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THE LABOR LAW OF MARYLAND
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First Lieutenant, Judge Advocate, A. E. F.
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THE LABOR LAW OF MARYLAND
Series xxxvii No. 2
JOHNS HOPKINS UNIVERSITY STUDIES
IN
Historical and Political Science
Under the Direction of the
Departments of History, Political Economy, and
Political Science
THE LABOR LAW OF MARYLAND
BY
MALCOLM H. LAUCHHEIMER, PH.D.
First Lieutenant, Judge Advocate, A. E. F.
BALTIMORE
THE JOHNS HOPKINS PRESS
19x9
Copyright 1919 by
THE JOHNS HOPKINS PRESS
PRESS OF
THE NEW ERA PRINTING COMPANY
LANCASTER. PA.
7^35"
CONTENTS
Pags
PREFACE vii
CHAPTER I. Introduction 9
The Problem of the Labor Law 9
Maryland Conditions '6
CHAPTER n. The Labor Union 19
The Law of Union Activities *9
Statutes Relating to Unionism 39
CHAPTER in. The Workmen's Compensation Law 46
History 46
The Present Law as Social Legislation 5 ^
The Constitutionality of the Law 7°
CHAPTER IV. The Conditions of Employment 76
Regulation by Commission 77
Fire Protection ^*
Protective Devices ^5
Sanitation 86
The Tenement Law 9°
CHAPTER V. The Terms of Employment 94
Foreword 94
Prohibitions of EmplojTnent 96
Hours 100
Wages 104
CHAPTER VL Some Miscellaneous Laws "3
Licenses . .* ^ *3
Attachments and Liens "^
Child Welfare "7
State Employment ^^9
CHAPTER Vn. The Administrative System 122
State Board of Labor and Statistics '23
State Board of Health ^3S
Minor Administrative Agencies '35
Suggestions for Reform '3°
CHAPTER VIII. The State in Relation to Labor MS
V
N
G9Gi30
INST. INBUS. KBL.
PREFACE
This monograph needs little preface. The method of
study is local and intensive, but I have endeavored to draw
some general conclusions from the specific subject-matter
treated. The book, as its title implies, is neither a text
book nor a reference book, though it may serve to a slight
degree in the latter capacity, but a dissertation.
I take this means of expressing my gratitude to Prof.
W. W. Willoughby, who served as my inspiration and
rendered me much assistance in the preparation of this
monograph, and also to Prof. George E. Barnett and to
Miss Anna Herkner, former Assistant-Chief of the Mary-
land Bureau of Statistics. Various others to whom I am
indebted are mentioned throughout the text.
The monograph was completed towards the end of 1916
and, because of the author's participation in the war, it has
been impossible to bring it up to date in many particulars.
M. H. L.
Til
THE LABOR LAW OF MARYLAND
CHAPTER I
Introduction
The Problem of the Labor Law. — The labor law of a
state is a peculiar combination of unwritten and statute
law. It differs from most law in that it is not merely an
evolution of the customary law of a community, but is a
definite attempt by the community to solve, now by the
common law, now by statute, an acute social problem. It
does to a degree reflect the customary morality of the com-
munity, but this not unconsciously, as, for example, in the
case of commercial law, but as a conscious adoption of an
ethical principle for a political norm. A complete under-
standing of labor law requires, therefore, not merely a
delving into jurisprudence, but also into political the-
ory. We must study, not merely the law itself, but the
law as an expression of the relation of the state to its citi-
zens; the labor law in truth is one of the most interesting
media in which to study the extent to which the state can
justify its interference in the private life of individuals.
Accordingly, although this study will be primarily a critical
analysis and description of actual laws in practical opera-
tion, there will necessarily be in it an undercurrent of specu-
lative political theory.
The state, then, in its labor law sets out to solve a very
definite social problem, the problem of industrial unrest,
the problem of reconciling and placating labor and capital.
The history of this activity of the state stretches back six
or seven centuries, and the policy of the state has varied
from complete aloofness to intimate intervention.
9
10 THE LABOR LAW OF MARYLAND [156
Logically and perhaps historically the first instrumental-
ity made use of by the state in meeting the labor problem
is the common law. This results, not from an active in-
tent on the part of the state to solve any problem, but from
a quiescent attitude towards an unimportant phenomenon.
The common law is turned to before the labor problem
assumes any special characteristics of its own, and the
various cases are settled according to the general principles
of the common law as laid down in cases between individ-
uals who are in no special relation to each other. If, in the
beginning, as is usually the case, no economic question
obtrudes into the case, but the matter is one of pure law,
the decision based on former precedents will work substan-
tial justice. When, on the other hand, the relative economic
position of the two parties is of importance, decisions based
on pure law will not be adequate and will often entirely
fail to settle the question at bar. When, as always hap-
pens, the economic status of the parties does not merit
attention until after the deciding of cases involving similar
matters, but not calling into question the economic relation,
it is practically impossible for the judges when the economic
question is presented to them to disregard the precedents
and to dispense economic justice and not justice according
to law. Common law does, as is often said, progress and
grow with the times, but more often legislation is necessary
to make it entirely adequate. Thus the common law of
negligence did not meet the requirements of industrial
accidents, and employers' liability and compensation laws
were the result. Thus the common law of individual bar-
gaining and competition does not seem to meet the require-
ments of collective bargaining, and legislation recognizing
the validity of unionism is being demanded.
A more serious inadequacy of the common law, how-
ever, as a means of solving the labor problem arises from
the inherent characteristic of that law as a system of juris-
prudence. The common law is remedial, compensatory;
labor conditions call for regulation, prohibition. The com-
157] INTRODUCTION II
mon law seeks to relieve the sting of a wrong after it has
been committed ; labor conditions necessitate regulations
making impossible the commission of the wrong. A close
scrutiny of the entire field of the common law will reveal
no principles which could support such movements as the
" safety first " and " living wage " propagandas. Even
equity with its canons of preventive relief against irrepara-
ble injuries does not furnish a proper foundation for the
state control of labor conditions. Thus, though the state
could and does depend to a great degree upon its unwritten
law in solving the economic problem of labor and capital,
it must and does every day more and more seek the answer
in social legislation.
But the first manifestations of state activity in the field
of labor legislation were of an entirely different nature
from what is now usually referred to as social legislation.
These laws, of which the Statute of Laborers, passed after
the Black Death, with its later variations and the Eliza-
bethan Statute of Apprentices are the classical examples,
were not based upon any economic principle of the welfare
of the laborer, but, in so far as any general principle of
economics was involved, upon a desire to keep low the cost
of commodities. Rather, it may be said, these laws were
secured by the dominant legislative class, the monied class,
for its own immediate benefit. In this sense these laws,
like most labor laws, were class legislation and nothing else.
But there did develop under the name of mercantilism,
of which these two laws were precursors, a theory of state
activity which entirely neglected the interests of the work-
ingman. Under this system the paternalistic state in its
endeavor to develop itself through its commerce subordi-
nated the laborer to the merchant and subjected him to
minute control in many of the terms of his employment.
It is, of course, true that the workingman whom this legis-
lation affected had just emerged from the status of serf-
dom and was a new and disturbing factor in the industrial
life of the time. But so thorough was this repressive legis-
12 THE LABOR LAW OF MARYLAND [158
lation that the new, free laborer was hardly in a better
position than the former villein.
It was against this system that Adam Smith and Jeremy
Bentham wrote; and as a result of their preachings there
ensued the period of laissez-faire in the relation of the
state to labor. At the climax of this individualistic philoso-
phy the state retired almost completely from the regulation
of economic affairs. Competition was relied upon to work
the salvation of society. The individual laborer was made
perfectly free to bargain for his own terms and to secure
his own economic betterment. The state progressed
through the progress of its individual citizens.
The period of laissez-faire marked a real and substan-
tial advance for the workingman, but it was short-lived. It
was not any inherent fallacies in the theory which caused
its modification — the philosophy of individualism has never
been abandoned — but rather a change in the actual condi-
tions to which the theory had to be applied. Contempora-
neously with the growth of laissez-faire individualism OC'
curred that stupendous advance in industrialism which is
usually termed the Industrial Revolution. With the inven-
tion of steam-driven machines and modern means of trans-
portation the factory system of manufacture speedily took
the place of the small shop system. A single employer
began to employ hundreds and then thousands of laborers.
The laborer, though legally and theoretically free to bar-
gain with the employer for the terms of his employment,
found himself practically at such a disadvantage that the
employer could hire him almost on his own terms. The
labor union was the workingman's answer to the factory
system, but it has not yet proved adequate in itself. The
state has, therefore, stepped in to guarantee to the laborer
certain terms and conditions of employment which have
been conceived to be reasonable and necessary.
This is the present-day status of labor legislation. The
doctrine of laissez-faire survives in so far as the state
leaves to the common law and individual action all that
/
159] I NTRODUCTION 1 3
these instrumentalities are capable of handling. Laissez-
faire is abandoned in so far as the state, recognizing the
inequality of the bargaining power of employer and em-
ployee, regulates as seems best for the welfare of the state
certain of the terms of the bargain. The state sacrifices
theoretical individual liberty for what is considered a truer
means of self-development. The state in its endeavor to
offset this inequality of bargaining power has returned to
some of the functions of the medieval paternalistic state;
but those who wish to make the distinction between the
former antagonistic and the present sympathetic attitude of
the state to labor sometimes term the present state mater-
nalistic rather than paternalistic in its regulations. To a
certain degree this distinction is specious and more will be
said of it in the final chapter of this study. It is sufficient
to say here that the solution which has been attained in
practical legislation is hardly a final remedy.
In the United States there is, besides political theoriz-
ing upon the relation of the state to labor, another funda-
mental to be considered. Our written constitutions en-
forced by powerful courts impose a legal limitation upon
state activity as well as a philosophical limitation. While
the state is quiescent the constitution is unobtrusive; but
when the state functions in enacting laws the constitution
exercises a tremendous restraint upon state action. The
whole of state activity in the United States affecting the
labor problem has been manifested within the last of the
periods just discussed, that of laissez-faire ameliorated in
favor of the laborer. All of this social legislation comes in
conflict with the " equal protection of the laws " and the
"due process of law" clauses of the Fourteenth Amend-
ment of the federal constitution or similar provisions of the
state constitutions. Both require brief discussion.
The essentials of " equal protection of the laws " are eas-
ily stated. Every citizen of a state is entitled to equal treat-
ment by the laws of that jurisdiction and to all the privi-
leges extended to any other citizen by the law. Reasonable
14 THE LABOR LAW OF MARYLAND [l6o
classification, however, is permissible if exercised on ad-
ministrative or any other justifiable grounds. Legislative
classifications are prima facie reasonable.
The "due process of law" clause is not so easily ex-
plained. Historically it is traced back to the per legem
terrae provision of Magna Charta, but as a substantive
provision of law its development is recent. Strictly con-
ceived this clause might have been construed as making
perpetual the eighteenth century doctrines of laissez-faire
and natural rights, and as limiting state activity to the nar-
rowest bounds. The clause luckily never received so nar-
rowing an interpretation, but was merely construed as
allowing the courts to inquire whether property appropri-
ated by legislation was taken for a legitimate state purpose.
Early in their interpretation of this clause, especially with
reference to social legislation, the courts evolved the police
power of the state as an exception to the prohibition and
through this exception the effect of the prohibition has been
much curtailed. It is indeed more profitable to consider
the cases dealing with labor legislation under the Fourteenth
Amendment as limiting the extent of the police power than
as defining due process of law, for the exercise of the police
power is due process of law.
Thus viewed, the explanation becomes more simple. It
is still impossible to define and limit exactly the police
power, but it is now possible to give rather succinctly the
two extreme views to one of which most decisions adhere.
There is, on the one hand, the strict legalistic view that the
police power extends only to the protection of the health,
safety and morals of the community ; that the state activity
should be strictly defined ; that none but the most moderate
of social legislation should be enacted. The Maryland
Court of Appeals leans to this view, although it is not en-
tirely constant in its principles. The other view is that the
police power extends also to the furtherance of public con-
venience. As put by Justice Holmes, "it may be said in
a general way that the police power extends to all the great
l6l] INTRODUCTION 1 5
public needs. It may be put forth in aid of what is sanc-
tioned by usage, or held by the prevailing morality or
strong and preponderant opinion to be greatly and imme-
diately necessary to the public welfare."^ This is the view
held by the Supreme Court and appears to exercise practi-
cally no restraint on really seriously considered legislation.*
Having these fundamentals in view, even as so inade-
quately outlined in this chapter, the object and plan of this
study may be made clear. The primary purpose has been
to describe and analyze all of the law of Maryland in any
way concerning labor. In order better to understand the
law of Maryland, I have usually brought it into contrast
or comparison with some conceived ideal borrowed some-
times from purely theoretical sources, but more often from
the law of other communities, generally of other States of
the Union such as Massachusetts, New York and Wiscon-
sin, but when necessary going to England and Continental
Europe for suggestions. In fulfilling this primary purpose
there must usually be some incidental consideration of the
manner in which Maryland has met the problems which
have just been outlined. This discussion of political theory
will be kept strictly in the backgroimd until the last chap-
ter, which will endeavor to lay down some constructive
principles. The plan of the work has been to follow as
,closely as possible the logical development of state activity.
No space has been allotted to the consideration of the law
of the labor contract, since this law is merely an adaptation
of ordinary contract law and contains no distinctive feat-
ures. The study begins with the law of the labor union,
which has been almost entirely left to the common law.
Then follows a consideration of the law of workmen's com-
pensation, which marks the only complete abandonment of
any principles of the common law referring to labor. The
three succeeding chapters deal with the new social legis-
1 Noble State Bank v. Haskell, 219 U. S. 104.
2 For a statement of the author's sympathy with this view, see his
article, "Imminent Constitutional Shams," in the Forum, vol. 57.
Jan. 1917, pp. 91-98.
1 6 THE LABOR LAW OF MARYLAND [l62
lation, demonstrating how far the laissez-faire theory has
been abandoned; and the study ends with chapters on the
administrative system and the relation of the state to labor.
But before taking up the law itself it is necessary to set
forth some uninteresting, but necessary, facts about Mary-
land.
Maryland Conditions. — As far as labor law is concerned
Maryland will be found to be, if not a typical American
State — for no State is typical when legislation is in question
— at least a mean or average State. Its law displays none
of the extremist characteristics of the experimentally in-
clined Western and Middle Western States, nor does it lag
with the Southern States in the wake of social legislation.
It follows rather closely on the heels of New York and
more remotely after the more radical Massachusetts. Con-
sidering its geographical position Maryland, with its some-
what backward labor law, may be judged rather leniently.
The State is usually classed as one of the Southern States.
Though the northernmost of these States and outside of the
Confederacy in the Civil War, it was a slave State and had
all the traditions of the aristocratic, non-industrial South.
Moreover its southern neighbors, Virginia and West Vir-
ginia, have the typical Southern labor law, perhaps suffi-
cient for their needs, but by no means effective. On the
other hand, Maryland has come to be in the class of indus-
trial States and, in this respect, her competitors lie to the
north rather than to the south. But, here also, the State
is restrained rather than spurred on by its neighbors.
Pennsylvania, which borders the whole northern boundary,
has until recently been most delinquent in its labor law and
many of the odious half measures in the Maryland law
have been caused by the potential competition of Pennsyl-
vania's industries. These excuses for the inferiority of the
Maryland law call up an explanation of another cause of
Maryland's backwardness. Like most Southern States,
Maryland's party politics are at a low ebb. The State
does not seem to have mastered the art of clean politics and
163] INTRODUCTION 1 7
it is dominated much more than is desirable by mediocre
poHticians. Ahhough this condition does not perhaps ac-
count for many statutory shortcomings, its effect is evi-
dent in the administration of the law.
