importance attaching to this decision the method of defending the law was interesting. The comprehensive brief prepared by Louis Brandeis and Josephine Goldmark subordinated the legal aspects of the question but brought together a mass of material on the actual effects of excessive hours on the health of women workers. As a result of a similar brief and gradual change in public opinion, the Illinois Supreme Court was induced to modify its views. In 1910 that court handed down an opinion reversing its decision in the earlier Ritchie case and holding that the estalishment of a tenhour day for women was within the scope of the police power of the state.10 The judges in this case did not spin legal theories but faced the facts concerning the ill effects on the health of women of excessive hours. "What we know as men," they declared, "we cannot profess to be ignorant of as judges." 11 The constitutionality of the ten-hour workday for women was definitely established by these decisions. It remained for the United States Supreme Court in 1915 to pass favorably upon the further restriction of women's hours in its decision upholding the California eight-hour law. The opinion quotes at some length from the Oregon case, and then adds: "It is manifestly impossile to say that the mere fact that the statute of California provides for an eight hour day or a maximum of forty-eight hours a week, instead of ten hours a day or fifty-four hours a week, takes the case out of the dominion of legislative discretion. This is not to imply that a limitation of the hours of labor of women might not be pushed to a wholly indefensible extreme, but there is no ground for the conclusion here that the limit of the reasonable exertion of protective authority has been overstepped." In many of these cases the additional point was urged against the laws that they were class legislation, unreasonably differentiating between various classes of citizens who were promised by the constitution "the equal protection of the law," since they included certain occupations and failed to include certain others. However, even in the earlier Ritchie case, where an eight-hour limitation was declared unconstitutional, "the objection to the particular and discriminating 10 Ritchie v. Wayman, 244 Ill, 509, 91 N. E. 695 (1910). 11 Miller v. Wilson, 236 U. S. 373, 35 Sup. Ct. 342 (1915). character of the law is not the leading objection." 12 The California law was attacked because of its inclusion of student nurses but the objection was not sustained.13 The courts have generally given the legislature latitude in using discretion as to enlarging the scope of the laws 14 or classifying those groups most in need of protection.15 Thus the theoretical freedom of contract of the workers has been gradually circumscribed until it has been held constitutional for a legislature to limit women's working hours to eight a day. The latest phase of the problem is not an effort further to limit the number of working hours but rather to make possible a change in the agency upon whom it shall devolve to fix hours. With the growth of industrial welfare commissions in several states there has been a tendency to grant to these commissions authority to determine hours in various industries and to make reasonable classification of industries. Both in Oregon 16 and Wisconsin 17 state supreme courts have passed upon the granting of such powers to industrial welfare commissions. In the former case the decision holds that "The law does not delegate legislative power to the commission. It is authorized only to ascertain facts that will determine the localities, businesses, hours, and wages to which the law shall apply." A recent decision in Wisconsin reversed, after a rehearing, the earlier opinion of the court that such a law was invalid. The judges were of the opinion. that the statute might properly be construed as laying down the "general rule that women shall not be permitted to work in any place for such a period as shall be prejudicial to their health and authorizing the industrial commission" to ascertain what classes of employment are dangerous to the health of female employees "and to determine as a fact how long females may be engaged in the several classes reasonably." So recent is the application of this type of law to the regulation of industrial conditions that the question of its validity in this field 12 George G. Groat, Attitude of American Courts in Labor Disputes, p. 301. 15 Withey v. Bloem, 163 Mich. 419, 128 N. W. 913 (1910). has not yet come before the federal Supreme Court for authoritative decision. The main point at issue, namely, whether authorizing a commission to issue orders with the force of law is an unlawful "delegation of legislative power," has, however, been repeatedly decided in the negative by this court in the fields of public health and of railway rate regulation. Thus the court upheld a Texas statute granting to a railroad commission power to fix rates on the ground that such a commission was merely an administrative board to carry out the will of the state." 