II. 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 1 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.2 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 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 II. 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 lidity of the law before he became a member of the United States Supreme Court. It is therefore fairly clear that a majority of the federal Supreme Court are in favor of the constitutionality of minimum. wage legislation for women and children. The fact that the United States Supreme Court may sustain the validity of minimum wage legislation does not of course necessarily mean that the validity of such legislation would be sustained by a state supreme court. The State Court is the final interpreter of the broad guarantees contained in a State Constitution, and may, if it sees fit, hold legislation unconstitutional as violative of due process of law, even though such legislation has been held not violative of the due process of law guarantee of the Federal Constitution. Minimum wage legislation for men would be of doubtful validity in either the state courts or the United States Supreme Court. The case of Wilson v. New, 243 U. S., 332, which upheld the wage provisions of the Adamson Law, was clearly based upon a specific emergency and it would probably not be wise to reason from that case to any general view in favor of the validity of minimum wage legislation for men. The discussion above has related to legislation which is either clearly constitutional or which would probably be held constitutional by the Supreme Court of Illinois. In a number of cases, legislation upon other matters has been held unconstitutional by the Supreme Court and it is possible to say that certain other types of proposed legislation not yet enacted in Illinois would be held invalid if they were enacted. A brief review should be given of types of legislation which would probably be held invalid. (1) In another chapter of this bulletin will be found a full discussion of the problem of injunctions in labor cases, and of the legislative power to limit the authority of courts to punish for contempt in such cases. As has been indicated, legislation with respect to these matters has been enacted by Congress and by a number of state legislatures. On the other hand legislation of this character has been held improper in California, Massachusetts and New Jersey, and the judicial decisions of this state seem to lead to the conclusion that such legislation would be held invalid in this state under present state constitutional provisions. (2) Legislation regarding the payment of wages, particularly that requiring the payment of wages in cash and that requiring coal to be screened in the payment of wages to miners, has been held unconstitutional in this state. The Supreme Court of Illinois has been pretty definitely of the view that legislation regulating the payment of wages in this manner is unconstitutional. The leading cases upon this matter are cited in a note. Legislation of this character has been upheld by the U. S. Supreme Court, as not violative of due process of law, and there has been some tendency for courts which have once held such legislation invalid to change their view. However a large mass of Millet v. People, 117 Ill. 294 (1886); Frorer v. People, 141 Ill. 171 (1892); Ramsey v. People. 142 Ill. 380 (1892); Braceville Coal Co. v. People, 147 Ill. 66 (1893); Harding v. People, 160 Ill. 456 (1896); Kellyville Coal Co. v. Harrier, 207 Ill. 624 (1904. possible legislation regarding the payment of wages is now unconstitutional in Illinois. A proposed amendment to the constitution of Illinois was submitted to the people in 1894. This proposal read as follows: "That the general assembly shall have power and it shall be its duty to enact and provide for the enforcement of all laws that it shall deem necessary to regulate and control contracts, conditions and relations existing or arising from time to time between corporations and their employes." The affirmative vote on the proposal was 153,393, and the negative vote 59,558, but the amendment failed because not receiving a majority of the votes cast at the election. (3) Hours of labor of men. In the case of Lochner v. New York (198 U. S. 45) the United States Supreme Court held invalid a law which limited the hours of labor in bakeries to ten hours a day. The same court in the earlier case of Holden v. Hardy (198 U. S. 366) held a limitation of the hours of men in mines and smelters constitutional, on the ground that labor in mines and smelters was hazardous and that the hours might be limited in such employments. The Lochner case was distinguished from Holden v. Hardy on the ground that labor in bakeries was not hazardous or unhealthful. In the case of Bunting v. Oregon, 243 U. S. 426 (1917) the United States Supreme Court upheld an Oregon law which definitely limits the hours of labor of men, and practically departed from the view expressed in the Lochner case. The Oregon law was a general ten hour law, but was applied to establishments which had under other legislation been classed as hazardous, although all the employments to which it was related were not hazardous in the strict sense of the word. In view of the Bunting case, it is probably now true that the United States Supreme Court would uphold legislation restricting the hours of labor of men, although such legislation might be of doubtful validity if the hours were limited beyond ten hours a day. It has now come to be generally recognized in this country that a state legislature may limit the hours of labor upon public works, whether such public works are conducted by the state or by a political subdivision of the state. Such legislation was upheld by the United States Supreme Court in the case of Atkin v. Kansas, 191 U. S. 217 (1903). In New York, California, Ohio and other states, legislation limiting the hours of labor of men upon public works was held invalid by state courts, and such decisions have lead to constitutional provisions prescribing an eight-hour day upon public works in New York, Ohio, California, Arizona, Colorado, Idaho, Montana, New Mexico, Oklahoma, Utah and Wyoming. No legislation has been expressly enacted in Illinois limiting the hours of labor upon public works, but decisions of the Supreme Court of Illinois upon municipal contracts have made it clear that an Illinois court would regard such legislation as invalid. In the case of Fisk v. People, 188 Ill. 206 (1900), the Supreme Court took the view that the requirements of union labor and of an eight-hour day in municipal public works were invalid, and the attitude of the court pretty clearly indicated that it regarded such regulation as not merely beyond the |