Aside from these external facts, there are other practi-
cal difficulties which must be mastered in solving by legis-
lation the labor problem. The population of Maryland in
1910 was 1,295,346, about evenly divided between urban
and rural. Of the urban population, however, 558,485
people are collected in Baltimore City, which is the only
city of any size in the State. There are besides Baltimore
three other cities of between ten and twenty-five thousand
population and eleven other towns which are classified as
urban. Baltimore is, therefore, practically the only large
industrial center in the State and in it alone are found
many of the social problems which are usually the occasion
of legislation. Maryland, furthermore, is divided into two
unequal parts by the Chesapeake Bay. The Eastern Shore,
with a population of 200,161, is almost entirely rural and
the only industry of any importance is canning, which for
political as well as administrative reasons is almost unregu-
lated. The Western Shore may again be divided into tw'O
sections, the Western Shore proper and Western Maryland.
In the first of these is Baltimore, w^hich practically domi-
nates the industrial life of the section. Western Maryland
lies in the Appalachians and centers around Cumberland,
the second largest city in the State. Its chief industries are
coal-mining and transportation. Western Maryland is a
narrow strip of country, and it is chiefly here that the low
standards of the Pennsylvania and West Virginia labor
laws have to be guarded against. Geographical and eco-
nomic sectionalism accounts for the great amount of local
legislation on the Maryland statute books and to some ex-
tent for the lack of coordination in the administrative
system.
In 1910 there were employed in gainful occupations a
1 8 THE LABOR LAW OF MARYLAND [164
total of 541,164 persons, of whom 410,884 were male and
130,280 were female, comprising, respectively, 81 per cent
and 25 per cent of the total population of each sex above
the age of ten years. Their occupational distribution was
as follows:
Occupation Number Per Cent
Agriculture 171,100 21.6
Manufacture 172,155 31.8
Domestic and personal service 78,820 14.6
Trade 61,646 11.4
Transportation ^^,77^ 7.9
Clerical 28,871 5.3
Professional 23,474 4.3
Public service 8,954 1.7
Mining 7,368 1.4
CHAPTER II
The Labor Union
The Law of Union Activities. — Historically the law of
labor union activities was the first evolved by the state;
evolved, not enacted, for most of it is judge-made law.
Logically considered, also, the law of union activities must
be accorded first place; for, granted that the labor union
receives favorable treatment from the state, it seems easy
to demonstrate that hardly any other state activity is neces-
sary.
The Maryland labor law of the present day is based on
and grew from the eafly English law, and hence some slight
treatment of that law is necessary. The beginnings of the
English law, however, are somewhat surrounded in mys-
tery. It seems that the earliest activities of the union were
branded as criminal conspiracy at the common law, though
it is by no means certain that the ofifense of criminal con-
spiracy was not the creation of a statute. Be this as it may,
before labor unions as such came into prominence statutes
were passed early in the eighteenth century forbidding com-
binations of laborers for the raising of wages and other
purposes and making such combinations criminal conspira-
cies. These statutes grew in severity and comprehensive-
ness until the beginning of the nineteenth century. There-
after the law became more liberal. The cause of this change
was the union itself. Utterly unsanctioned and potentially
oppressed in its most beneficial activities by the law, it nev-
ertheless continued to exist. It was not a casual phenome-
non: it was an economic growth, necessary to and justified
by industrial conditions. Slowly and often surreptitiously
it grew, but grow it did until, in the atmosphere of greater
political liberty, it made itself felt in legislative halls. In
19
20 THE LABOR LAW OF MARYLAND [l66
1875 the ban of criminal conspiracy was lifted and finally,
in 1906, the union was granted a most enviable place in
English law.^
Maryland in 1776 adopted, with the other twelve States,
the English law of union activities in so far as it was con-
sonant with American ideas and ideals. This law was the
harsh, antagonistic law of the eighteenth century hardly
modified at all in the adoption. Thus, in an early case, the
Maryland Court of Appeals sums up the law of criminal
conspiracy: "An indictment will lie at common law — (i)
for a conspiracy to do an act not illegal, nor punishable if
done by an individual, but immoral only; (2) for a con-
spiracy to do an act neither illegal nor immoral in an indi-
vidual, but to effect a purpose which has a tendency to
prejudice the public — for a conspiracy (by two or more)
to raise their wages, either of whom might legally have
done so; (3) for a conspiracy to extort money from an-
other, or to injure his reputation by means not indictable if
practised by an individual, as by verbal defamation ; (4)
for a conspiracy to cheat and defraud a third person, ac-
complished by means of an act which would not in law
amount to an indictable cheat if effected by an individual ;
(5) for a malicious conspiracy to impoverish or ruin a third
person in his trade or profession; (6) for a conspiracy to
defraud a third person by means of an act not per se un-
lawful and though no person be thereby injured; (7) for
a bare conspiracy to cheat or defraud a third person, though
the means of effecting it should not be determined on at
the time."- It is obvious that, either under the third clause
declaring indictable a conspiracy to raise wages or under
the fifth referring to a conspiracy "to impoverish or ruin
a third person in his trade or profession," a labor union
would almost surely have found itself running counter to
the law. In fact, if the union were merely formed for one
1 For a complete discussion of the early law of conspiracy as
applied to labor unions, see J. W. Bryan, English Law of Conspiracy.
2 State V. Buchanan, 5 H. & J. 317 (1821).
167] THE LABOR UNION 21
of these purposes — and it must be remembered that these
prohibitions against conspiracy referred to the indirect
effects as well as to the direct purposes of the union — it
would be absolutely barred ; for, in the same case, the court
declared : " A conspiracy is a substantive offence and pun-
ishable at common law, though nothing be done in execu-
tion of it." It seems, indeed, that this decision was entirely
efficient, for no cases concerning trade unions came before
the Appeal Court under this decision. But it must not be
imagined that merely because no cases against unions came
before the court there were no unions. The decision was
efficient and complete, but hardly effective. As in England,
trade unions seem to have flourished even under the shadow
of the law and to have carried on trade disputes, perhaps
not legally, but extra-legally.
It was probably because of the growing strength of the
unions, especially as political institutions, that the legisla-
ture of 1884 was compelled to recognize their existence. In
that year two bills were enacted legalizing labor unions.
The first declared that an act of a combination formed in
" furtherance of a trade dispute between employers and
workmen shall not be indictable as a conspiracy, if such act
committed by one person would not be punishable as an
offense (nothing in this section shall affect the law relat-
ing to riot, unlawful assembly, breach of peace, or any
offense against any person or against property)."^ The
second was an addition to the incorporation acts, permit-
ting the incorporation of trade unions " to promote the
well-being of their every day life, and for mutual assistance
in securing the most favorable conditions for the labor of
their members."* In this year, then, we can say, the labor
union entered the realm of law in Maryland. In this year,
also, the law concerning unionism took a different turn.
Prior to this the unions had been subject to the law of
3 Laws 1884, Ch. 266; Code 1914, Art. 2^, Sec. 40.
*Laws 1884, Ch. 267; Code 1904, Art. 23, Sec. 41. Incorporation
since 1908 takes place under the general law of incorporation, Laws
1908, Ch. 240, Sees. 2-5; Code 1911, Art. 23, Sees. 2-5.
22 THE LABOR LAW OF MARYLAND [l68
criminal conspiracy; after these acts the employers were
able to combat the unions in court merely by civil suits or
injunctions. Prior to this year, moreover, no cases involv-
ing unionism came before the Court of Appeals, so that the
Maryland law, in contradistinction to the English law, has
practically nothing to do with criminal conspiracy.
The salient principle in the Maryland law of labor unions
— and indeed in all American law on this subject — is the
right of the individual to his own property and, what is
practically identical in law, the right to freedom of contract.
There has also been evolved another right, sometimes con-
sidered a property right, the right to carry on one's busi-
ness or to work at one's trade free from outside interfer-
ence. This right is indeed a recent creation of the courts,
and, to a certain degree, an unfortunate creation. It is
broader than the right of personal freedom and was, there-
fore, useful in ruling against some of the first harsh, but
elusive, activities of the union; but there are two sides to
this right and the unions soon came to assert it on their
side. There are in every conflict between union and em-
ployer two conflicting rights. A strike is called for an in-
crease in wages or for shorter hours, what the employees
conceive to be their rights ; the employer forthwith asserts
that his freedom of contract is being abridged. A labor
union stipulates that its men shall work only in a " closed
shop," and the discharged non-union man sues for a viola-
tion of his right to work as he will. To generalize briefly
in advance, we shall find in considering strikes, boycotts,
closed shops — in short, all of the means by which a union
makes its demands effective — that "honest effort to better
the conditions of employment by the members of a labor
union is lawful,"^ though it may incidentally interfere with
the right of an individual to work on such terms as he may
see fit. If, however, the aim of the union is wilful inter-
ference with the individual, though the union may thereby
be indirectly benefited, the union is operating contrary to
5 Minasian v. Osborne, 210 Mass. 250, 96 N. E. 1036 (1912).
169] THE LABOR UNION 2$
the law. Let us first, however, consider in some detail the
law relating to the various activities of the unions.
"The right to organize and to utilize their organization
by instituting a strike is an exercise of the common law
right of every man to pursue his calling, whether of labor
or business, as he in his judgment sees fit."*^ A strike per
se is not unlawful ; it is the purpose'' or the means® which
renders it unlawful. " The law does not permit either em-
ployer or employee to use force, violence, threats of force
or threats of violence, intimidation or coercion,"^ so that it
may be said now and for all that force is unlawful ; and,
for the sake of brevity, the consideration of violence may
be dismissed from the following discussion.
The leading Maryland case on labor organizations is the
case of My Maryland Lodge v. Adt,^*^ and it will be best
to quote first from that part of the decision relating to
strikes. " Employees have a perfect right," says the court,
" both as individuals and in combination, to fix a price upon
their labor, and to refuse to work unless that price is ob-
tained. They may organize to improve their condition and
to secure better wages. They may even use persuasion to
have others join their organization. They have an unques-
tionable right to present their cause to the public in news-
papers or circulars in a peaceable way, but with no attempt
at coercion. If ruin to the employer results from their
peaceable assertion of these rights, it is a damage without
remedy." Laborers, therefore, may strike for an increase
of wages, for shorter hours, for better working conditions,
for specified methods of employment or of pay.^^ They
« Martin, Modern Law of Labor Unions, p. 36.
7 Reynolds v. Davis, 198 Mass. 294, 84 N. E. 457.
8 My Maryland Lodge v. Adt, 100 Md. 283, 68 L. R. A. 152.
e Ibid.
" Ibid.
11 It has even been held in a federal court (Delaware, L. & W.
R. R. Co. vs. Switchmen's Union, 158 Fed. 541) that workmen may
strike for such purposes even though it be in violation of their
service contract. What the court' very probably meant was that
these strikers could not be enjoined; they are clearly liable for
damages.
24 THE LABOR LAW OF MARYLAND [l?©
may, it has been held, even seek the aid of their fellow
workers in another establishment to join with them in a
sympathetic strike if the employer is striving to circumvent
the efforts of the strikers by having his work done in brother
employers' shops/- But this case, although well considered
and precise, must be confined to the exact point involved;
for a sympathetic strike, like a secondary boycott, usually
brings into the contest an uninterested third person who, if
injured, usually has a cause of action against the union.
Where there is such a community of interest as in this case,
however, a sympathetic strike is not actionable. Another
danger which must be avoided by the sympathetic strike as
well as by all other union activities is the possibility that
the union may be running counter to the contract liabilities
of a third party, for " a man who induces one of two par-
ties to a contract to break it, intending thereby to injure the
other or obtain a benefit for himself, does the other an
actionable wrong."^^ This is a fundamental rule of con-
tract law and has no special application to the law of the
labor union : it is mentioned here merely because of the num-
ber of times the union has felt its force/*
The foregoing conclusions that a strike is a legal instru-
ment of the labor tmion apply only when the disputes ars
strictly limited to the two parties concerned, the strikers
and their employer ; when a third party suffers injury, as
was intimated in discussing the sympathetic strike, the
strike stands in less favor with the courts. Unfortunately
it is a rare strike which does not directly or indirectly affect
some third person. The cause of this can readily be seen
if we consider the problem from the point of view of the
unions. The strike cannot be effective if the employer is
able to fill easily the places of the strikers with non-union
12 Iron Moulders' Union v. Allis-Chambers Co., i66 Fed. 45 ; 20
L. R. A. (N. S.) 315.
13 Gore V. Condon, 87 Md. 368, 376.
1* A few of these cases only are here cited : Garst v. Charles, 187
Mass. 144; Folsom v. Lewis, 208 Mass. 336; Iron Moulders' Union
V. Allis-Chambers Co., 166 Fed. 45.
I/l] THE LABOR UNION 2$
men. The unions strive to prevent this by picketing and by
making the union monopoHstic as to that particular class of
workmen. Again, the strike will not attain the maximum
efficiency if the standard which is obtained by the union is
continually undermined by the cut-throat competition of
non-union men in the same shop. The unions fight against
this evil with the instrument of the closed shop. Again, the
strike will often fail entirely if other employers or dealers
trade in their normal manner with the tabooed employer.
To offset this, the union has evolved the boycott, or more
correctly in the technical economic phrase, the secondary
boycott. But, before considering any of these more ad-
vanced forms of union activity, it will be first necessary to
consider one more form of strike, a rather more advanced
and more involved form of this particular activity which
might be called a cross between the strike and the closed
shop. It is a strike, not to procure an immediate advantage,
as, for example, a raise of wages, but to strengthen the
union by dictating to the employer certain terms of employ-
ment for all men in his shop. A Maryland case will illus-
trate.
In Lucke v. Clothing Cutters' Assembly^^ the appellant,
a non-union man, had had permanent employment termin-
able at will with the New York Clothing House. He was
objected to by the appellee, who notified the clothing house
that they objected to working with non-union men. Lucke
applied for membership in the union ; but, because of the
lack of employment among its then members, the appellee
refused him membership. Later the union sent notice to
the employer that, if Lucke were not discharged, it would
notify through its official organ all labor organizations of
the city that "the house was a non-union one." Feeling
that it was threatened with a boycott, though during the
trial the union denied that this was its intention, the New
York Clothing House discharged the appellant, who later
^^yy Md. 396; 19 L. R. A. 408 (1893).
26 THE LABOR LAW OF MARYLAND [172
brought suit against the union for damages. The court held
that Lucke was entitled to damages since the union had in-
terfered with his right of property and freedom of contract.
This interference may have indirectly benefited the union,
but it wilfully and directly injured the individual in one of
his fundamental rights ; and the court said :
" It is not necessary that such interference [of the union
with a laboring man's privilege of seeking an honest liveli-
hood] should have been malicious in its character. ... In
this case we think the interference of the appellee was in
law malicious and unquestionably wrongful . . . and, by so
doing, it [the appellee] has invaded legal rights of the ap-
pellant for which an action properly lies.
"When the state granted its generous sanction to the
formation of corporations of the character of the appellee
(Code 1904, Art. 23, Sec. 37) it certainly did not mean
that such promotion (of the well-being of their every day
life and for mutual assistance in securing the most favor-
able conditions for the labor of their members) was to be
secured by making war upon the non-union laboring man,
or by any legal interference with his rights and privileges.
The powers with which this class of corporations are
clothed are of a peculiar character, and should be used with
prudence, moderation and wisdom, so that labor in its or-
ganized form shall not become an instrument of wrong and
injustice to those who, in the same avenue of life, and some-
times under less favorable circumstances, are striving to
provide the means by which they can maintain themselves
and their famihes."