18 It seems reasonable to expect, therefore, that if the question comes up with reference to industrial commissions, the federal Supreme Court will sustain these commissions in the exercise of their statutory powers. Night Work "Next to child labor," declares the New York State Factory Investigating Commission, "night work of women is the greatest evil of modern industrial life." And the commission goes on to cite as the principal objections to such work the following: "Lack of sunlight; lack of normal sleep; no compensation in the restless, interrupted sleep of day for the sleeplessness of night; the abnormality of sleeping by day; abnormal change in daily life; the destruction of home life; impossibility of properly caring for home and children; lack of restraining influence; day work besides the arduous night tasks." The point is also made that night work is inferior to day work both in quality and quantity, and is therefore uneconomical. In hemp and jute mills, twine factories, candy factories, bookbinderies, canneries, and other establishments the commission found women engaged at work during the night, either on a separate night shift or else on overtime prolonged after a full day's work often till midnight or later. It was learned that married women thus engaged have on the average four and a half hour's sleep a day, the rest of their time being taken up with the preparation of meals, washing, caring for children, and other household tasks. Many snatched their sleep in beds still warm from use by their husbands who worked by day. Returning to their homes late at night or at dawn exposed these women to insult and attack. The breakdown. 18 Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047 (1894). of physical and nervous strength was obvious in their "drawn white faces and stooping gait." Similar conditions have been noted in other states where labor bureaus have investigated the matter, and working women have for the most part proved unable by their own action to correct them. Yet, beginning with Massachusetts in 1890, only eleven states have put any prohibition upon night work for women. Even where there is such legislation it fails to include all occupations in which the evil exists. In striking contrast to our inadequate provisions has been the comprehensive action of European countries. In 1906 a conference called by the International Association for Labor Legislation was held at Berne for the purpose of adopting a general agreement looking to the prohibition of night work for women. Representatives attended from fourteen European powers: Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Luxemburg, Portugal, Spain, Sweden, Switzerland, and the Netherlands. The evils of night work were clearly brought out and as a result of the international agreeent entered into at this conference practically all the powers had by January 1, 1912, enacted and put in force legislation to prohibit the industrial night work of females and to insure them a minimum of eleven consecutive hours for rest including the period between 10 P. M. and 5 A. M. Lack of favorable legislative action on night work prohibitions in this country may be in part attributed to the earlier unfavorable attitude of the New York Court of Appeals which in 1907 held such legislation to be an undue interference with the right of free contract, an unjustifiable extension of the police power, and unfair discrimination against females.19 "I find nothing in the language of this section," says the court, "which suggests the purpose of promoting health except as it might be inferred that for a woman to work during the forbidden hours of night would be unhealthful," which seemed to the judge to be insufficient justification for the statute. In the effort to preserve for women their entire freedom of contract no account is taken of sex differences as a justification for special protection to women. In 1915, however, the court 19 People v. Williams, 189 N. Y. 131, 91 N. E. 778 (1907). LEGAL LIMITATION OF WORKING HOURS FOR WOMEN IN THE UNITED STATES The following states have no laws regulating the working hours of women in any industry: Florida, Iowa, Nevada, New Mexico, West Virginia. Alabama, VI NIGHT WORK PROHIBITED2 1 A few states, such as Rhode Island, seek to prevent excessive hours in night work, which may be held to fall on two successive days, by making the daily limit apply to "any twenty-four consecutive hours. A few other states, such as Arizona and Wyoming, provide that the permitted daily hours must fall within a specified period, usually, twelve hours. 2 Sometimes in women's hour laws, but more frequently in connection with child labor legislation, night work is forbidden to girls under 18 or 21, when there is no similar restriction for boys of the same ages. States having such regulations include Arizona, Arkansas, District of Columbia, Hawaii, Indiana, Louisiana, Massachusetts, Michigan, Mississippi, New Hampshire, New York, Ohio, Oklahoma, Oregon, and Pennsylvania. These prohibitions are not tabulated here, for like the laws which fix shorter limits for daily working hours for girls than for boys of the same age, they properly come under the head of child labor legislation. |