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CHAPTER V.

THE UNITED STATES.

SECURITY FOR PAYMENT OF WAGES EARNED.—That laborers should promptly receive wages due them for work is obviously a matter of importance to the state, as the laborer commonly has nothing but his wages standing between him and the public poorhouse. This applies particularly, of course, to work done for the state, when the state is the ultimate paymaster but acts through intermediaries like contractors. In the Texas Constitution one finds the provision that

The legislature shall, at its first session, pass laws to protect laborers on public buildings, streets, roads, railroads, canals and other similar public works, against the failure of contractors and subcontractors to pay their current wages when due, and to make the corporation, company or individual for whose benefit the work is done, responsible for their ultimate payment.Article 16, sec. 35.

The earliest statutes of this kind are the mechanics' lien laws, which in this state date back to 1830. In that year the Le lature enacted a mechanics' lien law for New York City, which compelled the owners of buildings to withhold or deduct from payments to contractors or sub-contractors whatever amounts were owing to mechanics and laborers for wages. While mechanics' liens were created on all public improvements at a later date (1878), this method of providing security of wages was too round-about to afford satisfaction to the laborers on great public works like the railways and canals; consequently laws were enacted in 1850 which (1) made each railway company responsible for the wages of workingmen in the employ of the contractors or sub-contractors and (2) required each contractor on the state canals to give a bond that he would " well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in the contract.” In other states this method of securing the wages of laborers is followed in all contracts for public improvements, state or municipal. The Federal statute may be cited as an illustration of these laws and is reprinted in Appendix II, together with the California statute making it a felony for contractors to withhold wages due laborers on public works. The following state laws vary from the Federal statute in minor points, but the general principle is the same in all :

California. Laws of 1897, ch. 140.
Indiana. Annotated Statutes, ch. 24, SS 4300-bc.

Kansas. General Statutes of 1901, 88 5130-1.
Massachusetts. Laws of 1904, ch. 349.
Michigan. Compiled Laws of 1897, ch. 296, 88 10,743–5.
Minnesota. L. 1895, ch. 354.
Missouri. Revised Statutes, 1899, ch. 91, § 5684, and ch. 97, 98 6761-2.
Nebraska. Compiled Statutes, ch. 54, § 3683.
North Dakota. L, 1901, ch. 133.
Oregon. L. 1903, p. 256.
Tennessee. L, 1899, ch. 182.
Washington. Codes and Statutes 1897, Title 33, $$ 5925–7.
Wisconsin. L. 1899, ch. 292.

In Minnesota the wages of employees of insolvent contractors on county work may be paid by the county commissioners. In Colorado, while no bond is required, the officers of cities, towns, etc., are required to retain from the money due contractors amounts sufficient to satisfy the claims of laborers for wages.

HOURS OF LABOR.

Historically the shorter-hour movement closely follows the agitation for the legal security of wages. Prior to the enactment of the first mechanics' lien law, in 1830, meetings and conventions of workingmen in New York and New England discussed factory laws and the ten-hour day along with the lien law. In 1840 President Van Buren issued his ten-hour order for government employees and in 1853 the Legislature of New York enacted the following ten-hour law :

LAWS OF 1853, CHAPTER 641. Section 1. Ten hours shall be deemed a day's work in the absence of any agreement, for mechanics and laborers on all public works in this State. Sec. 2. This act shall take effect immediately.

Scarcely had this formal declaration in favor of a ten-hour work-day been placed on the statute books before an agitation started in favor of the eight-hour day, which had already been established in the principal trades in Australia. New York was among the first of the American commonwealths to declare in favor of the eight-hour day; by chapter 856 of the laws of 1867, eight hours were made to constitute “a legal day's work in all cases of labor and service by the day, where there is no contract or agreement to the contrary.” No practical results of importance followed this friendly declaration or the amended act of 1870, which imposed a penalty for violation of the law by public officers or contractors for public work (chapter 385), but permitted overwork for extra compensation. On public works carried out by the State government itself public sentiment probably sustained those public officers who carried out the intent of the law, but on work executed by contract there was no way of enforcing the law so long as laborers could be found who were willing to work more than eight hours a dayand of such Europe furnished an inexhaustible supply. To limit, in some degree, the importation of labor willing to work any number of hours was the purpose of section 2 of chapter 380 of the laws of 1889, which required preference to be given to citizens in all cases where laborers are employed on public work, and of the amendment to the eight-hour law in 1894 (chapter 622) which permitted none but citizens of the United States to be employed on public works and also required the payment of the “ prevailing rate of wages." In 1897, when the various labor laws were codified in the general Labor Law (chapter 415), the eight-hour law was inserted as section 3 and the penalties were inserted in the Penal Code. But it was not until 1899 that the important step was taken, upon the recommendation of Governor Roosevelt, of giving practical effect to the law by prohibiting overtime on public work and making eight hours thereon an actual maximum to be exceeded only in cases of “extraordinary emergency » (chapter 567).

