CHAPTER XVII

HOURS OF LABOR-WOMEN

FOR more than thirty years the validity of legislative restrictions upon the employment of women has divided the minds of American jurists. Private rights, the sanctity of freedom of contract, equality before the law have stood over against sex differences, social well-being and the proper exercise of the police power. To express in abstract terms the relation between these points of view would not be a task of insuperable difficulty. To group special cases consistently under the one or the other has proven a task that our courts have not been able to perform with uniform satisfaction.

Many of the early cases that came before the state courts turned upon the employment of women as waitresses in saloons. In 1881, a California law forbidding women to work as waitresses in saloons was brought before the supreme court of that state. The court pronounced the law unconstitutional as being in violation of the rights of adult citizens of that state. In 1884, an ordinance of the city of Cleveland established the same restriction within the municipal limits. The supreme court of Ohio pronounced the ordinance valid, but on the special ground that the power to regulate the sale of liquors is expressly delegated to cities in that state.2

1 Case of Mary Maguire, 57 Cal., 604.

2 Bergman v. Cleveland, 39 Ohio, 651.

Although these are among the earlier cases, they are not the earliest; and other cases, because of their greater importance, have attracted more attention. The restriction of the hours of labor to be undertaken by women in manufacturing industries has been contested in several states. Here there are two clearly defined lines of argument, each one of which has been so ably developed that neither has yet been completely and finally driven from the field.

The earliest opinion, recognized as the leading one on the one side of the question, was written by Judge Lord of the supreme judicial court of Massachusetts in 1876. (Commonwealth v. Hamilton Mfg. Co.) The law under consideration was one limiting to ten hours a day the legal workday of minors under eighteen and of all women. The decision is a brief one. It does not assume that an elaborate argument is necessary. It rather takes the attitude that the burden of proof rests upon those who undertake to show that the law is unconstitutional. On behalf of the corporations it was asserted that the act of incorporation was a contract with the commonwealth, and that the law impaired that contract. This the court would not admit. A considerable portion of the opinion is taken up with a consideration of this question, concluding with the statement: "The law, therefore, violates no contract." Taking up other points, the court continues:

[The law] merely provides that in an employment, which the legislature has evidently deemed to some extent dangerous to health, no person shall be engaged in labor more than ten hours a day or sixty hours a week. There can be no doubt that such legislation may be maintained either as a health or police regulation, if it were necessary to resort to either of those sources for power. This principle has been so frequently recognized in this commonwealth that reference to the decisions is unnecessary.

It is also said that the law violates the right of Mary Shirley to labor in accordance with her own judgment as to the number of hours she shall work. The obvious and conclusive reply to this is, that the law does not limit her right to labor as many hours per day or per week as she may desire; it does not in terms forbid her laboring in any particular business or occupation as many hours per day or per week, as she may desire; it merely prohibits her being employed continuously in the same service more than a certain number of hours per day or week, which is so clearly within the power of the legislature, that it becomes unnecessary to inquire whether it is a matter of grievance of which this defendant has a right to complain.

The reasoning is not complete enough to satisfy one who would like to know the full mind of the court upon a question that has become of so great importance. The decision was written at a date when the principles involved had not yet come to be regarded as of much consequence. At the same time the case is one of more than usual importance, being cited in other cases as authority for similar legislation.

After the lapse of twenty-six years two similar cases came up for adjudication. In these the scene was shifted to the West. A law enacted by the Nebraska legislature came before the supreme court of that state in 1902, and in the same year a similar law was brought before the supreme court of the state of Washington. The two statutes were similar to that upheld in Massachusetts in that they limited the hours of women's labor to ten a day. The Nebraska law added a clause forbidding night work. In the decision of these cases the points in controversy were discussed at greater length than in the earlier case, and the opinions of the two courts incorporated the line of argument which of late has been more fully developed.

In the first of these cases (Wenham v. State) Judge

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Barnes, who wrote the opinion, refers to the importance of the relations existing between the departments of our government. 'Courts should never usurp legislative functions. . . . If, after a careful consideration of the question in all of its bearings, the matter [of constitutionality] is left in doubt, we should resolve such doubt in favor of the law, and declare it valid." The court admits that the plaintiff's business is property and that the ability of the working women is also property.

It must be conceded, however, that every property holder is secured in his title thereto and holds it under the implied rule and understanding that its use may be so regulated and restricted that it shall not be injurious to the equal enjoyment of others having the equal right to the enjoyment of their property, or to the rights of the community in which he lives. All property in this state is held subject to rules regulating the common good and the general welfare of our people.

The limitation upon such rights should of course be reasonable, but the reasonableness is to be determined by the legislature as a matter of expediency. This question the legislature is well fitted to answer.

The members of the legislature come from no particular class. They are elected from every portion of the state, and come from every avocation and from all the walks of life. They have observed the conditions with which they are surrounded, and know from experience what laws are necessary to be enacted for the welfare of the communities in which they reside.

Justification of the law is found in the fact that " women and children have always, to a certain extent, been wards of the state." While they may own property, yet they have no voice in the enactment of the laws. These considerations were evidently of importance to the court, but a consideration of greater weight follows.

[Women] are unable, by reason of their physical limitations, to endure the same hours of exhaustive labor as may be endured by adult males. Certain kinds of work which may be performed by men without injury to their health would wreck the constitutions and destroy the health of women, and render them incapable of bearing their share of the burdens of the family and the home. The state must be accorded the right to guard and protect women, as a class, against such a condition; and the law in question, to that extent, conserves the public health and welfare.

In the matter of freedom of contract, the opinion goes on to say:

We may well declare a law unconstitutional which interferes with or abridges the right of adult males to contract with each other in any of the business affairs or vocations of life. The employer and the laborer are practically on an equal footing, but these observations do not apply to women and children. Of the many vocations in this country, comparatively few are open to women. Their field of remunerative labor is restricted. Competition for places therein is necessarily great. The desire for place, and in many instances the necessity of obtaining employment, would subject them to hardships and exactions which they would not otherwise endure. The employer who seeks to obtain the most hours of labor for the least wages has such an advantage over them that the wisdom of the law, for their protection, cannot well be questioned. No doubt, these considerations were the moving cause for the passage of the law in question.

Judge Dunbar in his opinion in the second of these two cases (State v. Buchanan) goes more directly to the point, although in general the line of reasoning is much the same. He was the first to emphasize the particular physiological reasons for such legislation.

It is a matter of universal knowledge with all reasonably