To understand more thoroughly the significance of this
case let us look at one apparently opposed to it, that of
Pickett V. Walsh," in which was held legal a strike to en-
force an agreement between a bricklayers' union and a con-
tractor, by which the union agreed to work for the contrac-
tor if he would employ its members to perform some tasks
16 192 Mass. 572; 78 N. E. 753; 6 L. R. A. (N. S.) 1067 (1907).
173] '^^^ LABOR UNION 2/
closely allied to, but less skilled than bricklaying. The
court differentiated between these two cases on the ground
that the strike in the latter case was on a matter directly
concerning the two parties to it, the strikers and the em-
ployers, and that the laborers were striving directly to im-
prove their own conditions. This distinction seems to have
been generally followed," but in discussing this question
some of the finest legal reasoning has been used. The
tendency seems to be to find a community of interest among
the strikers and between them and their brother unionists
who are not actively engaged in the strike, but for whose
benefit the strike is declared, and, on the whole, the trend
seems to be towards holding legal strikes aimed at securing
these competitive advantages for union laborers. The dis-
tinction, however, is still good between mediate and imme-
diate quarrels and will certainly be used in hard cases where
justice seems to demand it.^®
If the tendency has been towards increasing the rights
and powers of trade unions in securing the privileged em-
ployment of its own members, the absolute contrary has
been true with respect to the legality of picketing. Labor
unions, in fact, have suffered to a great degree because of
of injunctions restraining them from posting members on
the environs of the place of strike to persuade strike-
breakers not to take employment in the hostile shop and
to obtain information as to the employer's activities. Pick-
eting, it is true, was far from being such a milk-and-water
affair twenty-five years ago as it is now ; it was in this ac-
tivity, perhaps, that the trade unions showed their ugliest
side and incurred the ill-will of the public. This popular
estimate seems to have been reflected to a great degree in
the courts, which, beginning by merely discountenancing
picketing that was contrary to public order, have come to
1' E. g., National Fireproofing Co. v. Mason Builders' Ass'n, 169
Fed. 256, 26 L. R. A. (N. S.) 148; and Meur v. Speer, 32 L. R. A.
(N. S.) 792 (Ark.).
18 For a fuller discussion see note in 6 L. R. A. (N. S.) 1067.
28 THE LABOR LAW OF MARYLAND ['74
look Upon almost all picketing as enjoinable, if not abso-
lutely criminal.
A general declaration of the law was given in the case of
My Maryland Lodge v. Adt:^** "They (the union laborers)
may even use persuasion to have others join their organiza-
tion.^^ They have an unquestionable right to present their
cause to the public in newspapers or circulars in a peace-
able way. , . . But the law does not permit either employer
or employee to use force, violence, threats of force or
threats of violence, intimidation or coercion." The trouble-
some question has been, what is intimidation and coercion?
Thus mere argument, where the odds were four or five to
one in favor of the arguers, has been said to constitute un-
lawful intimidation. 2^ Peaceful picketing, which inci-
dentally interfered with customers patronizing the picketed
shop, has been enjoined.-^ A fair statement of the law is
contained in the following : " The very fact of establishing
a picket line is evidence of an intention to annoy, embar-
rass and intimidate, whether physical violence is resorted
to or not. There have been a few cases where it was held
that picketing by a labor union is not unnecessarily unlaw-
ful if the pickets are peaceful and well behaved ; but, if the
watching and besetting of the workmen is carried to such
a length as to constitute an annoyance to them or their em-
ployed, it becomes unlawful. ... To picket . . . was in
itself an act of intimidation and an unwarrantable interfer-
ence with the employer's rights." Even if pickets are not
guilty of intimidation, " the complainants are entitled to pro-
tection."^^ The Maryland law would seem to go quite as
far as this Illinois case, for, in spite of the rather liberal
language just quoted from the Adt case, the court in that
19 loo Md. 283 ; 68 L. R. A. 752-
20 See, however, Hitchman Coal & Coke Co. v. Mitchell et al., 38
Sup. Ct. 65 (1917).
21 Allis-Chambers Co. v. Iron Moulders' Union, 150 Fed. 155.
22 Foster v. Retail Clerks' Intern'tl Protective Ass'n, 78 N. Y. S.
860.
23 Barnes v. Chicago Typographical Union, 232 111. 421 ; 14 L. R.
A. (N. S.) 1018.
1/5] THE LABOR UNION 29
case upheld an injunction which practically forbade all
picketing, even for purposes of information only. It would
then seem that picketing has been in law practically plucked
of its stings : picketing can perhaps be safely used only as
a means of procuring information. This would indeed be
a hard blow at unionism if it were not for the fact that an
employer will not usually combat in the courts peaceful
picketing unless it is used in conjunction with an unlawful
strike or boycott. As a practical matter it may then be said
that peaceful picketing as an adjunct of any other lawful
activity of a union is not likely to lead to any action at law.
If used in its really civilized form this most powerful
weapon of struggling unionism may be still of avail in in-
dustrial disputes.
Thus far we have been considering the union mainly as
a body of workingmen ; it has another aspect, that of a
body of consumers ; and it is upon this quality of its mem-
bership that the union relies in the activity usually known
by the name of the boycott. In its conflict with the em-
ployer the boycott is a frequent weapon of the union. In
itself, as will be seen, it is not a very efficient weapon ; but
in conjunction with the strike, with which indeed it is gen-
erally used, it often enables the union to achieve what an
unaided strike might not have attained. There are two de-
grees of the boycott, primary and secondary ; but the courts
do not seem to observe the distinction, some including the
two classes under one head, others limiting the two classes
at entirely different points, and a great number having ref-
erence to the second class alone when they speak of the boy-
cott. The primary boycott is the act of a combination of
individuals who agree among themselves not to patronize a
certain dealer. The secondary boycott is the act of a com-
bination which tries to economically outlaw a certain dealer
by intimidating third parties, either by strike or boycott, to
prevent them from patronizing this dealer. Assuming the
object of the boycott to be legal, the primary boycott is gen-
30
THE LABOR LAW OF MARYLAND [176
erally a legal activity of the union, whereas the secondary
boycott is quite as generally deemed illegal.
In Maryland we have a leading case on this subject, and
it may be well to consider it specifically. The case, My
Maryland Lodge v. Adt,^* is one of secondary boycott, but
the court laid down some additional law of utmost impor-
tance. Adt, upon refusing an increase in wages, had been
struck against. Further, the union sent circulars to the
brewers who were in the habit of contracting with Adt for
machinery asking them to boycott Adt on the ground that
he no longer had a union shop. Upon failure of the brew-
ers to meet this request, the union circulated "unfair"
broadsides against them; and in self defense the brewers
were compelled to withdraw their patronage from Adt,
whose business was thereby practically ruined. On these
facts the Court of Appeals upheld an injunction against the
union, and declared such methods of warfare manifestly
unfair and actionable. The court in this case merely held
illegal the secondary boycott; but some of its language is
so loose that it may be possible to interpret it as declaring
all boycotts illegal, especially as the court makes no dis-
tinction between the two classes of boycott. It is submit-
ted, however, that if the court was referring to the primary
boycott per se, its stand is hardly justified.
The distinction, indeed, between the two classes of boy-
cott has, as was intimated, been sustained by the great
weight of authority.'^^ An individual has a right to bestow
his patronage where he wishes; and the mere fact that he
combines with others in carrying out his purpose does not
make the act prima facie actionable. To make it illegal
there must be in the object or means of the primary boy-
cott some malicious purpose, as the injury of another with-
out any direct benefit to those engaged in the boycott. The
24 100 Md. 238; 56 Atl. 721 ; 68 L. R. A. 752 (1905).
25 See American Federation of Labor v. Buck's Stove & Range
Co., 33 App. D. C. 83; 32 L. R. A. (N. S.) 748; and note on this
case in L. R. A.
177] THE LABOR UNION 3 1
primary boycott being in itself lawful, any publication in
furtherance thereof, if that is the purpose of the publi-
cation and no intimidation or coercion is intended, would
also be lawful ;^^ but here again, as in the question of pick-
eting, the courts are prone to see intimidation in any pub-
lication, with the result that the unions must be most care-
ful in their use of legally recognized weapons. If, then, it
is dangerous to publish unfair lists in primary boycotts, it
is of course an absolute infringement upon the rights of
another to publish such a list in pursuance of a secondary
boycott.
It is needless and would be indeed useless to enter here
into a detailed investigation of what has been held illegal
boycott. The rule seems to be that if a third party has
been drawn into the controversy between the two contend-
ing factions, then the boycott is a secondary boycott and
he against whom it is being prosecuted may recover for his
damages.^'' This, although it seems to be well-settled law,
involves an inconsistency. Take, for example, the Adt case :
employees strike for increase of wages and in pursuance of
that strike for a perfectly lawful purpose institute a boy-
cott against the employer. In the Adt case there was some
question as to the legality of the means used to enforce the
boycott, but that does not seem to have influenced the de-
cision. Then, granting the legality of the strike, why should
it be illegal to enlist the sympathies of third persons who
deal with the employer? If these third persons are injured,
26 See note in 32 L. R. A. (N. S.) 1017; and cases cited there,
mostly New York cases.
27 Thus it has been held that " a combination of employees to
compel their employers, by threats of quitting and by actually quit-
ting their service, to withdraw from a mutually profitable relation
with a third person having no effect on the character or reward of
the employees' services, for the purpose of injuring such third per-
son, is a boycott and an unlawful conspiracy." (Thomas v. Cinn.
etc. Ry. Co., 62 Fed. 803) ; and that it was illegal for a union to
boycott an employer of non-union labor by refusing to work for
another employer who furnished him with supplies. [Burnham v.
Dowd, 104 N. E. 841 (Mass.).] There are innumerable cases on
this subject, generally decided on a question of fact.
32 THE LABOR LAW OF MARYLAND [178
are coerced into the boycott, they have their redress in the
courts against the union. But why should the employer be
entitled to plead in a controversy between himself and the
union the injury of these third parties, who themselves do
not complain? The employer, it is true, is injured, but he
is injured in the course of fair competition between himself
and the union, and it is damnum absque injuria. If we
grant that a strike legally pursued is justified to raise wages,
a boycott for the same purpose, as long as no third person
complains, would seem equally justifiable, and the employer
should not be heard to voice a third party's injury in pro-
tection of himself.
Perhaps the real explanation of the courts' antagonism
to the boycott is to be found in their fear of its potentiali-
ties — for it is one of the most efficient weapons of the union.
But if this explanation is true, the courts are certainly
guilty of a wrongful invasion of the legislative dom.ain and
the explanation is merely a confession of this.
Closely connected with the boycott and apparently a much
more effective means of enforcing the boycott is the fre-
quently occurring rule of a labor union forbidding its mem-
bers to handle non-union material, that is, material pre-
pared by non-union men. It has been held that the union
may under conditions issue such a rule. Where the object
of a labor union or the purpose of its action under this rule
is principally to injure another or his property, the agree-
ment forming the union is unlawful ; but where the pur-
pose is only to advance the interests of the members 6f the
union the union is not illegal and such rules may legally
be enforced. ^^ Here, again, the distinction crops up be-
tween the " mutual advantage " of the laborers and the
malicious injury of another. "So long as the motive [of
the rule] is not malicious, the object not unlawful nor op-
pressive, and the means neither deceitful nor fraudulent,
28 Bossert v. Brotherhood of Carpenters and Joiners of America,
137 N. Y. 321; Gill Engraving Co. v. Doerr, 214 Fed. iii.
179] "^^^ LABOR UNION 33
the result is not a [illegal] conspiracy, although it may
necessarily work injury to other persons, "^°
The distinction between this rule and the boycott is not
easy to perceive at first blush. The courts have distin-
guished it upon the ground that the rule was laid down
before any difference arose between the employer and the
union, and that hence it might impliedly have entered into
the service contract. Moreover, as stated above, the courts
have recognized the direct interests of the laborers in the
rule ; and, finally, the quarrels have been directly between
the employer and the union, the boycotted dealer did not
enter into the consideration. This method of boycotting is
naturally only applicable in well-organized trades with a
stable membership, and the older and more stable unions
have to a great extent made use of it. It would seem one
of the most effective instruments that the unions can use ;
for, not being tainted with the ancient obloquy of trade
unions, the courts have been more liberal in their attitude
toward it.
Precisely corresponding to the boycott, but issuing from
the other party to the controversy, is the blackhst. It is a
weapon that employers have been fond of using against the
strike. As such it would seem to have generally been held
legal. That is, if the employer of the shop which is the
object of the strike should distribute to his brother employ-
ers, who are associated with him in trade agreements, a
list of his striking employees with the intention that these
other employers should refuse the strikers employment in
their shops, the courts would almost certainly hold such a
blacklist lawful. But it is practically impossible to be abso-
lutely certain how far the courts will go in holding any
blacklist lawful. They are here confronted with the same
conflict that has been evident in all the law of union activi-
ties, the conflict of the right of the employers to carry on
their business as they see fit and the right of the employees
29 National FireproofinR Co, v. Mason Builders' Ass'n. 169 Fed.
256, 26 L. R. A, (N. S.) 148,
34 THE LABOR LAW OF MARYLAND [l8o
to the free use of their laboring powers. As was said in a
recent Maryland case, "neither [the employer nor em-
ployee] has the right to interfere, without cause, with the
business or occupation of the other."^° And the courts, it
would seem, are more opposed to the combination mani-
festing itself in the blacklist than they are to the combina-
tions of laborers against laborer. We have seen in our con-
sideration of strikes directed against the non-union work-
ingman, how eager the courts are to protect the laborer
against the combination, but they have been somewhat re-
strained by the fact that the two competitors are in the same
economic position. The blacklist, however, represents a
combination of economically strong employers functioning
to deprive a workman of his only means of livelihood. It
is natural that the courts should be more prone to condemn
the blacklist than a combination of workingmen.
The blacklist, nevertheless, does not always offend the
courts. As a counter-weapon to the strike, as has been
said, the blacklist is a proper thing. On the other hand, if
the list circulated among the employers is tinged with slan-
der, the workingman has naturally a clear right of action
against the employers. In between these two extremes, it
is often difficult to classify a blacklist. " Any malicious in-
terference with the business or occupation," as our Court
of Appeals has said, " if followed by damage, is an action-
able wrong."^^ This is a safe enough guide where actual
malice, or malice in fact, is evident in the case, as it was
in our Maryland case ; but the concept of malice in law,
though often used by the courts in their reasoning in black-
listing cases, is no longer of much practical use because of
its extreme elasticity. It would, perhaps, be sufficiently
correct to say that when a blacklist is used against striking
employees or to gain a legitimate interest of the employ-
ers, it is legal, but when it is used merely as a disciplinary
30 Willner v. Silverman, 109 Md. 341 ; 71 Atl. 063 ; 24 L. R. A.
(N. S.) 895 (1910).
31 Ibid.
l8l] THE LABOR UNION 35
measure against an employee and to attain no advantage
for the employer, it is an actionable tort against the indi-
vidual workingman. That, at least, is the Maryland law.
This careful regard of the courts for the welfare of the
individual is not directed strictly towards the unions, and
is, therefore, perhaps not appropriate in this place ; but so
intimately is the blacklist related as a counter measure to
the strike and boycott that the unions have really been
much strengthened by this judicial curtailment of the em-
ployer's powers. It seems, in most cases, that the decrees
of the courts have been adequate enough for the protection
of the laborers, but the public has not been — or, perhaps,
it is more correct to say, the unions have not been — suf-
ficiently satisfied with this judicial protection; and in many
states laws have been passed prohibiting employers from
circulating blacklists. Innocent information is not prohib-
ited, so that these statutes have uniformly been held con-
stitutional. Maryland has no such statute, but from the
tendencies of the court in the case of Willner v. Silver-
man^^ such a statute if it could be made effective would
seem desirable, especially from the union standpoint.
