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become a legal fact. Therefore it neither can or need be taken account of by the legal mind. It does not exist de jure but de facto.

The "natural," conventional freedom of contract is sacred and inviolable. The de facto freedom of choice is a matter about which the law and the courts are not competent to enquire. By force of the concatenation of industrial processes and the dependence of men's comforts or subsistence upon the orderly working of these processes, the exercise of the rights of ownership in the interests of business may traverse the de facto necessities of a group or class; it may even traverse the needs of the community at large, for example, in the conceivable case of an advisedly instituted coal famine; but since the necessities or comforts of livelihood cannot be formulated in terms of the natural freedom of contract, they can, in the nature of the case, give rise to no cognizable grievance and find no legal remedy.

D. THE COURTS AND LABOR

332. Limitation of the Working Day for Women

a) The Supremacy of Freedom of Contract21

Does the provision in question restrict the right to contract? The words "no female shall be employed" import action on the part of two persons. There must be a person who does the act of employing and a person who consents to the act of being employed. The prohibition of the statute is two fold: first, that no manufacturer or proprietor of a workshop shall employ any female therein more than eight hours in one day; and, second, that no female shall consent to be so employed. It thus prohibits employer and employee from uniting their minds upon any longer service during one day than eight hours. They are prohibited, the one from contracting to employ, and the other from contracting to be employed, otherwise than as directed. Section 2 of Article 2 of the constitution of Illinois provides that "no person shall be deprived of life, liberty, or property without due process of law." The privilege of contracting is both a liberty and a property right. Liberty includes the right to acquire property, and that means the right to make and enforce contracts. The legislature has no right to deprive one class of persons of privileges allowed to other persons under like conditions. Women employed by manufacturers are forbidden to make

21 Ritchie v. People, 115 Ill. 08 (1893). This is an excerpt from the opinion of the state court declaring unconstitutional a law providing that "no female shall be employed in any factory or workshop more than eight hours in any one day, or forty-eight hours in any one week."

contracts to labor longer than eight hours in a day, while women employed as saleswomen, bookkeepers, stenographers, or other occupations are at liberty to contract for as many hours of labor a day as they choose. The manner in which this section discriminates against one class of employers and employees, and in favor of all others, places it in opposition to the constitutional guarantees hereinbefore discussed, and so renders it invalid.

But aside from its partial and discriminating character, this enactment is a purely arbitrary restriction upon the fundamental rights of the citizen to control his or her time and facilities. It substitutes the judgment of the legislature for the judgment of the employer and employee in a matter about which they are competent to agree with each other. Where the legislature thus undertakes to impose an unreasonable and unnecessary burden upon any one citizen or class of citizens it transcends the authority intrusted to it by the constitution.

b) The Supremacy of the Police Power22

The members of the legislature are elected from every portion of the state and come from every walk in life. They know from experience what laws are necessary to be enacted for the welfare of the communities in which they reside. They determined that the law in question was necessary for the public good, and the protection of the health and well-being of the women engaged in labor in the establishments mentioned in the act. That question was one exclusively within their power and jurisdiction. Women and children have always to a certain extent been wards of the state. Women in recent years have been partly emancipated from their common law disabilities. They now have a limited right of contract. They may own property in their own right, and engage in business on their own account. But they have no voice in the enactment of laws by which they are governed. 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. 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. On the question of the right of contract, we may well declare a law unconstitutional which abridges. the right of adult males to contract with each other. The employer

22 Wenham v. State, 65 Neb. 394 (1902). This is an excerpt from an opinion of the court declaring constitutional a law providing "that no female shall be employed in any manufacturing, mechanical, or mercantile establishment, hotel, or restaurant in this state more than sixty hours during any one week, and that ten hours shall constitute a day's labor."

and the laborer are practically on an equal footing, but this does not apply to women and children. Their field of remunerative labor is restricted. Competition for places therein is necessarily great. 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. If the act is the result of a fair, reasonable exercise of the police power of the state, it should be upheld. We are unable to find a case where the courts have laid down any rigid rule for the exercise of police power. There is little reason under our system of government, for placing a narrow interpretation on this power, or restricting its scope so as to hamper the legislature in dealing with new circumstances as they arise.

c) Maternity and State Regulation28

That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. By the abundant testimony of the medical fraternity continuance for a long time on her feet at work and repeating this from day to day tends to injurious effects upon the body; and as healthy mothers are essential to a vigorous offspring, the physical well-being of woman becomes an object of public interest, and care, in order to preserve the strength and vigor of the

race.

333. Reciprocal Nature of Employer's and Employee's Rights24

I.

