a logging railroad, was indicted for employing a workman more than ten hours. The company filed a demurrer to the indictment, which was sustained by Judge Weathersby of the Circuit Court of Lamar County. From this the state appealed, and on November 18 the Supreme Court of Mississippi handed down an extended opinion answering the objections to the statute and overruling the demurrer.

Not content with this decision, the lumber company applied for a second hearing of the case and upon the reargument the court again affirmed its original decision.

"It is well known," says the court, "that, in the work connected with the running of machinery, the operator is subjected to a mental as well as a physical strain. In many cases the nearness to machinery makes the work dangerous in case of an overtaxing of the strength of the worker, or any lessening in his alertness. We can readily understand that all this was in the minds of the Legislature when the law now under discussion was considered.

"Besides, it would be unreasonable for the Legislature to decide that it would promote the health, peace, morals and general welfare of all laborers engaged in the work of manufacturing or repairing if they were not permitted to extend their labor over ten hours a day, and the Legislature could also decide that the best interests of the people in the state would be promoted by limiting the time of work of this numerous class of its citizenry to the time mentioned. In fact, when we consider the present manner of laboring, the use of machinery, the appliances, requiring intelligence and skill, and the general present day manner of life, which tends to nervousness, it seems to us quite reasonable, and in no way improper, to pass such law so limiting a day's labor."

Again upon the reargument, the court said, in its second opinion:

"The concentration of the human mind and muscle, for many consecutive hours upon the watching and manipulation of rapidly moving machinery, tends to weary the body of the worker, and to weaken his reasoning faculties, and, ultimately, to permanently impair his physical and mental efficiency. Yet, competition forced the laborer to take the risk or starve."

The urgent question now arises whether the ultimate authority, the Supreme Court of the United States, will sanction the advanced stand of the Mississippi Supreme Court and thus open the way for legislation in other states.

Counsel for the lumber company cited the decision in the Lochner case as the controlling precedent for holding invalid the Mississippi tenhour law. The court replied: "A careful consideration of that case fails to show us that it should control the case before us." Long extracts are given from the dissenting opinions of Justices Harlan and Holmes in the Lochner case. "It will be noticed," said the court, "that the decision in Lochner vs. New York was not unanimous, four of the distinguished members of the bench .. dissenting."

May 24. 1913

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The opinion in the Lochner case has indeed been one of the most influential and most widely discussed of labor decisions. It has practically determined the course of legislation in many states, putting a quietus on any general laws to limit the hours of labor for men. In Missouri for instance, a law was enacted only three years ago limiting the employment of men in bakeries to six days in the week. The day's work was left wholly unlimited, yet the Supreme Court of Missouri threw out the law as unconstitutional on the ground of the Lochner decision.'

On the other hand, one of the most interesting adverse comments on this important decision was recently written by a justice of the Supreme Court of New York, Kings County. This was Justice Blackmar who discussed the history of Lochner vs. New York at some length. said:

He

"This is the famous bake-shop case. It holds that the state of New York cannot limit the hours of employes in bakeries to ten hours a day without infringing the liberty of the individual to contract for his labor, guaranteed by the Fourteenth Amendment. The case is exceedingly interesting. It arose in the County Court of Oneida County in this state and progressed through the Appellate Division of the Supreme Court, the Court of Appeals and the United States Supreme Court. Twenty-two judges participated in the several decisions. The only unanimous decision was by the County Court, where there was but one judge. In the Appellate Division, the justices divided three to two: in the Court of Appeals, four to three; and in the United States Supreme Court, five to four. There were nine separate opinions written. Of the twenty-two judges, twelve were of the opinion that the law was constitutional, and ten that it was not. The opinion of the minority prevailed because five of the ten judges who thought the law unconstitutional were members of the court of last resort.

"What does this remarkable divergence of opinion suggest? I do not find in the nine opinions any reason for thinking that there were any differences as to the rules of law governing the case. The power of the state to enact laws for the welfare of the people, notwithstanding the constitutional guarantee of the liberty of the individual, was not questioned. The difficulty was in determining whether the law in question was in furtherance of public welfare. The courts were approaching a question of political economy. So Judge Edward T. Bartlett of the Court of Appeals speaks of 'a coming day when the Legislature, in the full panoply of paternalism, etc.' Justice Peckham of the United States Supreme Court says: 'Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individuals'; and Justice Holmes says: 'This case is decided upon an economic theory which a large part of the country does not entertain'; and again 'But a constitution State rs. Miksicek, 125 S. W. Rep. 507. People ex rel. Hoelderlin vs. Kane, 79 Misc.

is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.'