At the possible risk of digression, I want to call attention
here to perhaps the greatest encouragement that has yet
been extended to unionism by legal enactment. With no
special reference at present to Maryland law, it is yet in-
dicative of a tendency in the law which may at some future
time be realized. There have been several state statutes
and one federal statute relating to interstate commerce
which have declared criminally illegal the discharge or
threatened discharge of employees because of membership
in any labor organization. Practically all of these statutes
have been held unconstitutional as depriving the employer
of the right of contract without due process of law ; but in
the Supreme Court^^ three forcible dissenting opinions
82 Ibid.
33 Adair v. U. S., 208 U. S. 161 ; 52 L. ed. 436; and see note in this
edition on State cases ; Coppage v. Kansas, 236 U. S. i ; 59 L. ed. 441.
36 THE LABOR LAW OF MARYLAND [182
were filed against this position, the one by Justice Holmes
in the earlier case in particular being most suggestive of
future modifications of the severity of the doctrine under-
lying the majority opinion.
The closed shop contract is the highest attainment of
trade unionism. It is still a method, a means to an end,
but it smacks more of the ultimate desideratum than do
any of the other activities of the unions. Once the closed
shop is attained in an industry, collective bargaining has
achieved its most valuable guarantee; and collective bar-
gaining is a primary goal of unionism. Unions, according
to their advocates and publicists, are striving, not for the
elevation of the workingman above his rightful economic
condition, but for the absolute equality of the laborer with
the capitalist and the landlord as a claimant in distribution.
All the phenomena of unionism which we have considered
are indications of this ambition — the strike and boycott, the
weapons of the militant, struggling union ; the agreement
against non-union material, a defense of the victorious
union; and the closed shop, the security of the old and
firmly established union. It is therefore obvious that the
law of the closed shop agreement — more often an agree-
ment than a formal contract — will be somewhat different
from that of the other methods of unionism. Yet, in study-
ing the agreement against non-union materials and the
strike against the non-union workingman, a foundation has
been laid down.
The law seems to be that an agreement between one em-
ployer and a labor union that he will employ only such
laborers, members of that union, as the union shall specify
is completely enforceable. Equally unenforceable is an
agreement on the same point between all the branches of
a labor union within a certain territory and all the em-
ployers of that trade within the same territory.^* Between
these two extremes lies the debatable ground. It is as-
sumed, of course, in this discussion that the benefit of the
3* McCord V. Thompson-Starrett Co., 198 N. Y. 587 ; 92 N. E. 1090.
183] THE LABOR UNION 37
agreement is material to the two parties and that there is no
malice. The law as to this has been sufficiently threshed
out.^^ The law, then, with respect to the closed shop agree-
ment is precisely that of the common law of contracts in
restraint of trade, that of conspiracies in unreasonable or
indirect restraint of trade. Where the agreement between
the employer and the union is too monopolistic within too
comprehensive a territory — of course much smaller than the
unreasonable district in trade monopolies — the agreement is
an unreasonable restraint upon the individual's freedom of
contract and the competition of the non-union laborer is
too completely stifled. This is the opinion of the courts. In
the eyes of the economist — and the argument seems sound
— a trade union with complete monopoly of the labor in its
district is the acme of perfection of competition, of com-
petition among the elements of production.
The courts seem to have been led into this distinction as
to extent of monopoly in a rather haphazard manner, if
not absolutely against their will. The law of the closed
shop has been most fully developed in New York. In the
earliest case^^ the court held invalid a contract between a
brewers' association and a labor union providing that no
employee of the association should be allowed to work for
longer than a specified time without becoming a member
of the union. In the second case,^^ after several appeals
and reversals, the court held valid a contract between an
employer and a labor union providing for an absolutely
closed shop. In this case the court specifically stated that
the early case was not overruled. The critics immediately
emphasized the conflict. The only way of resolving the
conflict was to develop the distinction between the single
employer in the enforceable agreement and the association
3s Cases concerning the closed shop in which this point is devel-
oped are: Berry v. Donovan, 188 Mass. 353; 5 L. R. A. (N. S.) 899;
Kissan v. U. S. Printing Co. of Ohio, 199 N. Y. 76; 92 N. E. 214;
Hoban v. Dempsey, 104 N. E. 717 (Mass.).
3« Curran v. Galen, 152 N. Y. 33; 37 L. R. A. 802 (1897).
"Jacobs V. Cohen, 183 N. Y. 207; 2 L. R. A. (N. S.) 292 (1905).
38 THE LABOR LAW OF MARYLAND [184
in the unenforceable. This distinction was developed in
subsequent cases, and has been accepted as the rule in cases
in other states.^^ Naturally, what is lawful in this respect
for the labor unions is lawful for the employers, and there
are several cases in which open shop agreements between
employers aimed directly at the unions have been held
legal.^®
It might be profitable to present a brief and concise
resume and to draw some conclusions from the Maryland
law of labor combinations before proceeding to the specific
statutes which are based upon or closely allied to the exist-
ence of labor unions. Since the statute of 1884 labor or-
ganizations are not per se conspiracies. An act which is
lawful for an individual is therefore perfectly lawful for
a union to undertake, with the one possible exception, most
apparent in the law of picketing, that in certain circum-
stances numbers themselves may be a menace to the peace
of society. However, there is growing up in the law of
torts a theory which is finding great application in labor
cases that an act, though conducted for perfectly legitimate
ultimate ends and in a perfectly lawful manner, may yet be
actionable if immediately inspired by an improper motive.
Thus a strike lawfully conducted to strengthen the union
may still constitute a tort against a non-union man if its
motive is to secure his discharge. On this proposition of
law is based the rule that the activities of labor organiza-
tions must have the direct purpose of improving the wel-
fare of the members of the association, and may only inci-
dentally, indirectly and perhaps unsubstantially affect a
third uninterested party.
But these generalities do not help us much to appreciate
the trend of the Maryland decisions. The law of the union
is in its present state of uncertainty because of conflict of
»8 Connors v. Connoly, 86 Conn. 641, 45 L. R. A. 564; and note in
L. R. A.
39 Hitchman Coal & Coke Co. v. Mitchell, 172 Fed. 963 ; Goldfield
Consol. Mines Co. v. Goldfield Miners' Union, 159 Fed. 500.
1 85] THE LABOR UNION 39
two generalities : " improving the welfare of the members "
and the indirectness with which the interest of a third party
is affected. The courts until very recently have been in-
clined by their training, by their leaning in the direction of
the individualistic philosophy of freedom, towards protect-
ing the rights of the third party, no matter how incidentally
they may be infringed upon. It is fair to say that they did
not truly understand the significance of unionism, the at-
tempt to secure economic equality by strengthening the bar-
gaining power of the laborers. Maryland law, of which the
last case was decided in 1909, is still in this stage. In the
Lucke case the court recognized no rights of the union to
secure employment for its own members, but considered
merely the technical right of the individual. In the Adt
case the court might have justified its decision on certain
forcible methods of the union, but it contents itself with
unconditionally outlawing the boycott no matter what the
actual economic conditions may be. Precedent is still su-
preme. In the Willner case, the last word on the subject,
the court might possibly be said to have taken subconscious
cognizance of economic forces, but in reality the decision
in favor of the unions was reached by purely individualis-
tic reasoning. It may be hoped in view of certain tendencies
manifesting themselves in other lines of decisions that the
Court of Appeals will in its next union case take a broader
view of the province of law, but as the decisions now stand,
though the results in all these cases are perhaps justifiable,
the law is not in a satisfactory condition and Maryland does
not deserve a position with the more advanced states.
Statutes Relating to Unionism. — The union label is now
recognized as one of the useful, if not necessary, instru-
ments of organized labor. The law on the subject is rather
difficult and the decisions most conflicting; but the Mary-
land legislature of 1892 has relieved us of the necessity of
anything more than a cursory sketch of the unwritten law.
In the earliest cases the union label was defended by its
advocates as a trade-mark. The majority of decisions, how-
40 THE LABOR LAW OF MARYLAND [l86
ever, held that inasmuch as the union is not the owner,
manufacturer or seller of goods to which the label is at-
tached, the label is not a valid trade-mark nor entitled to
protection or registration as such.*° Rebuffed by the com-
mon law courts, the unions strove in equity proceedings to
enjoin the counterfeiting and unauthorized use of the label.
Here they were more successful, the courts viewing the
label as union property. The courts declared that the con-
cept of property should not be fixed, but progressive, de-
veloping with the growing society. Surely, therefore, the
label is property. Witness the reasoning in a Maryland
case in a lower court:
"The object and effect of this label, as used by plaintiffs
on their associates, is to increase the value of their labor.
... It will not be denied that every freeman has a prop-
erty right in his own labor. . . . From this broad principle
it is easy to develop the particular proposition, that an asso-
ciation of men who combine for the purpose of increasing,
by legitimate means, the general demand for their common
labor, have a property right in whatever lawful instrumen-
tality they can succeed in creating and controlling for that
purpose.
"If the combination for that purpose be legitimate, and
the label itself as used be a lawful instrumentality and con-
tains no fraudulent misrepresentation, the label is entitled
to the recognition of a court of equity as a property right,
and any fraudulent imitation of it will be suppressed."*^
The reasoning here employed is valid and convincing, but
nevertheless this opinion is in conflict with most courts of
the country which have refused to view the label as prop-
erty in the absence of statute.
, Not satisfied with this tendency in the Maryland law —
for, of course, it was not authority since the case did not
reach the Court of Appeals — the unions caused the enact-
*o See Martin, Law of Labor Union, pp. 423-429, for a more de-
tailed discussion with references.
<i Cigar Makers' Union of Balfo. v. Link. Baltimore Circuit
Court, 1886; reported in 29 L. R. A. 202, note.
187] THE LABOR UNION 4 1
ment of the law referred to above, legalizing and protect-
ing union labels.*^ The first section declares that " when-
ever any . . . union of workingmen have adopted, or shall
hereafter adopt for their protection any label . . . announc-
ing that goods to which such label . . . shall be attached,
.were manufactured by a member or members of such union,
it shall not be lawful for any person or corporation to coun-
terfeit or imitate such label ;" and following sections de-
clare such counterfeiting a criminal proceeding, enjoinable
by courts of equity, and cause for damages. Registration
of the label is also provided for. No case seems to have
arisen under this statute ; but in other states similar statutes
have been attacked as class legislation, but without excep-
tion they have been upheld.*^
There is, moreover, on the statute books a law which was
passed in the interests of, if not as a direct political plum
.for, the labor unions which is absolutely and undeniably
unconstitutional. It is the law^* which directs the "public
printer " to affix to all public printing the label of the Inter-
national Typographical Union. Precisely similar ordinances
and acts have been held unconstitutional in many Western
States as in clear violation of the guarantee by the Four-
teenth Amendment to the federal Constitution of the secur-
ity of property under the due process of law clause.*^
, The final problem which the state has to solve with ref-
erence to unionism may under certain conditions become
the most important of all. It is the reconciliation of the
two quarrelling factions in any labor dispute or the pre-
.vention of the dispute itself. There are two main classes
into which legislation of this sort falls, arbitration and con-
ciliation, and each of these is again sub-divided into com-
pulsory and voluntary methods.
, In arbitration both sides, labor and capital, appear before
*2 Acts 1892, Ch. 357 ; Code 1912, Art. 27, Sees. 50-55.
■*3 See note in 39 L. R. A. (N. S.) 1190.
** Code 1911, Art. 78, Sec. 9.
*5 See Miller v. Des Moines, 23 L. R. A. (N. S.) 815 (Iowa), and
note.
42 THE LABOR LAW OF MARYLAND [l88
an arbitral board, usually, though not always, composed of
a representative of each contestant and a non-partisan chair-
man, and present their case. The board deliberates and
hands down a binding decision. If reference to an arbitral
board is compelled by the State, the arbitration is compul-
sory ; if reference to the board is dependent upon the agree-
ment of the parties to the dispute, the arbitration is volun-
tary. Purely voluntary arbitration is rarely found in present
day statute books, for it has been found that state activity
is entirely unprofitable in this method of industrial peace.
Compulsory arbitration has been tried in Australia with
varying results in the different states. It suffers from the
fact that there is no settled theory of wages discovered as
yet upon which the board can render its decision, which
must accordingly be a compromise, a result not too favor-
able to the principle of collective bargaining. Compulsory
arbitration would possibly be unconstitutional in the United
States.*"
Midway between arbitration and conciliation as a means
of industrial peace is a hybrid form of endeavoring to force
peace by an impartial investigation of the dispute and a
full publication of the results of the investigation, both
facts and conclusions. By providing publicity, this method
seeks to inform public opinion of the true state of affairs,
and by directing it against one contestant, to compel this
contestant to yield in the controversy. This method usually
occurs in legislation in company with voluntary arbitration
or conciliation and smacks a little of each of these. It dif-
fers from the compulsory methods in that it relies upon
the force of public opinion rather than on the physical sanc-
tion of the State. Properly administered it should be
effective.
Compulsory conciliation, or perhaps more correctly com-
pulsory investigation, is a logical development of the
method of publicity. It seeks to prevent industrial unrest
^ <8 See, however, Wilson v. New (decided March 17, 1917) as lend-
ing some credence to the contrary view.
189] THE LABOR UNION 43
rather than to reconcile two contending parties. As suc-
cessfully employed in Canada, workmen and employers
before declaring a strike or lock-out must appear before a
conciliation board and state their case in full. This board
then gives its decision and award which, however, is not
binding upon either party: the strike or lock-out may be
consummated as though there were no decision. The find-
ings of the board have, however, been meanwhile pub-
lished, and public opinion is relied upon to prevent the
party to whom the decision was adverse from carrying out
its intent to strike or lock out. This scheme seems the one
most suited to an American State and its success in Canada
testifies to its worth.
The Maryland laws belong to the class of voluntary arbi-
tration laws and one of them has the added provision for
an impartial investigation. The first law,*^ passed in 1878,
although it does not explicitly refer to strikes, provides that
'' whenever any controversy shall arise between any corpor-
ation incorporated by this State in which the State may be
interested as a stockholder or creditor, and any person in
the employment of such corporation, which, in the opinion
of the board of public works, shall tend to impair the use-
fulness or prosperity of such corporation, the board of pub-
lic works . . . shall have the riglit to propose to the parties
to said controversy that the same shall be settled by arbi-
tration " ; and, upon the consent of the parties to the arbi-
tration, the board is given the power to make a conclusive
award. This law is only of antiquarian interest and, as far
as I have been able to ascertain, has never been made use
of in a labor dispute. It is of the most inadequate type of
this kind of legislation.
The present law was first enacted in 1904, but was radi-
cally amended by an addition in 1916.*^ The early law
gave to the then Chief of the Bureau of Statistics and In-
*'' Laws 1878, Ch. 379; Code 1912, Art. 7.
"Laws 1904, Ch. 671; Code 1911, Art. 89, Sees. 3-11, as amended
by Laws 1916, Ch. 406.
44 THE LABOR LAW OF MARYLAND [19O
formation power to mediate, arbitrate or investigate.
Thoug'h still on the books, the provisions of this law have
been repeated in a form so much more efficient in the 1916
amendment that the early law should be practically super-
seded. No description of this amendment could be more
clear or concise than the text itself.
