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VI. ANALYSIS OF RESULTS-Concluded.
Proposed legislation in Illinois and legislation in other
VII. CORPORATIONS, RAILROADS, WAREHOUSES, PUBLIC UTILITIES,
Historical account of the Illinois Central provision......1183
Amounts received from the Illinois Central Railroad...1185
This bulletin discusses the distinctly economic provisions of the Constitution of 1870, and also the various proposals likely to be made to the Constitutional Convention with respect to social and economic matters. In Bulletin No. 4 upon state and local finance will be found a discussion of state and municipal debt limits, with some indication of the relationship of such limits to enterprises which it may be desired to have the state or municipal corporations undertake. In Bulletin No. 7 upon eminent domain and excess condemnation will be found a full discussion of certain proposed extensions of governmental power, in order to enable the government to do certain things not now permitted. The discussion in Bulletin No. 7 deals of course only with. the extent to which further governmental activities may be accomplished or aided through the power of eminent domain. In Bulletin No. 8 on the legislative department will be found a chapter dealing with the subject of legislative powers; in this chapter an attempt has been made to indicate the reasons why numerous matters with respect to social and economic legislation have been placed in the texts of state constitutions. In Bulletin No. 10, dealing with the judicial department, will be found a chapter devoted to the power of the courts to declare laws unconstitutional. This power bears a close relationship to the subjects discussed in the present bulletin, inasmuch as a number of the problems which are here discussed will present themselves to the constitutional convention because of decisions holding legislation invalid under the constitution of 1870.
The subject of farm tenancy and rural credits has been deemed sufficiently important to deserve a separate bulletin, and a full treatment of this subject will be found in Bulletin No. 13 of this series. The subject of housing and ownership of homes discussed in this bulletin bears a close relationship to the subject of farm tenancy and rural credits. The one subject looks at the matter from the standpoint of the farming community, and the other from the standpoint of the urban community.
EXTENT TO WHICH SOCIAL AND INDUSTRIAL
In every large industrial state of this country, certain types of legislation have been held invalid as violating broad constitutional guarantees, such as that with respect to due process of law. The Ohio constitutional convention of 1912 proposed several amendments whose purpose was to establish a policy in the state different from that announced by the Ohio supreme court before 1912. Of the amendments adopted by the people of Ohio in 1912 the following four at least were of this character: (a) A constitutional provision authorizing the legislature to pass mechanics lien laws. (b) An amendment authorizing legislation "fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes." (c) A constitutional provision expressly authorizing compulsory workmen's compensation legislation. (d) An express provision that except in cases of extraordinary emergency a day's labor on public works carried on or aided by the state or by any political subdivision thereof should not exceed eight hours a day or forty-eight hours a week.
Prior to 1912 judicial decisions in Ohio had held invalid regulations with respect to mechanics liens and also with respect to the limitation of hours of labor upon public works. There had also been a judicial decision holding it improper for the legislature to require the screening of coal in connection with the payment of wages to miners. The other provisions above referred to were inserted into the Ohio constitution in 1912, because it was feared that the court might hold certain types of legislation unconstitutional, unless such legislation were explicitly authorized by the constitution.
The present constitution of Illinois does not contain a great many provisions similar to those just referred to as having been inserted into the constitution of Ohio in 1912. However Article 4, section 29, is similar in character. This section reads "It shall be the duty of the General Assembly to pass such laws as may be necessary for the protection of operative miners by providing for ventilation, when same may be required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper." This constitutional provision seems from
Upon the whole matter discussed in this chapter material of interest will be found in the Massachusetts Constitutional Convention Bulletin No. 18, The Constitutionality of Social Welfare Legislation,
certain decisions of the court to vest in the General Assembly a wider power as to legislation for the safety of miners than with respect to other types of labor legislation."
By amendment in 1886 a provision was added to the constitution that: "Hereafter it shall be unlawful for the commissioner of any penitentiary, or other reformatory institution in the State of Illinois to let by contract to any person, or persons, or corporations, the labor of any convict confined within the said institution."