"The fact that economic theories entertained by the judges influence their decisions as to the limits of the police power should not be excluded from the mind while studying the subject. Neither can such decisions be regarded as landmarks permanently defining such limits. Laws, which may be meddlesome interferences with the liberty of the individual in a primitive state, may, in a highly organized society, become essential to public welfare or even to the continuance of civil liberty itself. The pace at which courts move in sympathy with fast developing economic ideas may be illustrated by Lochner vs. New York, the hesitating utterance of di

vided courts in 1905, followed by Muller vs. Oregon, the confident pronouncement of a united bench in 1908."

Eight years have now elapsed since the bakers' case was decided. In the interval the precedent of the Lochner decision has effectively discouraged any attempts to obtain relief by law from the twelve-hour day still prevalent in many industries for men, especially in those continuously operated.

Now the Supreme Court of Mississippi reopens the question and invites a new answer. Two more years will probably intervene before the validity of the Mississippi law will come before the Supreme Court of the United States, and the question of limiting men's hours of labor by law will again, after a lapse of ten years, be presented to the highest tribunal of the land.

In truly American fashion the new spirit in labor law enforcement has taken hold of us. The one provision of the reorganization principles' which was least expected to become law at an early date in this country (and indeed the last provision to be urged for immediate adoption considering the nature of the existing machinery for enforcement) is the first one to be enacted this year.

This principle permits boards or commissions for labor law enforcement to adjust within statutory limits, hours of labor for women in especially dangerous trades. This power has been given to the recently created Minimum Wage Commission of Oregon, which was authorized to begin work early in April. It is made unlawful to employ women or minors for unreasonably long hours or under such surroundings or conditions-sanitary or otherwise-as may be detrimental to their health or morals. The commission is empowered to make investigations and establish standards for hours and conditions of work. The maximum hours must never exceed the legal maximum established by statutory law. Wisconsin also is hoping to adopt the same principle this year. A bill now before the Legislature provides that "no female shall be employed or be permitted to work in any place of employment in excess of such period or periods of time during any day, night or week as shall be dangerous or prejudicial to the life, health, safety or welfare of such female. It shall be the duty of the Industrial Commission vestigate, ascertain, determine and fix such reasonable classification and to issue general or special orders fixing a period or periods of time or hours of beginning or ending work during any day, night or week, which shall be necessary to protect the life, health, safety or welfare of any female, or to carry out the purposes" of the statutory law.

'See THE SURVEY for December 21, 1912.

to in

Missouri now requires an eight-hour day for all employes in silica mining, plate-glass manufacturing or smelting. This measure, together with the 1912 ten-hour law for men in manufacturing industries in Mississippi, recently sus tained by the Supreme Court of that state,' mark a new era in this country, in legislation limiting the hours of labor for men outside the mining industry.

Rapid progress has been made this year in the important field of factory inspection reorganization. A carefully prepared and thorough measure has been signed by the governor of Ohio. This new law provides for a commission of three members at an annual salary of $5,000 each with broad powers in making rules and regulations. Its jurisdiction covers the health, safety and welfare of practically all employes, the settlement of trade disputes and the management of unemployment agencies both public and private, including the placing of minors, care of vagrants and insurance for unemployment. The commission will also administer the insurance law for industrial injuries. Procedure in case of prosecutions is carefully worked out.

Governor Sulzer has signed the New York reorganization bills, all of which were thoroughly discussed in THE SURVEY of February 22. The plan proposed in Pennsylvania follows the New York law closely. These two measures are practically the only ones proposed or enacted which give the boards no voice in staff appointments nor in the administration of department affairs.

In California the bill prepared with great care by the Industrial Accident Board of that state gives the board power to make rules and regulations for safety in industrial establishments, and amends the existing workmen's compensation law, making compensation compulsory,

'See The Inalienable Right to Rest, page 264 of this issue.

creating a state insurance fund and also permitting mutual and self insurance. The bill is opposed by the employers and by the accident insurance companies.