" It shall be the duty of the State Board of Labor and
Statistics to do all in its power to promote the voluntary
arbitration, mediation and conciliation of controversies and
disputes between employers and employes, and to avoid re-
sort to lockouts, boycotts, blacklists, discriminations and
legal proceedings in or arising out of such controversies and
disputes and matters of employment. In pursuance of this
duty, the said board may, whenever it deems advisable, but
subject to the approval of the Governor, appoint boards of
arbitration for the consideration and settlement of such con-
troversies and disputes, and may provide for the necessary
expenses of such arbitration boards, and for such reason-
able compensation to the members serving thereon as the
said board may deem proper, not exceeding, however, the
sum of five dollars per day for each member for each day
during which such member is engaged in work upon said
arbitration boards. The said board shall prescribe rules of
procedure for such arbitration boards, and the said arbitra-
tion boards shall have the power to cotiduct investigations
and hold hearings, to summon witnesses, and enforce their
attendance through the ordinary processes of law in the
cities and counties in which such arbitration boards may
meet, subject to all the penalties for non-attendance to
which witnesses in ordinary civil cases are subject, and in
like manner may require the production of books, docu-
ments and papers and may administer oaths, all to the same
extent that such powers are possessed and exercised by the
civil courts of the State; and said arbitration boards shall
make, report and publish findings for the settlement of such
controversies and disputes. The said Board of Labor and
Statistics shall itself have like power to conduct investiga-
ipi] THE LABOR UNION 45
tions and hold hearings, summon and enforce the attend-
ance of witnesses, administer oaths, require the production
of books, documents and papers, and make and pubhsh re-
ports and findings with respect to any and all matters cov-
ered by this section. Subject to the approval of the Gover-
nor, the board may appoint and designate a deputy, and fix
his compensation, who shall be known as the chief mediator,
and who, together with any assistants who may be assigned
by the board, shall have in charge the execution of the pro-
visions of this section, under the direction and supervision
of the board. The chief mediator may act upon any board
of arbitration, but in such event he shall receive no com-
pensation therefor in addition to his ordinary salary." This
law, providing as it does for arbitration, and if that fails
for investigation and publication with very efficient means
of administration, is about as good a law as could be hoped
for. It might be argued, and the author does believe, that
compulsory conciliation would be a more effective means of
industrial peace, but the law as it stands is adequate. If it
fails in its purpose, it will be because of the inevitable weak-
ness of a law depending on public opinion for its sanction
or because of a slackness in its administration.
CHAPTER III
The Workmen's Compensation Law
History. — The Workmen's Compensation Law occupies a
peculiar place in the study of the labor law. It differs from
the law considered in the last chapter in that it is the result
of a definite policy of state activity and is not a growth of
the common law. It differs from the statute law, which
will be the subject of the following chapters, in that it is
not an addition to, but an amendment of the common law.
It is the only instance we have in the field of Maryland
labor law of a deliberate wholesale repeal of a whole sec-
tion of common law principles which were conceived to be
antiquated and unsuited to modern industrial conditions,
and the substitution for them of a new statutory system of
law.
Maryland's experience with workmen's compensation
laws has been peculiar and somewhat disconcerting. It was
the first State in America to adopt this now almost univer-
sal social legislation, but it was decidedly not in the van in
adopting a really satisfactory law, if indeed the present
law is entirely satisfactory. Its priority in the field is per-
haps explained by the horribly inequitable degree to which
its law of master and servant, especially the harsh doctrines
of assumption of risk and fellow-servant negligence, had
developed.
The first act of 1902,^ " conceived in ignorance and quickly
forgotten," was an act to create a Cooperative Insurance
Fund. The law was limited in scope, applying only to
"coal or clay mining, quarrying, steam or street railroads
. . . and any incorporated town, city or coimty engaged in
the work of constructing any sewer, excavation or other
1 Laws 1902, Ch. 139,
46
193] "^^^ workmen's compensation law 47
physical structure, or the contractors of any such town,'*
etc., an estimated coverage of about ten thousand employ-
ees.^ The act was what may be called a pseudo-elective
compensation scheme, which will be treated at greater
length in the following section. It provided that the em-
ployers covered should be liable for " death or injury caused
by the negligence of the employer or by that of any servant
or employee of such employer " unless they contributed to
the insurance fund which was provided for by the statute.
Half of these contributions, the amounts of which were set
forth in the act, might be deducted from the wages of the
employees. The only insurance provided was a benefit of
one thousand dollars for the death of every employee oc-
curring " in the course of employment and by causes aris-
ing therein." No provision was made for compensation for
permanent or temporary injury, and in this respect the
workman seemed worse off than before the passage of the
law. The only principle of compensation which seems to
have been accepted in full was the liability of the employer
for the faults of his employees. The law was of question-
able value as a piece of social legislation ; its real value was
as an opening wedge for future enactments.
This act remained in force for nearly two years, during
which time it seems to have been well administered, though
only five death benefits were paid out of it. The fund was
protected from insolvency by the mutual insurance feature
which was borrowed from Germany — practically the only
sound feature which was obtained from the extensive ex-
perience of European countries. In 1904, however, in a
case in the Court of Common Pleas of Baltimore City' —
the act never came before the Court of Appeals — the law
was held unconstitutional, not as abrogating the constitu-
tional rights of the employer, as we would generally expect
to-day, but as denying to the employee a jury trial when he
2 See G. E. Barnett in 16 Quarterly Journal of Economics, p. 591.
3 Franklin v. United Railways and Electric Co., reported in the
Daily Record for April 29, 1904.
48 THE LABOR LAW OF MARYLAND [194
wished to recover for the negligence of the employer. " The
act," said the court, "embraces cases where the death had
been caused by the negligence of the employer, cases where
there would have been clear right of action in the courts
imder existing law. It enacted that employers who had
made the payments provided in the act should by such pay-
ments be exempted from further liability. The effect was
... to take away from citizens a legal right which they
had theretofore enjoyed, and which could be enforced by
them in the courts, and also to deny them a right to have
their cases heard before a jury." The court seems plainly
in error in the first part of its decision, for it was decided
as early as the case of Munn v. Illinois* that " a person has
no property, no vested interest, in any rule of common law.
. . . Indeed, the great office of statutes is to remedy defects
in the common law as they are developed, and to adapt it
to the changes of time and circumstances." As to the mat-
ter of a jury trial the question is more complex and diffi-
cult. Suffice it to say that jury trial is not abrogated if
the act is a just exercise of the police power; and, more-
over, most courts in the case of pseudo-elective acts have
refused to take cognizance of the implied coercion in these
acts and have decided that where those affected have con-
sented to be governed by the law there is no deprivation
of due process. That is to say that where parties have con-
sented to try their case without the intervention of the jury,
even though there is insidious, hidden coercion pressing
upon them, there is no infringement of their right to a jury
trial. Such argument is of little value and is perhaps con-
trary to Maryland precedent, but the courts, in spite of
criticism,^ have often used this species of reasoning.
, In 1910 the void created by this decision was filled with
a new cooperative relief fund,^ but even further limited
*94U. S. 1 13-134.
6 See Freund, Constitutional Status of Workmen's Compensation,
m 2 American Labor Legislation Review, 43 (1912). In the present
(1917) Maryland law the servant has reserved to him the right of a
civil" suit when the employer is negligent.
« Laws 1910, Ch. 153, as amended by Laws 1912, Ch. 445.
195] THE workmen's compensation law 49
this time to clay and coal mining in Alleghany and Garrett
counties. The act provided a compulsory, cooperative in-
surance scheme ; but the constitutional difficulty caused by
the earlier decision was obviated by allowing the employee
to sue in the courts provided he renounced all and had
accepted no benefits from the Relief Fund. Another con-
stitutional question was avoided by calling the contributions
of the employers and employees "taxes," thereby resting
the compulsory power exercised by the State upon its tax-
ing rather than upon its police power. The advisability of
the change may, however, be considered doubtful — a leap-
ing from the frying pan into the fire, for here the constitu-
tional provision against levying a tax for a private purpose
stands rather obtrusively in the way, but it may be said here
that such a tax has been upheld in a Western court as ana-
logous to a license tax.''
This act, in spite of the constitutional change of face,
was quite an improvement over the former law from a
social viewpoint. It provided, as intimated, for a fund
equally contributed by employer and employee — though for
administrative purposes the employer paid the whole tax —
which was put into the hands of the county commissioners
of the two counties to administer. The insurance for " in-
juries sustained in the discharge of duty" and for death
are far from sufficient, but there is a great increase over
that provided in the original act. $1500 is granted to de-
pendents upon the death of the wage earner ; total disability
entitles the injured to $750 plus one dollar a day, excluding
Sunday, for twenty-six weeks, about $180 additional ; par-
tial disability entitles him to $375 with the same addition ;
and temporary disability to the dollar a day benefit for
twenty-six weeks. The waiting time in all cases is one
week. Although the law provides for the payment of all
benefits in lump sums, the legislators recognized the possi-
■^See State ex rel. Davis-Smith Co. v. Clausen (Wash.), 117 Pac.
iioi. The Maryland law was upheld in analogy to this case, see 128
Md. 564.
50 THE LABOR LAW OF MARYLAND [196
ble evil of this method and strove to mitigate it by consti-
tuting the county commissioners a judicial board, first, to
determine who were " dependents " and, second, to appoint
bonded personal representatives to administer the reliefs
granted to the beneficiaries. This law seems to have been
successful, and its effectiveness was only terminated by the
passage of the present general compensation act.
Again in 1912 there was introduced before the legislature
a Workmen's Compensation bill, this time general and com-
pulsory in character. When the bill finally emerged, how-
ever, it had been completely emasculated and converted into
a harmless, inactive elective compensation law.^ This pro-
vided that it should "be lawful for any employer to make
a contract in writing with any employee whereby the parties
may agree that the employee shall become insured against
accident occurring in the course of employment which re-
sults in personal injury or death, in accordance with the
provisions of this act; and that in consideration of this in-
surance the employer shall be relieved from the conse-
quences of acts or omissions by reason of which he would
without such contract become liable." Being purely elec-
tive, no constitutional questions could arise from the en-
forcement of this act. Moreover, the law has been entirely
inoperative and is only interesting as the direct forerunner
of the present law.
The act of 1912 covered all injuries "arising out of and
in course of employment" except where the injury "is the
result of the employee's intoxication, or wilful and deliber-
ate act or deliberate intention to produce such injury." The
dependents are defined to be "widow, widower, father,
mother, son or daughter " unless otherwise provided. Noth-
ing is said with regard to alien dependents. The schedule
of benefits, although still rather meager, is again an im-
provement over the 191 o Act, and is again topped by the
present act. It provides for a death benefit of thrice the
8 Laws 1912, Ch. 837.
197] THE workmen's COMPENSATION LAW 5 I
annual wages, but not less than one thousand dollars; in
case of total disability for a benefit of at least fifty per cent
of the wages during disability; and in case of partial dis-
ability for the difiference between the total disability benefit
and what the injured man can earn. The waiting time is
again one week. The administration is vested in the par-
ties to the contract, but the insurance commissioner has full
powers of investigation. In case of any dispute as to award,
a board of arbitration is provided for.
These three early laws were repealed by the passage of
the 1914 Workmen's Compensation Law,^ which embodied
many of the best features of the earlier laws, especially of
this last elective Employers' Liability Law. The new act,
however, is such an advance over these experiments that a
comparison between them is hardly profitable. It will be
better, therefore, carefully to examine and analyze this law
as a piece of social legislation in comparison with certain
ideals which have been formulated for compensation
schemes and in comparison with the various compensation
schemes embodied in the laws of other states. After this
study, it will be necessary to consider the legal aspects of
the act.
The Present Law as Social Legislation. — It seems hardly
necessary at this late date to enter upon any detailed argu-
ment with reference to the merits and demerits of work-
ingmen's compensation laws. It is, nevertheless, almost
impossible to begin any discussion of this legislation with-
out at least some short summary of the pros and cons of
the question.
The objections to the laws are based upon the common
law individualistic conceptions of responsibility. An indi-
vidual, it is argued, should be responsible only for his own
fault and negligence. By the common law the employer
must supply the employee with a reasonably safe place to
work in, reasonably safe materials and machines to work
9 Laws 1914, Ch. 800; Code 1913, Art. loi.
52 THE LABOR LAW OF MARYLAND [198
with, and reasonably competent fellow-servants to help him
in his work. If the employer complies with his duties and
the employee is nevertheless injured, the loss must He where
it falls, for on entering an employment the employee as-
sumes the risks of that employment, and visualizing the
possibility of injury demands higher wages as a sort of in-
surance. When confronted with the proposition that the
average workingman is by nature an optimist and neglects
or is unable to insure himself, the individualist shrugs his
shoulders and conveniently washes his hands of the improvi-
dent laborer. He quite as conveniently waves aside the in-
equality in the bargaining power of the two factors, and
assumes that the employee is as capable of refusing unde-
sirable employment as the employer is of refusing employ-
ment to the too pessimistic employee. The common law
individualist, however, is stronger when he argues against
saddling the employer with the burden of providing com-
pensation for all accidents occurring to employees arising
out of their employment irrespective of cause. This posi-
tion is absolutely invulnerable unless it can be proved that
the employer is in a position to shift the whole cost of the
compensation to the trade and thence to society.
The arguments for compensation, on the other hand,
attack the problem most successfully from the opposite, the
social point of view. From this standpoint the indictment
of employer's liability is complete. Unfortunately, we have
no Maryland statistics, but it is safe to assume that her ex-
perience is not materially dififerent from that of other States.
In the first place, an enormous majority of the industrial
accidents under the common law system of reparation go
absolutely uncompensated. Out of a total of 694,212 in-
juries cited in the New York commissions' report, only
88,841 or 12.78 per cent were compensated; and even the
fact that this total included minor injuries, at the most fifty
per cent of all, does not materially vitiate the conclusion
drawn. Moreover, when recovered — and the delay is often
great and serious — the compensation is usually most inade-
199] '^^^ workmen's compensation law 53
quate, if not perchance superfluously generous. " A good
deal to the very few and nothing or very little to most
seems to be the principle upon which the liability system
worked itself out."^**
The common law doctrines of assumption of risk, contrib-
utory negligence and fellow servant negligence have also
come in for their own special condemnation : the assump-
tion of risk theory on the grounds explained above ; the
contributory negligence theory as being inequitable in
thrusting upon the employee full liability for partial fault,
in its essence a lazy rule of expediency ; the fellow-servant
doctrine as being totally inadequate in this day of enormous
factories and multitudinous coemployees, many of them in
entirely separated departments. Moreover, the hostility
aroused under common law principles between the laborer
and his employer by the consequent law-suits and bicker-
ings is surely not conducive to economic peace and mutual
understanding. Finally, and this argument being expressed
in dollars and cents has always been most potent with the
layman, the cost of administration, the lawyers' fees and
the court costs, have annually mounted to intolerable fig-
ures. This was a direct burden both upon society^^ and
upon the injured workingman who could ill afford the in-
creased load. All of these defects of the liability system
worked a hardship upon the laborer, generally causing him
to lower his standard of living, if not to become an actual
object of charity. To prevent this, to provide compensa-
tion for every injury when most needed, to save lawyers'
fees, to promote amicable relations between the employer
1° J. M. Rubinow, Social Insurance, p. 94. This book is rich in
statistical matter. Another valuable piece of statistical work is con-
tained in the congressional report on compensation, in S. Doc, vol.
12, 62d Cong. 2d sess.
1^ There is some argument that the cost of administration of the
compensation law, the salaries of the commission and its other ex-
penses, will be as great as, if not greater than, the saving accom-
plished by the diminution of court work. This argument, even if
true, can weigh little; for it is not the cost of government which the
compensation laws are striving to effect, but the social cost of inca-
pacitated, degraded workingmen.
54 THE LABOR LAW OF MARYLAND [200
and the employee, these are the aims of compensation. To
put upon the consuming public the duty of preventing pov-
erty instead of mitigating wretchedness.
The arguments are clearly in favor of compensation;
yet the inevitable lag of legislation, the opposition, entirely
explicable, of the capitalist class to any social legislation
which will affect their pocketbooks, — and all social legis-
lation must necessarily affect their pocketbooks in the first
instance, though the intention is that part, at least, of the
burden shall be shifted, — the technical shortcomings of the
average state legislature; these have kept Maryland for
twelve years with insufficient compensation laws on her
statute books.
