the labor contract and the wage bargain. The two may be diametrically opposed. From the standpoint of the wage bargain, if an employer's right to require a woman to work unlimited hours is reduced, then the woman's duty is consequently reduced and her rights enlarged. But, from the standpoint of the labor contract, she loses the right to contract for unlimited hours. This may be a mere fictitious right for her, existing only in the eyes of the law, whereas it is in reality the right of the employer to compel her to work. From the legal standpoint her rights are abridged-from the economic standpoint they are enlarged. Likewise, from the legal standpoint the employer's duty is reduced when her hours of service are reduced. From the economic standpoint his duty may be increased, if her bargaining power is increased. It is this contradiction between the labor contract and the wage bargain that labor legislation attempts to reconcile.1

The state exercises the great and sovereign power of enlarging and abridging rights and duties without consent of the parties. This power is intended, under our constitutions, to be safeguarded most minutely and accurately. The safeguards are developed with reference to an all-inclusive term, 'due process of law."

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Due process of law, along with the provisions of the constitutions, determines both the substance and the procedure of government in three principal aspects: first, the public powers, or the powers of government under which authority is granted to protect, enlarge or abridge rights, and duties; second, the public authorities, or the powers of officials acting within that authority; and third, the principles, standards or "maxims" that determine the limits beyond which public powers and public authorities shall not go. Each of these aspects affects labor legislation.

(1) Public Powers

Ja. a. Power to Preserve Peace and Execute the Laws. Government exists, first of all, to enforce the duty to keep the peace.

1 See "Public Benefit," p. 24; "Equal Protection of the Laws," p. 28; "Maximum Hours, Women," p. 221–224

To do this it may use force. It is the custodian of physical coercion and the authority that may threaten violence. Only in actual self-defense or in extreme urgency has an individual the right to resort to violence. He must confine himself to persuasion in every other case. Groups of individuals may go on strike, may get together for free discussion, or for agitation and joint action, but they must assemble and act peaceably. Even though they suffer the greatest injustice they must not go beyond the duty of obedience to law and order. The authorization, or "power," of the state to use violence in order to execute the laws, to protect person and property, to punish for crime, is its first and highest justification, without which no other power could exist, and all government would be impossible. This is its exclusive authority, and it cannot compromise the question or permit private violence, except at the peril of its own existence. Under the justification of preserving the peace and executing the laws, the state may deprive individuals of life, liberty, or property without consent or compensation.

b. The Taxing Power. The taxing power is an authorization under which government takes private property for public purposes without compensation. By this authority the state provides for the most fundamental legislation for or against labor. It provides free schools, compulsory education for future workers, and pays the salaries and expenses of all officials who enforce the labor laws. A labor law is defeated as surely by voting against taxes to enforce it as by voting outright against the law itself. But the taxing power is used, not only for revenue, but also for purposes which otherwise are justified under the police power. A tariff on the products of foreign pauper labor is designed to strengthen the bargaining power of American labor. A tax on poisonous phosphorus matches is placed so high that it brings in no revenue at all, and serves only to protect the health of employees. Under our form of government the police power belongs to the states and not to the federal government. But the federal government does, under the justification of the taxing power, what the states might do under the police power.

c. Guardianship. The state is the universal trustee or guardian, and exercises the remnants of the authority which

the monarch had as parens patria, the "father of his country." In mediæval times the property of a chief tenant reverted at death to the king, and the children became the wards of the king, for the king's benefit. Now the state is trustee for the benefit of the children and the people. This power justifies child labor legislation. In the early law of patria potestas, or "power of the father," the natural father was the owner of his child, as he was owner of his wife, lands, slaves and chattels. It was the child's duty to obey. Now, the child has many rights against its parent, and, since it is unable to enforce these rights itself when the parent violates them, the state intervenes as its guardian on behalf of the people of the future. It takes the child away if necessary; it deprives the parent of his right to the child's earnings by prohibiting its employment or by reducing its hours of labor; it enforces the parent's duty of education by compulsory school attendance. Patria potestas yields to the authority of parens patriæ.