Certain types of legislation are clearly valid under the present constitution, and as to them no constitutional authorization is necessary. On the other hand, if it is already recognized that a certain type of legislation may be validly enacted, placing a provision in the constitution regarding it is likely to operate as a limitation upon legislative power with respect to that type of legislation. State Constitutional provisions are normally construed as limitations upon legislative power, and if a provision is placed in the constitution which was unnecessary as a means of granting legislative power, that provision will be interpreted as limiting the power of the legislature. An important example of this will be found in Nebraska. The framers of the Nebraska Constitution of 1875 placed in that instrument an authorization for the establishment of reform schools for children under the age of sixteen years. The legislature later desired to extend the age of children who might be committed to a reform school, but this was held improper, the court saying that the legislature would have had full power with respect to reform schools in the absence of constitutional provision, but that the constitutional provision must have intended to limit the legislative power as to the type of reform school that might be established.
It may be worth while to review briefly the types of legislation whose validity has been, or is likely to be, sustained:
(a) It is clearly proper under the present constitution for the General Assembly to enact legislation regarding the hours of labor of women. This principle has been fully established by the case of Ritchie v. Wayman, 244 Ill. 509 (1910), and People v. Elderding, 254 III. 559-579 (1912.) It is true of course that in the earlier case of Ritchie v. People, 155 Illinois 198 (1895) the Supreme Court of Illinois held unconstitutional an eight-hour labor law for women. However, in the later case the Supreme Court substantially departed from its attitude in the first Ritchie case, although it should be understood that the first Ritchie case arose under an eight-hour labor law for women, whereas the second case arose under a ten-hour law. No legislation has been enacted in Illinois which reduces the labor of women below ten hours a day. Yet, in view of the case of Miller v. Wilson, 236 U. S. 373 (1915) it may be suggested that eight-hour labor legislation for women would probably be upheld by the Illinois Supreme Court. In this matter the court would probably follow the ruling of the United States Supreme Court.
(b) Hours and conditions of labor of children. The prohibition of child labor and the strict regulation of hours and conditions of
2 Starne v. People, 222 Ill. 189 (1906).
labor of children are matters as to which legislation is now pretty clearly constitutional. Legislative power with respect to children is much greater than with respect to adult males or adult females, and there was a clear pronouncement in favor of the constitutionality of legislation for children in a recent case which went to the United States Supreme Court from the state of Illinois (Sturgis v. Beauchamp, 231 U. S. 320.)
(c) Workmen's Compensation. Ten years ago there was serious doubt as to the constitutionality of compulsory workmen's compensation laws, and the New York Court of Appeals in the case of Ives v. South Buffalo Railroad Company (201 N. Y. 271) expressly held such legislation unconstitutional. An amendment to the constitution of New York was adopted permitting workmen's compensation legislation in that state, and similar amendments have been adopted in a number of other states. However, such constitutional provisions seem now unnecessary in view of the fact that compulsory workmen's compensation legislation has been upheld by the United States Supreme Court in the recent case of New York Central Railroad Co. v. White, 243 U. S. 188 (1917). Since 1917 compulsory workmen's compensation legislation for hazardous employments has been in force in Illinois, and this legislation has not been contested in the courts.
(d) Safety appliances legislation. Illinois has had for a number of years a large amount of legislation regarding safety in factories and in mines. Safety legislation for mines is expressly authorized by the constitution of 1870, but safety legislation with respect to factories and other industrial establishments is sustained generally in this and other states under the police power, independently of any express authorization. With respect to safety legislation there is probably no need whatever of constitutional authorization. It is true that some cases in this state imply a doubt as to the validity of such legislation, but the doubt. when expressed by the court has been based not upon the character of the legislation as a whole but upon some element of improper classification. Legislation for the prevention of occupational diseases is also clearly within the police power, and such a case as People v. Schenck, 257 I. 384 (1913) is based not upon the invalidity of such legislation in general, but upon a classification which was claimed to be improper. In that case the Supreme Court took the view that it was improper to prohibit the use of emery wheels or emery belts in any basement.
(e) The contracting for the use of convict labor is now prohibited by the constitutional amendment of 1886, and this matter is therefore perhaps sufficiently covered by express constitutional provisions. However some effort may be made to place in the constitution a further provision prohibiting the placing of convict-made goods in competition in any manner with goods manufactured by free labor.
(f) There may be some doubt as to the validity of minimum wage legislation, if such legislation were enacted in the state of Illinois. In the case of Stettler v. O'Hara, (243 U. S. 629) the United States Supreme Court by an equal division sustained minimum wage legislation for women and children. The court was equally divided in this case because Mr. Justice Brandeis had been the counsel supporting the va