The Maryland act of 1914, however, provided for a com-
pulsory system of compensation insurance in certain enu-
merated extra-hazardous employments.^^ The legislature
flatly challenged the constitutional obstacle of due process
of law by making the law absolutely compulsory for those
employments to which it applies. This system of absolute
compulsion is in complete accord with theoretical opinion,
but in almost as complete contrast to the actual perform-
ances of various States. Only four states out of twenty-
four, that is, Maryland, New York, Ohio and Washington,
have compulsory schemes. The others have sought to ap-
pease the courts with what I have denominated in this dis-
cussion pseudo-elective schemes. These latter laws are
purely elective, though often with a presumption of election
unless notice to the contrary be given ; but those employers
who fail to elect are penalized by being deprived of the de-
fenses of assumption of risk, fellow-servant fault and con-
tributory negligence, and burdened with the added disad-
vantage of popular disapprobation in the jury trial which
must take the place of compensation proceedings. The em-
ployee who does not elect is left in the same position as he
was before the passage of the act. That is to say, the law
" Sec. 32 as amended by Laws 1916, Ch. 597. See also American
Ice Co. V. Fitzhugh, 128 Md. 382.
20l] THE workmen's COMPENSATION LAW 55
States in effect first to the employer: You are perfectly
free to choose whether you will come under the compensa-
tion scheme or remain under liability principles ; but, if you
do not choose the new compensation, you will be deprived
of your three common law defenses and the jury will hardly
be disposed in your favor. Then to the employee: You
have the same choice ; but, if you do not take up with our
plan, expect no favors from us. The courts see no coercion
in this. The end attained by this system is practically the
same as that reached by the compulsory system, but in a
clumsy manner. The pseudo-election has been a sop to the
courts, which have refused to see any deprivation of due
process to him who has chosen to be so governed. The sub-
terfuge has been successful, but the courts have opened
themselves, and rightly, to the charge of inconsistency, a
quality which, interesting as it may be in other fields, is
deadly to the law.^^
The Maryland law, as has been said, enumerates the
extra-hazardous employments which are covered, making
provision, however, in a blanket clause for all hazardous em-
ployments not specifically enumerated. The presumption,
therefore, is that any dangerous occupation is covered by
the act. On the other hand, " farm laborers, domestic ser-
vants, country blacksmiths, wheelwrights and similar rural
employments, casual employees, and any employee whose
salary exceeds $2000 per annum " are specifically ex-
cluded.^* Practically the same exclusion exists in all
States, sometimes by explicit exclusion as in Maryland, as
often by limiting the application of the compensation scheme
to those establishments employing more than four or five
workmen. This exclusion is usually justified upon the
grounds of administrative expediency, but it is also true
that the conditions in these employments are still practically
the same as they were before the Industrial Revolution and
therefore do not so forcibly demand an amendment of the
1* Freund, 2 American Labor Legislation Review, 43.
1* Sec. 63.
*.♦•
56 THE LABOR LAW OF MARYLAND [202
law of that period. In addition to the enumerated list of
employments, the Maryland law provides a joint elective
system of compensation for all other employments in the
State." That this provision will be often elected seems
doubtful.
The provisions for compensation^^ in the Maryland law
cannot be rated as high as can the general scheme. The
increased cost of casualty insurance to the employer has
been such a deterrent upon the legislators that they have
failed rather completely to enact wisely and sufficiently.
The sudden increase of burden upon the employer which
must necessarily accompany compensation has indeed been
the real obstacle in the path of these laws ; yet, if we cor-
rectly understand the theory of compensation, this increased
cost is no real objection.
It has been long ascertained that one of the foremost
causes of poverty is the death or disability of the wage
earner of the family. Poverty was not originally looked
upon as a social disease and the natural remedies for it were
individualistic in character. The supremely moral and
provident device of " setting aside for the rainy day " was
the panacea for all poverty. It proved hardly a feasible
social cure for families stricken by an industrial accident.
The average workingman is naturally optimistic and rarely
visualizes the risk of his employment. Cooperative socie-
ties, furnishing social inducements as well as fraternalistic
benefits, were devised by the master minds to cure to some
extent this insidious evil. By distributing the risk, these
societies offered a degree of security at a low rate. The
remedy, however, was not complete; for these societies,
which developed into gilds and finally into the modern labor
union, naturally did not include the entire working popula-
tion. The outsiders still possess, of course, the old resource
of self -insurance, "putting aside for the rainy day," as well
as the newer idea of insurance in an organized insurance
15 Sec. 33.
i« Sec. 36, as amended by Laws 1916, Chs. 368, 597.
203] '^'^'^ workmen's compensation law 57
company. The newer plan, it would seem, is no more prac-
ticable than the older, for the workingman is naturally in-
different to insurance, especially at the high rates which his
accident risk would generally bear. This antipathy, or at
least apathy, toward insurance is overcome in the case of
the labor union by the added fraternalistic advantages and
by the attraction furnished by the increased utility of the
union as a fighting machine, advantages which seem from
the viewpoint of insurance of rather doubtful value because
of the decrease in the security of the insurance funds. But,
accepting cooperative insurance at its greatest value, society
still has on its hands those poverty stricken families whose
uninsured wage-earners have been incapacitated or killed by
industrial accidents and those families, no less numerous,
which have suffered a serious set-back in their standard of
living because of insufficient insurance. Viewed, then, as
social legislation and totally excluding from consideration
the equities of the matter, compensation laws, providing
funds to tide over all accidents and to support the depend-
ents of killed workmen, are conceived to offset and to fore-
stall this important cause of poverty. Society is to foot the
bill and employers are expected to shift the burden which
is primarily placed upon them. It is perfectly possible to
argue, though it is doubtful whether the employer will en-
thusiastically agree with the argument, that the employer
should invite a large increase in insurance rates, for it has
often been demonstrated that the producer can be assured
of much greater success in shifting large increases in the
cost of production than small increments.
Washington is the only State in the Union, however,
which has interpreted the dictum of social insurance liter-
ally. Her compensation law provides for the care of de-
pendent widows and injured workmen on the same plan that
poor relief would be granted, though, of course, on a more
generous scale. Upon death, the widow is to receive twenty
dollars a month for life or until she marries, with five dol-
lars additional up to thirty-five dollars for each child under
58 THE LABOR LAW OF MARYLAND [2O4
sixteen. For total disability, the injured employee receives
twenty dollars a month if unmarried, twenty-five if mar-
ried, and five dollars additional up to thirty-five dollars for
each child under sixteen. The compensation lasts during
disability. In its other provisions the Washington law de-
parts somewhat from this principle; but, though the com-
pensation is somewhat low, what has been set forth suffi-
ciently illustrates the theory of social insurance — the pre-
vention and abolition of poverty — which has been developed
in Washington.
Most of the States, however, have met the problem by
providing compensation commensurate with the previous
earning power of the wage-earner.^^ The accidents are
divided into three classes, those resulting in death, in total
disability, and in partial disability; and a different rate of
compensation is provided for each. The tendency, though
unjustifiable on theoretical grounds, has been to divide the
class of partial disability into various categories and assign
a definite compensation to each kind of injury. The just
method would be to compensate the injury by a payment
proportionate to the loss of earning power, but the categori-
cal method has been made use of in order to lend certainty
to the amount and cost of insurance. The table on the next
page shows Maryland's standing as to the rate of compensa-
tion in comparison with other industrial States.
Maryland, it is evident, ranks low compared with these
other selected States. In the matter of death benefits the
comparison is most favorable to Maryland, but this is
merely because the other States are equally delinquent, not
because Maryland is nearer the standard. New York is
the only State which recognizes that the needs of a widow
with children are greater than those of a widow without
children. Maryland is prodigal towards the small family
of dependents and penurious toward the larger one. This
1^ Provision is made in Maryland (Sec. 47) as in some other
States for a consideration of the possibiUty of increase of earning
power when the injured workman is a youth.
205]
THE WORKMEN S COMPENSATION LAW
59
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6o THE LABOR LAW OF MARYLAND [206
is clearly unjustifiable legislation. Moreover, this law
abruptly discontinues at the end of eight years the stipend
which only too often had been just sufficient to support the
widow or widower. This is hardly socially or economically
sound unless based on statistics of the average length of life
of a widow after the death of her husband or unless the
Maryland legislature wished by enactment to spur the
widow on to a second marriage.
The Maryland provision for total disability is entirely in-
adequate. An injured, incapacitated workman is, on
grounds of abstract justice, entitled to his whole salary dur-
ing incapacity. This, however, is an extreme and perhaps
an inexpedient position. Some reduction has to be made
chiefly to prevent malingering, but also to satisfy the prac-
tical sense of the community. In one European country,
however, eighty per cent of the workingman's former earn-
ing capacity has been granted and found expedient, but in
America sixty-six and two thirds per cent has been deemed
sufficient. Maryland provides for only fifty per cent. More
serious, however, is the limitation of even this compensation
to eight years unless the laborer by dying precludes the
limitation becoming an injustice. There can be no justifi-
cation for thus terminating the compensation. These laws
are framed to prevent poverty, not to postpone it for eight
years.
The provisions for partial disability are perhaps less
justifiable than those for total disability. Compensation for
partial disability in Maryland is divided, as intimated, into
two classifications : temporary partial and permanent par-
tial disability, and the latter is subdivided into smaller cate-
gories. The division is entirely useless and very confusing.
The compensation for temporary partial disability is fifty
per cent of the loss of earning power due to the injury,
the total compensation not to exceed $3500. If, however,
the same injury — and it is not impossible to conceive one —
should be classed as a permanent partial disability not cov-
ered by the special schedule, the rate of compensation is the
20/] THE workmen's COMPENSATION LAW 6 1
same as that just given, but the maximum is reduced to
three thousand dollars. An impasse, it seems to me. The
specified schedule, as will be seen from the table, seeks to
put a special price, based upon fifty per cent of the weekly-
wage, upon certain enumerated injuries. As was said
above, these schedules are justified merely as an insurance
device; as a social preventive they are unjustifiable. They
would admit that a man is incapacitated by the loss of a
member and needs compensation. However, in two or three
years, it is to be assumed he will have recovered and have
completely adjusted himself to his new mode of working,
being able to earn sufficient to support himself and his fam-
ily at a standard little below his former standard of living.
It is absurd. Can a machinist who has lost his hand earn
nearly what he has been accustomed to earn? Is a struc-
tural steel worker who has lost a leg a capable workman?
The only just compensation is a percentage of the loss of
earning power during the disability ; yet no American State
has provided unlimited compensation. Massachusetts is the
most exemplary, for besides providing a compensation of
two-thirds the loss of earning power during ten years, it
recognizes the fact that the injured laborer will be in greater
need during the first year of his injury by providing a com-
pensation of two-thirds his wages for this year, after which
the regular compensation runs. In this section more than
^n any other the Maryland law is inadequate and in need
iof amendment.
Another feature of the law which must be considered in
connection with the compensation provisions of the act is
|;he section dealing with what is technically known as the
"waiting period."^^ In order to prevent malingering and
to exclude those innumerable minor injuries which it is in-
expedient to compensate, all compensation laws specify a
period before which no payments are granted. The stand-
ards adopted in this study specify from three to seven days ;
" Sees. 49 and 36 (i).
62 THE LABOR LAW OF MARYLAND [208
but, though in some European countries the shorter time is
made use of, the prevailing practice in the United States
is to enforce a waiting period of fourteen days, though in
a few States it is only seven days. The Maryland law pro-
vides for a waiting period of fourteen days except in the
case of total disability when the workman waits only seven
days. During this waiting period the only outside help
provided for the injured employee in most acts is medical
and surgical aid." In Maryland the employee is entitled to
this aid at the expense of the employer up to the amount of
one hundred and fifty dollars, so that it may continue longer
than the waiting period if necessary.^^
In most States the compensation provided in the sections
just discussed is the sole remedy of the workingman. In
Maryland, however, on account of the constitutional diffi-
culties previously set forth, whether sound or not, it is pro-
vided that "if the injury or death results to a workman
from the deliberate intention of his employer, the employee
or his widow . . . may have a cause of action as if this
Act had not been passed."^* Except in such a case the em-
ployee or his dependents,^^ upon proper notice to his em-
ployer^® and upon periodic medical examinations^'^ is en-
titled to his compensation and he is absolutely forbidden to
surrender this right by any contract.^^
22 It is sometimes argued against the long waiting period that the
low paid laborer may be forced below the subsistence line in the
first month of his injury and never again be able to pull himself
above it. E. g., a laborer, with a family of four, earning twelve
dollars a week, is injured. His total compensation for the first
month of his injury will be just equal to his former weekly wage.
The argument is strong, but seems outweighed by considerations of
expediency and of penalizing improvidence.
23 Sec. 37, as amended by Laws 1916, Ch. 597.
2* Sec. 45.
25 Non-resident aliens are included. Sec. 36, as amended by Laws
1916, Ch. 368.
26 Sec. 38.
2^ Sec. 42.
28 Sec. 53. A recent decision of the Massachusetts Supreme Court
has stated that the compensation provided in the act does not relieve
the employer from liability to the parents of a minor for loss of
service. (King v. Viscoloid Co., 106 N. E. 988.) It seems hardly
209] THE workmen's COMPENSATION LAW 63
The compensation is paid for disability or death " result-
ing from an accidental personal injury . . . arising out of
and in the course of employment without regard to fault
as a cause of such injury" and "such disease or infection
as may naturally result therefrom." However, " where the
injury is occasioned by the wilful intention of the injured
employee to bring about the injury to himself or another,
or where the injury results solely from the intoxication of
the injured employee," no compensation is recoverable.^"
This or a similar section has given rise in every State to
an immense amount of litigation, but it will not be neces-
sary to delay longer here than to quote the definition
adopted by the Maryland commission :
"An injury is received in the course of employment
when it comes while the person is doing the duty which
he is employed to perform. It arises out of the employ-
ment when there is apparent to the rational mind, upon con-
sideration of all circumstances, a causal connection between
the conditions under which the work is required to be per-
formed and the resulting injury. Under this test if the
injury can be seen to have followed as a natural incident of
the work, and to have been contemplated by a reasonable
person familiar with the whole situation as a result of the
exposure occasioned by the nature of the employment, then
it arises out of employment. But it excludes an injury
which cannot fairly be traced to the employment as a con-
possible that such a decision could occur under the Maryland law.
The Massachusetts law is a pseudo-elective law and provides only
that unless the employee shall have given contrary notice, he will be
assumed to have surrendered his rights to any recovery outside the
law. This, says the court, does not abrogate the parents' right of
recovery for it is a " rule of statutory construction that an existing
common law right of action is not to be taken away by a statute
unless by direct enactment or necessary implication." In the Mary-
land act, however, it is provided that the common law rule "that
statutes in derogation of the common law are to be strictly construed
shall have no application to this act" (Sec. 61) ; and, moreover, that
payment under the act " shall be in lieu of any and all rights of
action whatsoever against any person whomsoever" (Sec. 36).
29 Sees. 14 and 63 (6), as amended by Laws 1916, Ch. 593. See
also American Ice Co. v. Fitzhugh, 128 Md. 382.