Two or three reorganization measures were introduced in Iowa, but failed to pass. The present Bureau of Labor Statistics continues with the addition of a woman inspector. Last year Massachusetts succeeded in bringing together under the Board of Labor and Industries all the work of factory inspection in the state; and at the same time the Industrial Accident Board began work. This year a measure is pending which provides for co-operation between both boards so that each will enforce the same standards. In Connecticut proposals for reorganization have been made which follow the Massachusetts law of 1912.

New departments of labor were created in Arkansas and Wyoming, and existing bureaus were greatly strengthened by increases in the

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scope, number of inspectors and appropriations in California, Michigan, Tennessee, Texas, Utah and Kansas. In the three latter states women inspectors are provided for, and in Minnesota all employes of the Bureau of Labor are placed under civil service. A commission is proposed in Illinois which will study the existing bureaus with a view to consolidating those having similar functions. Bills to increase the inspection staff are still pending in several states, but in Missouri, where frequent attempts have been made to secure state-wide inspection, the measure was again defeated this year.

In most states the existing labor law is being administered by from three to eight or ten different departments. The result is overlapping and duplication both of work and expense. The consolidation proposed by the different states is intended to secure greater economy and efficiency in labor law enforcement; and in some states its aim is also to eliminate political control.

In spite of the adverse vote of the stockholders of the United States Steel Corporation at their annual meeting on April 21,' the movement for an abandonment of the twelve-hour, two-shift system in the continuous industries, in favor of the eight-hour, three-shift plan is steadily gathering headway. Every discussion of the subject gives it a new impetus. The country is growing more and more aroused as it comes to understand what the twelve-hour day in a continuous industry means. Two state legislatures have recently passed bills requiring one day of rest in seven. Similar bills are up for passage in other states and a bill is now pending in the Illinois Legislature providing for an eight-hour day in the hot metal industries.

Just at this juncture the United States Bureau of Labor contributes one of the most illuminating reports that has yet been made on working conditions in any industry. The third volume of the study of Employment in the Steel Industry is devoted to Working Conditions and the Relations of Employers and Employes. The facts as to hours of labor are set forth and discussed in detail.

When the first volume of this series was published in 1910, it was reported that over 29 per cent. of the employes of iron and steel companies were working seven days a week. Since that time, a six-day week has been installed in many plants. Volume III, just published, which gives data for 1912, reports that the proportion of seven-day workers has been reduced to 15 per cent. More than 50 per cent. of the blast furnace workers of the country still have a sevenday week, however, with a "long turn," twice a month. Moreover, the report states that 63

'See THE SURVEY FOR MAY 3, 1913, page 165. Senate Document 110, 62nd Congress, 1st Session.

per cent. of all steel employes still work twelve hours a day as was reported in the first volume.

The report shows that the twelve-hour day is frequently extended by overtime. In a study of nine large plants, having altogether 38,000 employes, it was found that overtime and Sunday work prevailed in about the same proportion as was shown to exist at Bethlehem at the time of the strike in that plant early in 1910. The report made then excited wide comment, and drew from Charles M. Schwab the protest that his plant was conducted just as all others are, a statement that now receives support.

A considerable amount of overtime was found that extended to incredible lengths. A twentyfour-hour turn is common, of course, in changing from the day to the night shift. The agents of the bureau found cases of thirty-six and fortyeight hours of continuous duty.

The most interesting and important part of the discussion of the hours of labor is the section devoted to a consideration of the cost of substituting an eight-hour for the twelve-hour day. A change from two shifts to three would in most cases call for an increase of 50 per cent. in the working force affected. Hence it is often assumed that the cost of labor per unit of output will be increased in the same proportion and that the selling price will have to be advanced in pretty nearly the same proportion if the manufacturer is to be saved from bankruptcy.

This line of reasoning overlooks two facts: first, since only about 63 per cent. of all employes now work twelve hours, a change to eight hours would not require an increase of 50 per cent. of the whole force; and second, a circumstance frequently disregarded, labor is only one of many costs of production. Even if it were increased by 50 per cent. no equivalent increase in total

cost would follow. The report shows what proportion the cost of labor is of the total, and finds that if the change were made to eight-hour shifts, with unchanged wages for a day's work the cost of making pig iron would be increased by but 2.6 per cent. The increase in the cost of the principal steel products, it is said, would be 6 per

cent.

