work hardship. Instances of excessive hours found under these circumstances do not bear out this idea.3

At the same time that the laws have been made more inclusive there has been a tendency to do away with permitted overtime. The chief classes of overtime exemptions still found in the statutes allow the working of a limited amount to make up time lost by the stoppage of machinery, to provide against emergencies endangering life. or property in such occupations as the telephone and telegraph service, and to get a half-holiday on one day of the week by lengthening the other days' work. Occasionally, instead of removing all restrictions on hours from the Christmas rush in stores and from the canning business a stated amount of overtime is allowed. In order to prevent their abuse it has proved necessary to draft all overtime exemptions with great care. At the best they make enforcement of the law more difficult and from the standpoint of social welfare it is fortunate that they are being abandoned.

Another feature of American hour legislation is the provision for meal-times. A number of states require that an hour or forty-five minutes' time should be given for a "mid-day meal." This form of statute, however, does not prevent women from being worked continuously in rush times for an excessively long period. More effective, therefore, is the type of law found in such important industrial states as Massachusetts, New Jersey, and Pennsylvania which requires a pause of given length, from thirty minutes to an hour, after five or six hours' work.

A maximum hour law may, however, measure up to approved standards in length of work-period allowed, number of industries covered, and other points, and yet fail to protect women workers because it cannot be enforced. Little considered details in wording may in some cases vitally affect the usefulness of a statute. From 1867 to 1911 an eight-hour law for working women was on the statute books of Wisconsin. But during all those years the act was a dead letter because only employers who "compelled" women to work excessive hours could be prosecuted, and in any particular case it was difficult to prove that overtime was not "voluntary." The

* Connecticut Bureau of Labor, report on The Conditions of Wage-Earning Women and Girls, 1914, pp. 53 and 73; Iowa Bureau of Labor Statistics, Sixteenth Biennial Report, 1914, pp. 122-183.

women's ten-hour law now in force in that state, though allowing a longer work day, affords more real protection because it stipulates that no woman "shall be employed or permitted to work" beyond the legal period. Clauses such as that in the early Wisconsin statute still nullify a few laws, for instance, those of North and South Dakota. Placing a penalty only on "willful" violations had a somewhat similar effect.

The detection of violations of hour laws presents an especially difficult problem. Unsafe and insanitary conditions can be detected by a single visit, but continued observations would ordinarily be needed to discover the length of working hours. As a substitute, "posting notices" or the keeping of "record books" is required by the best statutes. The notices must be posted in the work room and must state the exact hours of beginning and ending work for all female employees. Generally employment for "longer" than the posted hours is a violation of the law, but a few of the newer laws, as in Pennsylvania, penalize employment at any other times than those posted, which makes violations still easier of detection. Within the last few years several states in addition to or as a substitute for notices have required employers to keep record books giving the hours of each female employed. In omitting to fix a legal closing hour, however, most American states have neglected one of the most useful aids to enforcement..

In final analysis, however, the effectiveness of hour legislation depends, like other forms of factory legislation, on the efficiency of the administrative authorities. A few states will follow the early practise of depending on individual complaints for the enforcement of the law and not creating an inspection department. This method of procedure has been found to be entirely ineffective. Even when an inspection department exists the force may be entirely inadequate, with but one or two persons to cover several thousand establishments, or the inspectors may be incompetent or indifferent. Morever, active inspectors often fail to receive proper support from judges in the prosecution of offenders. Penalties for violation are generally fines ranging from $20 to $500 with the alternative of imprisonment for a limited period, but the latter is seldom, if ever, inflicted, and flagrant offenders are often released on suspended sentence.

Recent application of the industrial commission idea to limitation

of women's hours has opened the way for securing not only better enforcement but also more scientific regulation. Under the industrial commission plan the general standards desired are defined by the legislature but it is left to a commission to work out, in close cooperation with employers, employees and experts, the detailed rules which put the standards into effect. The law establishing the Oregon Industrial Welfare Commission provides that the commission may after investigation fix "reasonable" hours of work for women. The principle is somewhat akin to the European method of modifying the general law by administrative orders, which may set hours longer or shorter than the general statute, according to the dangers or the special needs of the industry. Thus in the canton of Berne, Switzerland, girls cannot be employed on treadle machines for more than three consecutive hours.