64 THE LABOR LAW OF MARYLAND [2IO
tributing proximate cause and which comes from a hazard
to which the workman would have been equally exposed
apart from the employment. The causative danger must
be peculiar to the work and not common to the neighbor-
hood. It must be incidental to the character of the busi-
ness and not independent of the relation of master and
servant. It need not have been foreseen or expected, but
after the event it must appear to have had its origin in the
risk connected with the employment, and to have flowed
/rom that source as a rational consequence."^''
It may be noted here that, since the compensation law
does not cover occupational diseases, Maryland is without
^ny legal remedy for this industrial evil, for under the com-
fnon law doctrines it would be practically impossible to re-
cover from the employer in the courts. The legislative prin-
ciples upon which these diseases are excluded from the
operation of this act are perhaps sound, but some provision
^hould be made in a separate act for compensation of the
incapacitated. It is obvious that the same reasons which
demanded the passage of the compensation law, the social
and individual effects of uncompensated injuries, as loudly
call for an act whereby the diseases inevitable to the occu-
pation should be borne by the occupation. Practically every
European country has a law of this kind, but the acceptance
,of the principle has been slow in this country.
The provisions of the law which have been considered
are, of course, those most important to the laborer. It is,
unfortunately, this part of the Maryland law which is most
deficient. However, a law is not a law until it is adminis-
tered, and it is, therefore, of utmost importance to the bene-
ficiary of the act that its administration be efficient. For-
tunately, the sections of the Maryland act dealing with the
administration and insurance are most complete and most
satisfactory.
The greatest necessity, after once establishing the true
compensation principle, is to provide some method of guar-
30 Claim No. 224, quoting from McNichol v. Emp. Lia. Ass. Co.,
215 Mass. 497.
21 l] THE workmen's COMPENSATION LAW 65
anteeing the payments to the injured employee. It is easy
to conceive of a compensation law totally invalidated by the
inability of the employers to make sufficient payments after
the accident because of insolvency or other unforeseen dif-
^culty. Some European countries have passed laws with-
out any provision for the securing of the compensation,
leaving everything to the individual initiative of the em-
ployer ; but in the United States it has been unusual not to
pompel some kind of insurance. In Maryland, under a
heavy pecuniary penalty and the added disadvantage of the
abrogation of his three common law defenses in any suit
arising during the time of his non-coverage,^^ the employer
is compelled to secure the compensation due from him
either by insuring in the State Accident Fund, in an old
line casualty insurance company or mutual insurance asso-
ciation authorized to carry workmen's compensation insur-
ance and under the supervision of the insurance commis-
sioner, or by convincing the State Industrial Accident Com-
mission that he is strong enough financially to carry his own
insurance.®^ The Industrial Accident Commission has wide
powers of inquisition and compulsion with reference to the
methods which the employer shall adopt ; and the state in-
surance commissioner has authority to determine the ade-
quacy and to regulate the compensation rates of the pri-
vate companies.^'
The State Accident Fund is a creature of the act.^* Full
permission is given to the commission to establish this fund
by the underwriting of insurance policies under the act.
The Maryland fund is in the nature of a straight insurance
scheme as contrasted with the compulsory, state-adminis-
tered mutual insurance fund of the Ohio act. The rules
for its administration, and its actual administration, are
based upon the experience and organization of private in-
"* Sees. 14 and 15.
'2 Sees. 15, 29, and 30.
'' See. 15, as amended by Laws 1916, Ch. 597; and Sec. 29.
'* See Sees. 16-28, as amended in 1916.
66 THE LABOR LAW OF MARYLAND [212
surance companies. Full power to make rates and classifi-
cations conducive to accident prevention is granted. Penal
provisions allow the state fund to enforce certain regula-
tions as to uniform payrolls or payroll reports which the
private companies enforce by cancellation. As practically
conducted, the fund does not solicit policies ; and it has thus
been able to quote rates on the eight or nine hundred poli-
cies which it had underwritten at the end of 1916 ten to
thirty per cent lower than the private companies. This
saving is also due, in part, to the fact that for the first
three years the full cost of administration is borne by the
State ; and, even after the first three years, the fund is only
to bear that part of the expense which is proportionate to
its share of the policies written in the State.^^ It is, of
course, impossible to give prior to the lapse of a period of
five or possibly ten years an opinion of any value on the
efficiency or economy of the state fund, A principal ob-
jection to such a fund is that, being unable to refuse any
policy, it is oveYburdened with bad risks. Another objec-
tion is that the reserve is generally insufficient to cover
catastrophe risk, though in Maryland, it would seem, the
entire resources of the State are behind the fund.^^ Both
of these as affecting the possibility of the passing of pay-
ments are of utmost importance to the employee, more so
perhaps than to the employer.
The objections to the Maryland fund, it is obvious, are
due to the fact that it is elective and in competition with
the private companies. This fact has led other States, nota-
bly Ohio and Washington, to create a monopoly of insur-
ance in the state fund. The savings in administration
would seem a convincing argument for this mode of secur-
ity, if efficient administrative officers could be procured for
the state fund and the fund in its entirety could be kept out
of politics. This, of course, is socialistic legislation, and
encounters the opposition that is the natural concomitant
35 See Sec. 2j, as amended by Laws 1916, Ch. 597.
3« Sec. 16, as amended by Laws 1916, Ch. 597.
213] THE workmen's COMPENSATION LAW 6/
of all socialistic enterprises. In Maryland, especially, this
opposition would be strong and effective because of the
great growth of Baltimore as a center of casualty insurance
companies and the consequent disruption of business which
would of necessity ensue.
The law as a whole is administered by the State Indus-
trial Accident Commission, composed of three commission-
ers appointed by the governor of the State for a term of
six years with an annual salary of five thousand dollars.^^
Provision is made that this commission shall be bi-partisan,
but there is no attempt to secure efficient administration at
the cost of party politics. The commission has the employ-
ment of upwards of fifty clerks, actuaries, etc., with no
supervision except the written approval of the governor to
the salaries : competitive examinations are not mentioned.
During the administration of each governor the terms of
at least two of the three commissioners will expire so that
each governor will be able to change completely the political
complexion of a board which will annually spend forty
thousand dollars or over. Whether party politics is going
to spoil another good legislative endeavor, it is, of course,
impossible to prophesy; but it seems unpardonable that a
more efficient check than public opinion was not provided
in the law.
The principal, and, at this time,^* the only, office of the
commission is in Baltimore City ; but, when it is more con-
venient for one of the commissioners to go into another
part of the State to hold a hearing than it is for the claim-
ant with all his witnesses to travel to Baltimore, advantage
is taken of the provision allowing one commissioner to hold
hearings and make awards subject to the approval of his
'■^ Sees. I and 3. Three thousand dollars only of the salary is paid
by the State, because of the provision of the Constitution against
appointive officers with salaries above three thousand dollars (Art.
15, Sec. i). The other two thousand dollars is paid by the City of
Baltimore, a practice which has been recently approved by the Court
of Appeals with regard to the Public Service Commission in Thrift
V. Laird, 125 Md. 55.
88 1916.
68 THE LABOR LAW OF MARYLAND [2I4
colleagues. The normal course of proceedings, however, is
for the entire inquiry to be conducted at the home office by
the commission as a whole. When due notice has been
given of an accident and the fourteen waiting days have
passed, during which time the injured laborer has been
enjoying medical treatment, the commission sets a date five
days in advance, before which any objection to the pay-
ment of the claim must be made and a hearing requested.
Unless there is objection the claim is paid, for there is
specifically declared to be a strong presumption that " the
claim comes within the provisions of the act, that sufficient
notice was given, that the injury was not occasioned by the
wilful intention of the injured employee to bring about the
death or injury of himself or another, and that the injury
did not result solely from the intoxication of the injured
employee while on duty."^® It is in these summary cases
naturally that the principal economies of the law become
apparent.
If the employer demurs to the employees' claim, a hear-
ing is set. The hearing is held either before the Accident
Commission or before a special arbitration committee ap-
pointed by it.*" Until a large body of precedents is built
up it is not expected that a special arbitration committee
will be often appointed. At these hearings the commission
prefers to have each party represented by an attorney, so
that the case will be presented in an orderly manner. Here
becomes apparent one of the points where, in the practical
operation of a compensation law, it departs radically from
its ideals of no lawyers and no hostility between capital and
labor. The proceedings of the commission are, however,
fnost siunmary in their nature. There is no pleading ; com-
mon law rules of evidence do not prevail.*^ Only one of
the present commissioners is a lawyer, and the commis-
sioners often question the witness in order to bring out what
8* Sec. 62.
*° Sec. 40.
*^ Sees. 9-10.
215] "^H^ workmen's compensation law 69
seem to them essential points. The proceedings should be
equitable rather than legal in nature has declared a Massa-
chusetts court in a recent decision.*^ In all investigations
the commission has " power to issue subpoenas, compel the
attendance of witnesses, . . . compel the production of
pertinent books, payrolls, accounts, papers, records, docu-
ments and testimony," and an immunity bath is provided
against self-incrimination to save the constitutionality of
the statute.*^ Every precaution is taken to secure swift
and adequate justice and to make this board, though quasi-
Judicial in its procedure, executive in its action. The pow-
ers of the commission do not cease upon each award, but
continue like the powers of equity courts over their trustees
and guardians : it may at any time upon due cause and
notice amend its awards and decisions.**
"Any employer, employee, beneficiary or person feeling
aggrieved by any decision of the commission affecting his
interests under this Act may have the same reviewed by a
proceeding in the nature of an appeal " in any common law
court having jurisdiction; "and the court shall determine
whether the commission has justly considered all the facts
concerning the injury, whether it has exceeded the powers
granted it by the Act, or whether it has misconstrued the
law and facts applicable in the case decided." This appeal
also is to be conducted in a summary manner, but, upon
motion of either party, any question of fact involved may
be submitted to a jury. Appeals from these proceedings lie
to the Court of Appeals.*^
This exposition of the principles of the act demonstrates
that it is a piece of legislation passed for the benefit of the
laborer; and, insufficient and unsatisfactory as some of its
^2 In re Mut. Liability Ins. Co., 102 N. E. 693.
*3 Sec. 7. Contempt of any of these orders may be punished upon
application to any judge in Maryland.
** Sec. 54. Construed in Adleman v. Ocean Accident, etc. Corp.,
130 Md. 512.
*5 Sec. 56. See also Breuner v. Breuner, 127 Md. 189; Frazier v.
Leas, 127 Md. 572.
yO THE LABOR LAW OF MARYLAND [2l6
provisions have been found to be, it brings about a great
improvement over previous conditions. Besides its effect
as social legislation, however, certain legal results follow
from its enactment.
The Constitutionality of the Law. — From the legal stand-
point, the most interesting feature of a compensation law is
its constitutionality. Frankly considered, the law requires
that the money of one set of people shall be handed over
irrespective of fault to the members of another class upon
the happening of a contingency. Such a law is a new de-
parture in American legislation and presents some ex-
tremely interesting constitutional questions. Numerous ar-
guments, brilliant and intricate, have been published in sup-
port of the constitutionality of the law, so that here there
is need only of a mere outline of the difficulties.
The fact that the compensation law substitutes vicarious
liability without reference to fault for the old common law
liability is thus met: "Our jurisprudence affords many ex-
amples of legal liability without fault and the deprivation of
property without fault being attributable to its owner. The
law of deodands was such an example. . . . Other exam-
ples are afforded in the liability of the husband for the torts
of his wife — the liability of a master for the acts of his
servants."*® Statutes furnish further examples. Munici-
palities have been made responsible for property destroyed
by a mob;*'^ railroads have been made liable for damage
caused by sparks from its engines.*^ But these precedents
are not precedents for the compensation law. The common
law instances cited are merely the result of imputing to one
the fault of another whose action he controls, and the stat-
utes relate to special objects of state activity. Compensa-
tion laws, on the other hand, make an innocent employer
carrying on a private, lawful business liable even for an
accident occurring in the course of that business. This
« Chicago, R. I. & R. R. Co. v. Zernicke, 183 U. S. 582.
*^ Chicago V. Sturgis, 222 U. S. 313.
«st. Louis, S. F. R. Co. v. Mathews, 165 U. S. i, and numerous
state decisions.
21/] THE workmen's COMPENSATION LAW /I
argument through precedents does not lead to very satis-
factory conclusions.
Another argument seeks to uphold the compensation law
upon the basis of the decision in the Second Employers'
Liability case.*® This decision held that it was within the
power of Congress so to change the rules of law that no
railroad could avail itself of the three common law de-
fences of assumption of risk, contributory negligence, and
fellow-servant doctrine in a damage suit against it by an
employee. The decision merely reiterated the old opinion
that there can be no property in a rule of law.^° To try to
base the constitutionality of the compensation law upon
this decision displays an ignorance of the distinction between
that law and an employers' liability law. The liability law
merely abrogates the three common law defences and leaves
the law of industrial accidents otherwise the same; the
compensation law provides for the indiscriminate indemni-
fication by an administrative tribunal of all industrial acci-
dents. The liability law retains the idea of fault ; the com-
pensation law imposes a vicarious liability.
A final case relied upon — and this time with more justi-
fication — is the bank guarantee case.^^ Here the court held
constitutional a law which ordered all state banks in the
State of Oklahoma to contribute to a guarantee fund from
which were to be paid the losses sustained by the deposit-
ors in any state bank by its insolvency. Here property is
taken from one set of people to be handed over to another
set upon the happening of a contingency for which the first
set is often without fault. In this respect this law is ex-
actly similar to a compensation law, and this case, especially
in view of the broad language used by Justice Holmes, is
most aptly referred to as a precedent and an analogue in
arguing the constitutionality of a compensation law. But a
distinction can be drawn. In the first place, banking is
« Mundou V. N. Y., N. H. & H. R. Co., 223 U. S. I.
''o Munn V. Illinois, 94 U. S. 113.
" Noble State Bank v. Haskell, 219 U. S. 104.
72 THE LABOR LAW OF MARYLAND [2 1 8
peculiarly a subject of state control; it is most highly
"aflfected with a public interest." In fact, it is really a
public business entrusted to private enterprise and almost
any regulation in furtherance of the public welfare would
be justified. In the second place, there is a decided com-
munity of interest among bankers which tends to make them
stand together and be somewhat responsible for the acts of
one another, so that the law merely lends the sanction of
the state to what was before demanded by self-interest. It
might be argued that a compensation law creates a com-
munity of interest among employers in the promotion of
safety, but this is a difficult argument, and there is of course
no special public interest in most of the occupations covered
by a compensation law. Therefore, though the bank guar-
antee case is a weighty precedent, it does not seem to be
absolutely conclusive.
If a compulsory compensation law is to be frankly up-
held, it will have to be upheld as an exercise of the police
power. It was in the exercise of this power that the Mary-
land act was avowedly passed.^^ " * Property of every kind
— it must be remembered — is held subject to those regula-
tions which are necessary for the common good and general
welfare. And the legislature has the power to define the
mode and manner in which every one may use his prop-
erty.' "^^ It is in pursuance of this power, as was said in
the first chapter, that all labor legislation is enacted and, if
we consider the previous, admittedly constitutional labor
enactments, it will be easily demonstrated that the compen-
sation law is merely a peculiar development of a well-
established principle.
Since the Industrial Revolution, the bargaining power of
the laborer has not been equal to that of the employer.
The inequality was early recognized by the legislatures and
^"^ See the preamble, Part 4.
53 Windsor v. State, 103 Md. 611, quoting Story on the Constitu-
tion. See also Singer v. State, 72 Md. 464; State v. Hyman, 98 Md.
596; 64 L. R. A. 637 ; State v. Gurry, 121 Md. 534; C. & P. Telephone
Co. V. Board of Forestry, 125 Md. 666.
219] THE workmen's COMPENSATION LAW 73
the courts too have now explicitly sanctioned the legislative
correction of this inequality."^* In pursuance of this policy
of equalization, the legislatures have never seen fit to make
absolutely equal the two parties to the labor contract, but
have instead guaranteed to the employee certain terms of
the contract which were conceived as necessary to the " gen-
eral welfare and public convenience." Thus the legislature
has passed child labor laws, hours of labor laws for men
and women, safety and sanitation laws, and a host of other
laws which are not so easy of classification. The compen-
sation law is a law of this kind. Conceiving that the em-
ployee could not successfully bargain with the employer for
a sufficient insurance to himself against industrial accidents,
the legislature by its fiat introduced such an insurance term
into every labor contract. That is to say, the law recognized
that, as economists had long contended, the employee did
not visualize all the risks of his employment, as the com-
mon law assumed he did, and demand a higher wage in con-
sequence thereof. Therefore, says the law, an implied term
of every contract shall be an adequate compensation in case
of industrial accident.
