81 In the following year, however, the decision in the Oregon case was affirmed by the Federal Supreme Court.82 A ten-hour day law is now before the Illinois Supreme Court. The decisions stand eleven to five in favor of regulation, in the United States Supreme Court two to one; with regard to women the proportion is six to two; with regard to men, five to three. It is moreover proper to advert to some facts which bear upon the adverse decisions. In Nebraska the unfavorable ruling is offset by a later one that is favorable. The decision

in Colorado was followed by a constitutional amendment which would leave a new law subject only to the Federal Constitution, which has been construed in favor of it. The decision on the night work of women in New York was dictated by submission to the supposed doctrine of the United States Supreme Court, the decision of that court in the case from Oregon not having then been rendered. And with reference to the first case from Illinois, it might be deemed advisable to suspend judgment until the pending case shall be decided. Under these circumstances there might be some temptation to make light of the decisions adverse to the legislative power. In view of the position taken by the Federal Supreme Court with reference to the bakers' ten-hour law, this would be obviously a mistake. And it is to be noted particularly that there is not one among the decisions which have sustained this legislation that does not clearly intimate that if the legislature should overstep certain Lochner v. New York 198 U. S. 45.

not very clearly defined limits in this form of legislation, the courts would be bound to afford relief.

It is this general adhesion to the principle of limitation and control which is significant. Its recognition implies a fundamental difference between the European and our conception of legislative power. In all civilized countries the legislature acknowledges itself bound to the observance of certain fundamental principles of individual right, and although without judicial sanction, these principles are on the whole scrupulously and inviolably respected. But these principles are not supposed to include the acceptance of any theory of economic liberty. However firmly economic principles may be adhered to, they are still regarded as matters of policy and not of right, and hence within the acknowledged control of the legislature.

There is no evidence whatever to indicate that, until within a relatively recent period, our general constitutional theory of legislative power was different, except that, through the exercise of a power nowhere conferred in express terms, the judicial sanction which had been lacking in Europe had to come to be supplied.

Where fundamental rights were sought to be asserted against the exercise of general legislative power, they were invariably associated with the impairment of the obligation of contracts, which implied a vested right. The standard treatises on constitutional law contained no suggestion that the due process clauses could be relied upon to build up new limitations, and when Mr. Justice Field in his dissenting opinion in Munn v. Illinois contended for a limitation of the legislative power upon this basis, he was in a position to cite any authority in support of his view.

It was, therefore, an innovation upon established con

stitutional doctrine when the labor decisions recognized traditional immunities from public control as positive and primary constitutional rights in the face of which legislation would have to justify itself before the courts by showing some affirmative ground of interference.

The supposed advance or gain consisted in extending the protection previously accorded only to the vested right of property, to a merely potential right, the capacity to earn, to use one's faculties for individual advancement-on the face of it a principle of strong democratic implication. This implication was further emphasized by using the phrase that labor was property. The general formula, however, under which the doctrine was proclaimed was that of freedom of contract.

The terms used were calculated to convey the impression that the rights involved were those of the workman as well as of the employer. This is not entirely without plausibility as far as hours of labor are concerned ;38 with reference to the wage payment acts it is an obvious fallacy, unless the liberty to compete for employment upon unfavorable terms be regarded as a valuable right.

Payment at frequent intervals or redemption of store orders in cash is a pure benefit, and in having the right to this benefit made inalienable, the workman surrenders absolutely nothing except through the remote contingency that the obligations which the law imposes upon the employer, may deter him from entering the business or drive him into insolvency, and that consequently the opportunity to earn a living may be diminished. Where an arrangement operates necessarily to the detriment of one party of the contract, its prohibition cannot in any just

"That even organized labor may have an interest in not having hours of labor reduced by law, is shown by the opposition of strong sections of English coal miners to the introduction of the eighthour law. See Ashley, Adjustment of Wages, p. 80-82.

sense be denounced as an infringement upon his liberty. Under such circumstances to proclaim a freedom of contract is a misleading phrase which obscures the real issue involved in this legislation.

The only real right at issue in the wage payment acts is that of the employer, the right of the owner of a business to direct its internal arangements according to his own discretion.

Let us remember that a century after the beginning of factory legislation, American courts questioned whether the police power was properly exercised where there was no danger except to employees who voluntarily incurred it,34 that the same idea is still potent in the law of liability, that the State even now does not undertake to regulate purely domestic arrangements, although those exposed to the consequences of mismanagement and neglect do not enter voluntarily and are not free to escape, and that as a matter of history the law of employment has grown out of that of domestic control, and we may understand something of the spirit that says: The gates are mine to open as the gates are mine to close, and I set my house in order.

There can of course today be no reasonable doubt of the right of the State to legislate under the old established heads of the police power, for the protection of the em

"Re Morgan 26 Col. 415. "How can an alleged law that purports to be the result of an exercise of the police power, be such in reality, when it has for its only object, not the protection of others or the public health, safety, morals or general welfare, but the welfare of him whose act is prohibited, when, if committed, it will injure him who commits it and him only?"

In re Jacobs 98 N. Y. 98, "To justify this law it would not be sufficient that the use of tobacco may be injurious to some persons or that its manipulation may be injurious to those who are engaged in its preparation and manufacture." Quoted with approval in Ritchie v. People 155 Ill. 98.

ployees of the business as well as of the general public, and these would include not only safety, health, morals and decency, but also the protection against fraud, and certain forms of oppression and exploitation which the history of legislation has treated as equivalent to fraud. If it were possible to establish that the various forms of statutes relating to the payment of wages were aimed merely at the suppression of fraudulent or unconscionable practices, they would clearly fall within the principle of the traditional exercise of the police power and the case would be plain. With reference to truck legislation, this view was strongly and ably presssed in a dissenting opinion delivered in the first Missouri case, and the antiquity of this legislation which reaches back to the middle of the fifteenth century indicates the existence of widespread and old grievances in this matter. There is also considerable evidence tending to show that the coal weighing acts were occasioned by the prevalence of methods which were at least capable of being abused to the prejudice of the mine workers. From this point of view it would be quite impossible to support the denunciation of this legislation, so far as its general principle is concerned, upon any consistent theory.

Without very much fuller data than seem to be available concerning conditions in different industries and localities, it is difficult to pass final judgment on the character and effect of the practices which the statutes sought to abolish. 35 With reference to the requirement of the weekly or bi-weekly payment of wages especially it must be observed that the customary practice of longer intervals of payment not only could not in any proper

35

There is some testimony as to conditions in the Colorado mining industry in the Report of the Industrial Commission, vol. 12, LXVLXXII; as to Illinois, see the Report of Bureau of Labor Statistics 1890, Appendix.