The standards for hours worked out by an industrial commission are likely to be easier of enforcement because they are better known to employers and employees and because they represent to some extent their own ideas of reasonable regulation, agreed upon in a series of conferences, instead of being imposed from above.

The regulations worked out by the Oregon Industrial Welfare Commission are perhaps the best present illustration of the superior flexibility and ease of enforcement of the method which recognizes points of special strain as well as the legitimate demand of industry. For example, although the statute law sets a maximum limit of ten hours daily and sixty hours weekly for mercantile establishments, in Portland, where work is likely to be most taxing yet can most easily be concentrated into a short time and where the work is probably the farthest from home, daily hours in mercantile establishments are limited by the commission to eight and one-third and the closing hour is set at 6 P. M. In other parts of the state nine hours of work and an 8:30 P. M. closing hour are allowed.

The constitutionality of legislative limitations on the daily hours of women's work has now been definitely established on the basis of the police power of the state.

In the first important decision on this question a Massachusetts court, as early as 1876, upheld a law prohibiting women from working in factories more than ten hours a day or sixty hours a week.*

4Commonwealth v. Hamilton Mfg. Co., 125 Mass. 383.

The court held, "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 powers. This principle has been so frequently recognized in this commonwealth that reference to the decisions is unnecessary." As to the question of whether the law violated the right of the worker to labor as long as she might see fit the decision is less satisfactory, for it merely says that "the law does not limit her right to labor as many hours per day or per week as she may desire," but prohibits her from working continuously for more than the specified time at factory work.

Before the next important decision on hour limitations was handed down the doctrine of entire "freedom of contract" between employer and employee had been developed. This doctrine was reinforced by the idea that the free disposal of labor was a property right which was guaranteed by the fourteenth amendment to the federal constitution. Consequently in 1895 Illinois held that an eight-hour law for women in factories was an unconstitutional abridgement of the right of free contract. The act was declared to be "a purely arbitrary restriction upon the fundamental rights of the citizen to control his or her own time and faculties. 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." The court was unable to uphold the law as a justifiable use of the police power. Again quoting from the decision, "When a health law is challenged in the courts as unconstitutional on the ground that it arbitrarily interferes with personal liberty and private property without due process of law the courts must be able to see that it has at least in fact some relation to the public health and that the publice health is the end actually aimed at. This we have not been able to see in this law."

The doctrine that entire freedom of contract existed between employer and employee held sway in American jurisprudence until, in a decision dealing with the hours of men, the United States Supreme Court showed its fallacy in 1898. Because of the inequality of bargaining power between employer and employee, due Laid down in Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 345 (1886), and Millett v. People, 117 Ill. 294, 7 N. E. 631 (1886).

• Ritchie v. People, 115 Ill. 98, 40 N. E. 454 (1895).

Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 (1898).

to the stronger economic position of the former, this oft-quoted opinion recognized that "the proprietors lay down the rules and the laborers are practically constrained to obey them." Moreover the opinion holds that "This right of contract, however, is in itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers," powers which "may lawfully be resorted to for the purpose of preserving public health, safety, or morals, and a large discretion is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interest." The reasons why women need particular protection were brought out within the next few years by three decisions of state courts. These decisions emphasize the fact that women's weaker physique is more liable to harm from excessive hours of labor, and that, as the mothers of the race, women's health has a peculiar social importance. The opinion in the Washington case states the matter concisely. "It is a matter of universal knowledge with all reasonably intelligent people of the present age that continuous standing on the feet by women for a great many consecutive hours is deleterious to their health. It must logically follow that that which would deleteriously affect any great number of women who are the mothers of succeeding generations must necessarily affect the public welfare and the public morals."

8

The question of the limitation of women's working hours was finally passed upon by the federal Supreme Court in 1908. The influence exerted by opinions of this tribunal makes its decision upholding the Oregon ten-hour law one of great importance. The relation of such legislation to the health of women and of the community was clearly brought out. Says the court: "Her physical structure and a proper discharge of her maternal functions-having in view not merely her own health but the well-being of the race— justify legislation to protect her. . . The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also for the benefit of all." Besides the

8 Commonwealth v. Beatty, 15 Super. Ct. (Pa.) 5 (1900); Wenham v. State, 65 Neb. 394, 91 N. W. 421 (1902); State v. Buchanan, 29 Wash. 602, 70 Pac. 52 (1902).

• Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324 (1908).