But this estimate of the heavier cost is on the basis of an increase of 50 per cent. in the hourly rate of wages. The government agents questioned the workmen directly on this point. Most of those interviewed said they would be willing to make the change to the shorter day on the basis of ten hours' wages instead of twelve. This would be an increase of 25 per cent. instead of 50 per cent. in the rate per hour. The resulting increase in costs would in that case be 1.3 per cent. and 3 per cent. respectively.

The discussion of the length of the working day, while one of the most interesting topics considered is by no means the only subject treated in this report. Closely connected with the problem of overtime is that of irregularity of employment. "The iron and steel industry," says the report, "is more irregular in its operation, and shows greater fluctuations in its labor force during the course of the year than any of the large manufacturing industries whose demand is not seasonal."

Even in the prosperous year 1910, the average employe did not have a chance to work more than forty-five weeks. As a result 44 per cent. of the employes covered in the investigation did not get as much as $600 a year. But one-sixth earned as much as $900, and only about 1.5 per cent. earned $1,800 or over.

Το

The connection between wages and the cost of living is carefully considered. The statement is made that while retail prices of food increased 32.8 per cent. in the decade from 1901 to 1910 the hourly wages of unskilled laborers increased only 171⁄2 per cent. The unskilled, the report says, have received a larger advance in wages than any other class of labor. quote the report: "A careful study of the wages paid in a number of important plants in 1900 and 1910, shows that not only was there in 1910 a smaller proportion of workmen paid the higher rates of wages, but in some cases the pay for the same work was actually less in 1910 than in 1900. Tonnage rates were in many cases very greatly reduced, but the rate of production by 1910 was generally sufficiently increased to give the employes higher daily earnings than in 1900. Some readjustment of wages to bring higher and lower paid employes more nearly to an equitable basis was perhaps necessary, but the fact nevertheless remains that the food-purchasing power of the wages of 1910 was considerably less than that of the wages paid in 1900."

Among the other points covered by the report are the relation of wages to profits and costs, working conditions and efficiency as affected by heat, speed and the severity of the work, low wages, long hours and night work. Many special features of the conditions of employment are treated, such as time and method of wage pay

ments, company houses and company stores, and various efforts of the companies looking to the improvement of conditions.

The report points out that there have been great advances in the art of steel making, and that almost without exception, every advance "has improved the physical conditions under which the men work." Conversely, it discovered that "every successful attempt to improve the physical conditions. . has resulted in in

creased efficiency of the workmen." As a rule. these advances have been made from commercial motives. As to the elimination of accidents, however, while that great movement which has been in progress to a marked degree in the last half dozen years has stimulated production and proven itself commercially desirable, it did not begin, the report states, from that point of view, but "approached the principle from the humanitarian standpoint."

COMPENSATION IN ONTARIO

Sir William Ralph Meredith, chief justice. will submit to the Ontario Legislature "An act to provide for compensation to workmen for injuries sustained and industrial diseases contracted in the course of their empolyment." This act aims to use those features of the German system which are thought to be applicable to conditions in Ontario. In other respects it deals with the proposition in much the same way as it is handled by a number of states, such as Massachusetts and Michigan.

The administration is to be in the hands of a workmen's compensation board of three members appointed by the lieutenant-governor in council. Each commissioner serves during good behavior for a period of ten years. The board is authorized to decide whether any industry, employment or business shall be included within the state accident insurance fund, or whether in case of injury the employer shall be individually liable to the injured workman. If an industry is not included in the state fund the board may compel the employer to insure in some approved

company.

The board is to arrange the various employments into classes (presumably according to their hazard) and to levy assessments upon the members of each group for the payment of losses, administration expenses and the accumulation of a reserve fund. The reserve must equal the present value of future payments which will become due in future years on accidents that have occurred. In this respect it differs from the German system, which is upon the current cost basis. This means that a constantly increasing contribution from German employers will be necessary for thirty or forty years. Under the proposed Ontario system, the premiums are expected to remain approximately level.