Their inability thereafter to continue their evasion of the law led the contractors to attack its constitutionality, in which they were successful so far as municipal contracts are concerned, the state courts holding that the principle of "home rule” required that municipalities should be free to determine the terms of their own contracts without interference from the state government, although the right of the state to fix salaries and wages of persons employed by the municipality itself was conceded, as was also its competence to regulate conditions of employment on public work of the state. To extend the authority of the state Legislature over the sphere of municipal contract work, the representatives of the workingmen proposed an amendment of Article XII of the state constitution relating to the organization of cities, which was approved by the Legislature and submitted to the people at the election last November. The importance of the amendment was realized by all interests concerned; the trade unions conducted an active campaign in its favor and numerous associations of employers opposed it openly, while others worked against it secretly. It was adopted by vote of more than 2 to 1 (338,570 for, 133,606 against; see vote by counties in the Department of Labor Bulletin, Dec. 1905, p. 480), and on the first day of the legislative session of 1906 bills (S. 17 by Mr. Page, A. 33 by Mr. Rock) were introduced in the Senate and Assembly to

*

The

*People ex rel. Cossey v. Grout, decided by the Court of Appeals Nov, 29, 1904. United States Supreme Court in the preceding year sustained the Kongas eight-hour law.

re-enact the old eight-hour law. The experience of the Department of Labor with that law, however, had revealed certain defects which the department officials desired to have remedied. Similar difficulties met with by trade union men in collecting, evidence of violations had likewise convinced the officers of the State Workingmen's Federation of the need of improvements in the form of the statute, and at the instance of the Federation's representative a new measure was drafted, the eight-hour provisions being substantially the same as those in the bill urged before Congress by the officers of the American Federation of Labor and other national labor bodies. The bill (A. 685 introduced by Assemblyman Gates, Feb. 13, 1906, printed in Appendix hereto) also provided, by amendment of section 21 of the Labor Law, for the establishment in the Department of Labor of a new bureau for the enforcement of the laws relating to labor on public works. The latter amendment was urged by the Commissioner of Labor as necessary to prevent the diversion of factory inspectors from their regular duties in enforcing the factory laws of the state, to which diversion he expressed strong opposition.

Throughout the United States enactments restricting the hours of labor on public works appear to be the most popular or usual form of regulation of public work in the interest of labor.

The Federal Government and 20 states or territories besides New York have entered this field of legislation and in all but one state eight hours a day is the limit; in Massachusetts the maximum is fixed at 9 hours, but this may be reduced to 8 hours in any city or town by vote of the people.* As will be seen by examining the statutes reprinted in an appendix, they differ greatly from one another in content and scope. In order to make a practical and constitutional statute, some provision must be made for emergencies; but any permission to change the prescribed hours is so valuable to contractors that they have at times offered an “emergency excuse for evasion of the law week after week. The Colorado statute contains the novel provision that work in excess of eight hours a day is to be permitted in case of emergency, provided that such excess is treated as constituting part of a subsequent day's work and that no workman shall be employed more than 48 hours a week (7 days).

Violation of the eight-hour law is usually a misdemeanor punishable by fine or imprisonment, but a few of the states

ers.

*The list of states and territories is as follows: California, Colorado, Delaware (city of Wilmington), District of Columbia, Hawaii, Idaho, Indiana, Kansas, Maryland (city of Baltimore), Minnesota, Montana, Nebraska (cities 25,000 to 40.000 population), Nevada, Pendsylvania, Porto Rico, Utah, Washington, West Virginia and Wyoming.

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content themselves with placing responsibility for the enforcement of the law upon the officers or agents of the state and impose no penalty upon the contractor (Idaho, Massachusetts, Nebraska and Utah; Wyoming has simply a constitutional declaration). Two states, California and Minnesota, prescribe a fine of $10 per day for each laborer required to exceed the eighthour limit, such fines to be withheld from the moneys due on the contract. Nevada provides for such a fine and also for forfeiture of the contract, in New York, Delaware and Washington.

RATES OF WAGES. The eight-hour law section 3 of the Labor Law) of this state provides that on public work the prevailing rate of wages shall be paid to mechanics and laborers. This clause was added to the law in 1894 (chapter 622) and was undoubtedly intended to prevent the reductions in wages that in many cases followed the substitution of an eight for a ten-hour day. Where, for example, day laborers were earning $1.50 a day, the contractor would argue that the hourly rate was 15 cents; consequently, the daily wage for an eight-hour day would be $1.20. This was the accepted method of defeating the purpose of the law, when it could be evaded in no other way, and even as late as 1904 an attempt of this kind was made by a Brooklyn contractor.* An earlier attempt to secure what is known to the English law as a "fair wage" had been made in 1889 when the Legislature (in chapter 380) prescribed that the minimum wage to be paid to all day laborers employed by the State should be two dollars per day. The constitutionality of this act, which did not apply to contract work, was affirmed by the Court of Appeals; but the section referred to was repealed in the following year. When in 1894 the prevailing rate of wages clause was added to the eight-hour law, it applied to employees of contractors as well as the state, or a political division of the state; seven years later (two years after the strengthening of the law in 1899), the clause was held unconstitutional by the Court of Appeals (People ex rel. Rodgers v. Coler, 166 N. Y. 1–1901), so far at least as it affected municipal contractors.

Delaware and Kansas have enacted prevailing rate of wages laws essentially like that of New York and the latter has been upheld by the Supreme Court of the United States (1903, Atkin v. Kansas, 191 U: S. 207), as well as the state courts. California and Nebraska have prescribed a minimum wage of two dollars a day for labor employed on public works (the Nebraska act relates to cities of a certain class), while an act fixing twenty

*Report of the Commissioner of Labor, 1904, p.'16, footnote.

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