This authority of the state is nowadays treated as a branch of the police power.2 As such, it is a justification for an extreme use of the police power not permitted in other cases. It deals with children, unable to make bargains for themselves. The police power primarily interferes with the bargains of adults. Restrictions which the courts would not permit under other classifications within the police power are unquestionably approved when the justification of guardianship is merged with that of police.

d. Eminent Domain. The state may be an owner of property and business, like a private person. It may acquire ownership by various methods, all of which rest ultimately on its sovereign power of coercion. Some of its properties are acquired by conquest. Others are purchased by voluntary bargain; others, by compulsory bargain, under the power of eminent domain. In either case the power of taxation may furnish the funds.

Eminent domain is a justification of the state in taking property from its own citizens without their consent. It differs from the other powers in that it applies to an individual rather than to a class, and therefore our constitutions require

1See Andrews, American Law, pp. 652-654, and cases there cited. 'Freund, Police Power, 1904, pp. 246–253.

The

that compensation be made when property is taken. individual has no inalienable right to withhold his property from the state, if the state desires it for a public purpose. But the constitutions protect the individual against the state by requiring just compensation.

e. Proprietorship. Whether it acquires physical property or not, the state, in its various divisions of town, city, county, state, and nation, becomes an employer of thousands of wageearners. It fixes their wages, hours and conditions of labor according to its own ideas as determined by its legislatures, executives, or courts. It is not restricted, as it is when exercising the police power, because it is not taking away private property (except perhaps as it falls back on the taxing power to pay the wages). Consequently, the American state, under universal suffrage and the power of proprietorship, or public ownership and operation of public business, supported by the taxing power, has gone far ahead of private owners in raising wages, shortening hours and improving the conditions of its employees. Even contractors, or private employers who work for the state, are required, under laws that provide for "fair wages," as in England, or for the "prevailing rate of wages,' as in America, to pay higher wages or observe shorter hours than they might in their work for private capitalists.1

f. The Police Power. The police power is an indefinite authorization for the American state to abridge liberty or property without consent or compensation in addition to its other more definite powers. An individual is sick with diphtheria. The state draws the line of quarantine beyond which his family and friends are deprived of their liberty of movement. Valuable animals have the foot and mouth disease. The state may order them to be shot and buried without consent or compensation. A public utility corporation has the valuable bargaining power of fixing its prices for gas, electricity, water, or transportation, and withholding service if the price is not paid. The state reduces the price and compels the company to continue or increase the service. The employer has valuable rights in his defenses of assumption of risk, fellow servant, and contributory negligence in suits

1 See "Historical Development of the Minimum Wage, United States," p. 176; "Maximum Hours, Men," p. 228.

brought against him for damages caused by accident. The state takes away his defenses and increases by so much the value of the rights belonging to his employees.1 Other examples might be given. The bulk of labor legislation by the states looks for authorization to the police power.

The police power in the United States differs from other powers in the miscellaneous and indefinite range of subjects that it may cover. It is defined rather by what it does not cover than by what it does. It differs from the taxing power in that it reduces the owner's liberty to use, acquire, or own property, rather than the revenues derived from it. It differs from eminent domain in that it applies to a class rather than to an individual and does not require compensation to be made. While it includes guardianship, it differs from it in that it abridges or enlarges the rights of adults and full citizens instead of those of children. It differs from public ownership and operation, or proprietary power, in that it abridges or enlarges the powers of private persons over their own persons or property instead of the power of the state over its own property or business. It differs from the power to use violence in order to keep the peace and execute the laws, in that it is one of the justifications or reasons advanced according to which the state is authorized to enact the laws themselves, rather than the physical power to enforce them after enactment. It is the police power, not the police.

man.

The other powers of the state, previously mentioned, are in theory definitely limited. Either they accomplish only a specific object of government, such as conquest, peace, the execution of laws, the acquisition of revenues, or the purchase of property, or they extend only to a limited class of people, such as children or public employees. But, in addition to these objects and persons, there are those large and indefinite purposes of public safety, health, morals, welfare, and prosperity, and those many but indefinite classes of producers and consumers, buyers and sellers, employers and employees, who often are restrained by government under the police power. Moreover, these purposes and classes are continually changing

1 See "Industrial Accident Insurance," p. 372.