The scale of compensation has not been decided, nor has the "waiting" period during which no disability payments are made. These and other details of the bill will be arranged at future conferences. Compensation for disability, however, if payable is to be computed

from the date of the accident. Burial expenses, and graduated-benefits, depending upon the number of participants and the degree of dependency, are payable to relatives of the deceased work

man.

An unusual feature of the bill is the application of the act to industrial diseases. The proposed provision is as follows:

"Where a workman suffers from an industrial disease and is thereby disabled from earning full wages at the work at which he was employed, or his death is caused by an industrial disease and the disease is due to the nature of any employment in which he was engaged at any time within twelve months previous to the date of his disablement, whether under one or more employments, the workman or his dependents shall be entitled to compensation as if the disease were a personal injury by accident and the disablement were the happening of the accident, subject to the modifications hereinafter mentioned, unless at the time of entering into the employment he had wilfully and falsely represented himself in writing as not having previously suffered from the disease."

The act is meeting opposition from the Canadian Manufacturers' Association, whose attorney throughout the hearing insisted upon the adoption of the current cost system and the elimination of any individual liability upon the part of the employer.

EARNING VACATIONS

JOTTINGS

A new scheme for promoting punctuality that is working to the advantage of both the employer and the employe has been discovered by the German-American Button Company of Rochester, N. Y. As a reward for perfect attendance for twenty-five consecutive weeks, a week's vacation with pay is offered. The company reports that the plan has been received favorably, and that many have already won their vacations.

The Gisholt Machine Co. of Madison, Wis., has had a similar arrangement in operation for some time. As a reward for punctual attendance this concern also offers a week's vacation, but under conditions that require a constantly perfect record if a vacation is to be enjoyed each year. Neither company appears to recognize sickness or any other unavoidable absence as sufficiently excusable to prevent its marring the record.

BETTER VENTILATION-LESS ABSENCE

In an Indiana factory, where for years they had trouble every summer from absences due to minor illnesses, the manager came to the conclusion that the water, which was far from good, was partly if not wholly to blame. So last summer he supplied his men lemonade to drink, and in it he put a substance, such as ginger, which

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is cooling to the blood. "The good results were almost immediately apparent in a steadier attendance," says a recent issue of Factory.

"But the cases of minor ailments and percentage of accidents, still remained entirely too high, in the opinion of the manager, so he investigated further. He went around in different portions of the plant and himself tested the ventilating conditions. They were far from satisfactory. So he enlisted the services of a ventilating expert, who made an exhaustive investigation and report, as a result of which a complete system of mechanical ventilation was installed. The effect of this change was speedily apparent in the reduction of the percentage of absences to a reasonable figure."

PROTECTING NEW YORK CHILDREN

The two child labor bills recommended by the New York Factory Investigating Commission and the newsboys' bill introduced by Senator Boylan at the request of the New York Child Labor Committee, the National Child Labor Committee and other organizations were passed by the New York Legislature on the very eve of adjournment. Canneries and cannery sheds are included in the terms of the child labor law from which they have hitherto been exempt. Tenement home work is more strictly regulated than ever before and the manufacture in tenements of articles of food, dolls or dolls' clothing and articles of children's or infants' wearing apparel is absolutely prohibited. The newsboys' bill raises the age limit of boys in street trades from ten to twelve years and sets eight in the evening instead of ten at night as the hour after which street trading is prohibited to the licensed boys over twelve years of age. The law is extended to third class cities and provides that a child who violates it may be adjudged guilty of juvenile delinquency.

THE MOVEMENT FOR SAFETY

Under the caption Three Years of Accident Prevention the Iron Age reviews the experience of the Eastman Kodak Company in its efforts to promote safety in its plants. "The experience" says the writer, "is a strong justification of the works' committee of safety. The work

has been progressive with more and better devices installed year by year."

The number of accidents each year for the years 1910 to 1912 was 412, 309 and 341 respectively. There has been in this time a steady increase in number of employes, and the real situation is best shown in the accident rate per thousand. This was 109.72 in 1910, 71.67 in 1911 and 61.13 in 1912.

The Inland Steel Company of Indiana Harbor, Ind., has begun the publication of a monthly safety bulletin. Like the more pretentious safety bulletins issued by the United States Steel Corporation and the Illinois Steel Company it is full of practical safety suggestions, based on experience. The bulletins published by the two latter companies are well illustrated.