1. The defendants acted within their right when they went out on a strike. Whether with good cause, or without any cause or reason, they had the right to quit work, and their reasons for quitting work were reasons they need not give to anyone. And that they all went out in a body, by agreement or preconcerted arrangement, does not militate against them or affect this case in any way.

2. Such rights are reciprocal, and the company had the right to discharge any or all of the defendants, with or without cause, and it cannot be inquired into as to what the cause was.

3. It is immaterial whether the defendants are not now in the service of the company because of a strike or a lockout.

4. The defendants have the right to combine and work together in whatsoever way they believe will increase their earnings, shorten

23Muller v. Oregon, 208 U. S. 412 (1907). It will be noted that this is from a decision of the United States Supreme Court.

"Adapted from the opinion of the court in Union Pacific Railway Co. v. Ruef, 120 Fed. 102 (1903).

their hours, lessen their labor, or better their condition, and it is for them, and them only, to say whether they will work by the day or by piecework. All such is part of their liberty. And they can so conclude as individuals, or as organizations, or as unions.

5. And the right is also reciprocal. The railroad company has the right to have its work done by the premium or piece system, without molestation or interference by defendants or others. This is liberty for the company, and the company alone has the right to determine as to that matter.

6. When the defendants went on a strike, or when put out on a lockout, their relations with the company were at an end: they were no longer employees of the company; and the places they once occupied in the shops were no longer their places, and never can be again, excepting by mutual agreement between the defendants and the company.

7. No one of the defendants can be compelled by any law, or by any order of any court, to work again for the company on any terms or under any conditions.

8. The company cannot be compelled to employ again any of the defendants, or any other persons, by any law, or by any order of any court, or on any terms, or on any conditions.

9. Each, all, and every of the foregoing matters between the company and the defendants are precisely the same, whether applied to the company or to the defendants.

10. The company has the right to employ others to take the places once filled by defendants; and in employing others the defendants are not to be consulted, and it is of no lawful concern to them, and they can make no lawful complaint by reason thereof. And it makes no difference whether such new employees are citizens of Omaha or of some other city or state.

II. Defendants have the right to argue or discuss with the new employees the question whether the new employees should work for the company. They have the right to persuade them if they can. But in presenting the matter, they have no right to use force or violence. They have no right to terrorize or intimidate the new employees. The new employees have the right to come and go as they please, without fear or molestation, and without being compelled to discuss this or any other question, and without being guarded or picketed, and persistent and continued and objectionable persuasion by numbers is of itself intimidating, and not allowable.

12. Picketing in proximity to the shops or elsewhere on the streets of the city, if in fact it annoys or intimidates the new employees, is not allowable. The streets are for public use, and the

new employee has the same right, neither more nor less, to go back and forth, freely and without molestation and without being harassed by so-called arguments, and without being picketed, as has a defendant or other person. In short, the rights of all parties are one and the same.

334. The Danbury Hatters' Case"

BY HARRY W. LAIDLER

In 1897 the United Hatters of North America began a national struggle for the closed shop. According to the Hatters' Journal, 16 firms were unionized as the result of the boycott within a period of 18 months. For eleven months a vigorous boycott was waged against Berg & Company of Orange, New Jersey, at the cost to the unions of $18,000. Berg's business was reduced from 2,400 to 500 dozen hats before he agreed to the closed shop. In April, 1901, Roelof & Company, of Philadelphia, were especially subjected to the attention of the unionists. It is estimated that the expenditure of $23,000 by the unionists caused Roelof a loss of some $250,000 during the boycotting period.

Then an effort was made to unionize the factory of D. E. Loewe & Company of Danbury, Connecticut. Unionists proposed a closed shop to Loewe, referring to the fate of other hatters who had withstood their demands. Loewe, however, refused to concede. On July 25, 1902, 250 employees were called out. The shipping clerk was employed by the union to discover the destination of the various assignments. He rode on the wagons, made observations in the streets and at the railway stations, and reported the results to the union. Customers' names were immediately sent to the unions in whose towns the goods were to be delivered, and unionists were requested to write to, or call upon, the dealers and to persuade them to cease their dealings. Five organizers were routed among unions and dealers in different parts of the country. Boycott advertisements appeared in the trade and labor journals, and descriptions --false according to the company-of labor conditions at Loewe's were sent broadcast.

The company claimed that this warfare was most effective; that, during 1901, the firm made a net profit of $27,000, which decreased into a $17,000 net loss in 1902, after the boycott began, and into one of $15,000 during 1903. In 1903 the company claimed the loss in gross business from 17 New York firms alone was $84,700, from

"Adapted from Boycotts and the Labor Struggle, 151-156, published by John Lane Co. (1914), and "The Supreme Court Decision in the Danbury Hatters' Case," in The Survey. XXXIII, 415-416. Copyright (1915).

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