That this term of the contract is as necessary to the gen-
eral welfare as are the terms introduced by previous laws
seems hardly to require detailed proof. Indus^trial acci-
dents are undoubtedly the principal causes of poverty and
degradation. If the prevention of poverty is not necessary
to the general welfare of a community, what is ? It is true
that the courts, not however without criticism, have re-
fused to sanction taxation for the prevention of poverty.
But, granting the correctness of these decisions, they do not
weaken our argument. By a compensation law the State
does not tax for the prevention of destitution; it merely
decrees that industry shall not prosper from the mishaps
of the employee, just as it formerly declared that industry
should not prosper from the labor of children. Industry
must be conducted legitimately and it is certainly within
" Holden v. Hardy, 169 U. S. 366.
74 THE LABOR LAW OF MARYLAND [220
the power of the State to decree that industry shall bear
the cost of all its materials, the cost of the life and limbs of
its laborers, as well as of the inanimate equipment and raw
stuffs.
In thus briefly outlining the constitutional difficulties
which accompany a compensation law, it is of course im-
possible to consider the finer points of law. Equally im-
possible is it to examine some minor constitutional ques-
tions which may be raised with regard to the Maryland
law, but which are not essential to the compensation prin-
ciple.
From the practical legal standpoint, the most important
result of the compensation law will be to render obsolete
in the occupations covered all the intricate tort law dealing
with the relation between employer and employee."^" As
has been so often iterated, the employer can no longer plead
contributory negligence, the doctrine of assumption of risk,
and the fellow servant doctrine in defense of a claim
against him by an employee. The law of contributory
negligence will continue to exist in other damage suits, but
with this exception these doctrines will ultimately pass out
of existence. With them will pass a mass of complicated
and unsettled law. No longer will there be a question of
what risks the employee assumes on entering an employ-
ment, of what kinds of instruments the employer must fur-
nish, whether a defect in a machine is latent or patent, or
whether the employer has engaged efficient fellow servants
to work with the employee. No longer, in short, will it be
necessary to enumerate the duties of the employer to the
employee, for they will all become merged in one duty, —
to compensate him for an industrial accident. No longer
again will it be necessary to determine who are fellow ser-
vants, for the doctrine relating to them is also abolished.
By an amendment of 1916 one of the elaborations of this
rule is explicitly abrogated. If an employee of a subcon-
tractor is injured he may collect his compensation directly
65 See Harlan, Domestic Relations, Part V.
22 1] THE workmen's COMPENSATION LAW 75
from the contractor in chief, who will then contest with
the subcontractor the ultimate liability.'^ Thus, so far as
the working-man is concerned, the doctrine of independent
contractor and with it the doctrine of vice-principal is
abolished.
In place of this branch of the law there is growing up a
new series of cases deciding what is an accidental injury
" arising out of " and " in the course of employment." This
line of cases, if we can judge from present indications,
threatens to become as long as those which have been over-
thrown by the act ; but they will hardly result in such diffi-
cult law. I have already quoted the definition adopted by
the Maryland Accident Commission.
Finally a change must be noted in the relation of the em-
ployee to the insurance carrier. Under the common law the
insurance carrier bears no special relation to the employee ;
it was merely the indemnifier of the employer. Under the
compensation law " the insurance carrier occupies the posi-
tion of surety for the employer, to secure the fulfillment of
any liability which may be determined to have arisen."^'^
The liability of the carrier to the employee is a primary lia-
bility jointly with the employer, and it is not excused from
payment of the compensation by the bankruptcy or insol-
vency of the employer.^^ Nor, of course, on the other hand
is the employer relieved by insuring in a bankrupt or in-
solvent insurance carrier.
s« Laws 1916, Ch. 597, adding Sec. 60A to the Code.
5^^ Brenner v. Brenner, 127 Md. 189.
68 Code 1914, Art. loi, Sec. 36.
CHAPTER IV
The Conditions of Employment
The enactments of the state regulating the conditions of
employment of the workingman, the safety and sanitation
laws, are the most important features of a constructive
labor legislation program. True, the activity of the state
in the fields discussed in the two preceding chapters is most
essential to the welfare of the laborer, but the statutes re-
lating to the labor union and the compensation law are for
the most part amendatory of the common law. Such inter-
ference of the state in labor matters was directed to making
more efficient the existing means for the reform of labor
conditions, that is, to the development of the union and to
the modernizing of the common law to fit present day in-
dustrial conditions ; the remainder of this study will be con-
cerned with the extent to which the state should intervene
in private affairs in the attempt to ameliorate labor condi-
tions.
The most important matter with regard to which the
state exercises its power of intervention is the regulation of
the environment in which the laborer conducts his daily
task. This dogmatic statement might be strenuously con-
tested by some labor reform advocates and by some econ-
omists, but their position seems to be much weakened by
an unproportioned estimate of present conditions and future
possibilities. The contention that the foremost problems
and concerns of labor are unemployment, wages and hours
may be admitted without disproving the contention that the
prime object of state activity is the safeguarding of the
employee in his daily work. Not only historically was this
the first concern of the state in industrial conditions, but
practically it affects more intimately and more uniformly
76
223] THE CONDITIONS OF EMPLOYMENT 7/
the whole mass of workingmen. State employment officers
may find work for a part of the unemployed who rarely
comprise more than eight per cent of the working class ; the
state may set a minimum wage for the hopelessly weak bar-
gainers; and the state may regulate hours in the extremely
overworked trades ; but, in all these, the great majority of
the workers are working out their own salvation with con-
stantly increasing success. Safety and sanitary legislation,
on the other hand, affects every laborer. The unit of re-
form, so to speak, is the factory, not the individual; and it
is this distinction which brings these factory laws peculiarly
within the function of the state and takes them out of the
scope of private and voluntary means of reform.
It is hardly necessary at this late date to argue that safety
and sanitation legislation is proper in the present status of
industrial conditions. Not even the most extreme adherent
of laissez-faire can deny that competition and the absence
of regulation reduce the conditions of labor below the
standards of decency and good health. Even the most ex-
treme individualists admit that the police power of the state
extends to the reasonable regulation of working conditions.
Only the opposition of the capitalist, who naturally objects
to the expenditure of his money for the benefit of others,
and that without any easily perceptible advantage to him-
self, deters the legislators from enacting the fine, ideal laws
which have been drafted for them.
Regulation by Commission. — There is, however, some
dispute with reference to the preferable mode of regulation
if not to the necessity and kind of regulation. Until five
years ago all safety and sanitary laws, if complete, were
lengthy, minute enactments covering every known condition
of employment and laying down absolute laws to apply to
every preconceived condition. Set screws, unguarded belts,
and other dangerous devices were absolutely outlawed, but
there the law stopped. In 191 1 Wisconsin,^ drawing a les-
^ Wisconsin Laws, Sees. 2304-41 to 2394-71.
78 THE LABOR LAW OF MARYLAND [224
son from the evolution of the governmental control of rates,
applied the commission idea of regulation to industrial con-
ditions. A general law providing for safety in industrial
occupations was enacted and a commission with ordinance
powers was appointed to issue orders in compliance with
this general law. Full discretionary powers are substituted
for absolute and arbitrary regulation. Finding it impossi-
ble to foresee every possible contingency in which the labor
law would be applied and conceiving it equally impossible
to leave anything to the easily corrupted discretion of the
inspectors, the legislature created a competent and respon-
sible board to carry out its wishes. The idea of this fourth
branch of government, the administrative branch, as it is
sometimes called,^ is not new in American politics. The
federal government has found it advisable in handling in-
terstate commercial and industrial conditions and the State
governments have rather generally adopted the same means
of controlling their public service corporations and of ad-
ministering their workmen's compensation laws. In the
field of labor legislation the experiment of Wisconsin has
not failed to stimulate imitation; both Massachusetts and
New York among the Eastern States having to a consider-
able degree adopted this means of regulation.
From the legal standpoint the commission is an investi-
gating agency with, it is true, considerably more power to
secure practical benefits from its investigations than have
most investigating committees. The significance of this
aspect of the commission's work is most obvious. As has
been said, the regulation of the environment of employ:-
ment is easily within the police power of the state — the
protection of health and safety is the most elemental exer-
cise of this power. The only limitation upon this control is
that it must be reasonable both in the manner of its appli-
2 Most of this discussion of the industrial commission scheme of
government has been suggested by an article by J. R. Commons,
published by the Wisconsin Industrial Commission, most of which
appeared m The Survey for January 4, 1913.
225] THE CONDITIONS OF EMPLOYMENT 79
cation and in the discrimination necessarily involved in its
exercise. Because of the manner in which the commission
formulates its rules, its ordinances have the prima facie
weight of reasonableness greater than in the case of legis-
lative enactments.
The commission is assisted in drawing up its orders by
unpaid, advisory subcommittees on the various subjects of
safety and sanitation. These subcommittees are not com-
posed of experts fixing ideal regulations, which, as Mr.
Commons says, may be reasonable in a superregulated coun-
try like Germany, but hardly in the United States ; they are
where possible drawn mainly from the ranks of the em-
ployers and employees, with occasionally one or two ex-
perts who are usually taken from state boards or insurance
companies. These subcommittees deliberate, hear witnesses
in the same manner as legislative committees, and draw up
rules which are referred to the commission as "general
orders." These orders are published and then considered at
hearings held before the commission. If amendments are
suggested to the commission at these hearings and approved
by them the report of the advisors is recommitted to them.
When finally approved by the commission, the "general
orders " are enacted to go into effect thirty days after final
publication. The orders can, of course, be attacked in
court ; but, as the commission has sat at its hearings in its
judicial capacity its findings are presumed to be reasonable
and constitutional, and even if before the court new evi-
dence is unearthed to prove the unreasonableness of the
order the order is referred back to the commission for a
rehearing; the court does not absolutely annul the order.
Moreover, since these orders are adopted by a body com-
posed largely of employers, little ground is afforded for the
objection of arbitrariness and public opinion has a strong
lever against the recalcitrant capitalist.
Moreover, through its power to enforce the factory law,
to control inspection and to enact " special orders " to fit
unforeseen contingencies, the commission is enabled to ad-
8o THE LABOR LAW OF MARYLAND [226
minister the law more efficiently and some would be tempted
to say more humanely than it otherwise could. As the com-
mission itself characterizes this part of its work, "the work
of the inspectors of the commission is not to ferret out
points of danger and to tabulate them, but it is chiefly to do
constructive educational work. . . . The one point which
the commissioners most strongly emphasize with the depu-
ties is that they must so present safety work that the em-
ployers will become interested and will appreciate its prac-
tical value from the standpoint of efficiency."^ The field
agents of the commission are " deputies," not "inspectors."
They confer with each employer and if there is an excep-
tional situation in his plant, a " special order " is obtained
from the commission to prevent any irritation from the
operation of the general orders. The same principles un-
derlie the educational work of the commission among tho
employees, for it is well recognized that safety results quitfi
as much from the improved esprit de corps of the workers
as from mechanical safety devices.
In short, everything reasonable is done to decrease the
enormous loss of life and limb which had come to be con-
sidered a natural concomitant of modem industry. " Rea-
sonableness " may be said to be the watchword of the com-
mission. The effect of its policy has been to reduce irrita-
tion and to keep the factory law out of the courts. It seems
beyond doubt that this plan of legislation will be held con-
stitutional, for the courts have recognized this fourth branch
of government in other fields ; and once the legality of the
fundamental law is established there can hardly be further
dispute with reference to an order enacted as these orders
are. Moreover, the new status of the inspection depart-
ment will keep most cases out of court, for it is human
nature to respond more readily to solicitous appeals than
to threatening commands. In fact, it has been found in
Wisconsin that once an intelligent employer has been shown
« Report of the Wisconsin Industrial Commission on Allied Func-
bons for the Two Years Ending June 30, 1914, p. 9.
227] THE CONDITIONS OF EMPLOYMENT 8 1
the most evident deficiencies of his establishment, his own
sense of justice will often prompt him to undertake a thor-
ough rehabilitation of his plant.
In Maryland, however, this scheme has not obtained any
considerable foothold, and, though it is instructive to ex-
amine it in a purely disinterested spirit as a more efficient
system to which we are inevitably tending, yet such a study
does not take us far in the investigation of the existing laws,
Maryland, however, is woefully deficient in its factory leg-
islation ; and, even in studying the existing laws, this chap-
ter will be as often a consideration of ideals as of actual
facts.
Fire Protection. — The fire hazard can without doubt be
said to be the most important safety problem demanding
solution by the State at the present day. Yet practically
every State, unless it has adopted a new building code,
within the last few years has taken decidedly inadequate
measures to meet the danger. Maryland is no exception.
Despite the general agreement that "an ounce of preven-
tion is worth a pound of cure," the legislature of Maryland
allows every city and county within its bounds to expend
thousands in maintaining an elaborate fire department and,
with the exception of the City of Baltimore, provides no
fire prevention law. Even in Baltimore the laws and ordi-
nances aimed at the prevention of fire are not at all in
proportion to the hazard. It needs a tragedy to arouse the
American public to action and, because as yet there has been
no holocaust in Baltimore, we are content to await one be-
fore enacting the proper laws.
Practically the entire fire law of Baltimore and, in con-
sidering this subject, Baltimore will take the place of Mary-
land as the unit of discussion since the fire hazard has been
considered important enough for legislation only in this
city — practically the entire fire law of Baltimore is in the
hands of the building inspector. Now, at the beginning of
this chapter, the excellencies of an elastic law were ex-
tolled ; but the fire law is one wherein certain fundamental
6
82 THE LABOR LAW OF MARYLAND [228
maxims and orders can be laid down with precision, and
have been laid down in states where legislation has been
carefully enacted, as in New York. Moreover, when the
law is elastic it should be administered by a competent com-
mission imder some pressure to enact orders and not by the
arbitrary will of one political appointee to office. Of the
fire laws affecting places of labor which do not depend
upon the discretion of the inspector, one forbids the "pro-
prietor of any sweatshop or factory where four or more
persons are employed to use any coal oil, gasoline, etc. . . .
for the purpose of lighting or heating in any form."* Not
only is this the only absolute provision of the fire law, but,
as far as I can discover, it is the only provision looking to
fire prevention and not to fire escape. Another law does in
a way provide a barrier against fire in decreeing the fire-
proof construction of the first floor of buildings to be built
after 1906;^ but this fire prevention is in the nature of a
protection to the physical structure of the workshop and not
to the lives of the workers, for experience has demonstrated
that, as far as human life is concerned, fireproof buildings
are as dangerous to those in the buildings as non-fireproof
structures.
These two laws also provide for a means of escape ; and
in this respect are of value, but being incomplete these pro-
visions are less important than those which have just been
considered. In the latter law it is ordered that, in all new
buildings, "the entire stairway shall be built of fireproof
material," but as the best fire escape is often useless if it
is open to the inroads of smoke and flame, the omission to
provide for a fireproof enclosure around the escape robs
this portion of the law of most of its value. The earlier
law commands fire escapes in sweatshops or factories
" where four or more persons are employed as garment
workers on other than the first floor " of the building. The
qualification of garment worker is, of course, pernicious ;
* Laws 1898, Ch. 123 ; Baltimore City Code 1906, Art. 4, Sec. 28a
^ Baltimore City Code 1906, Art. 3, Sec. 82.
229] THE CONDITIONS OF EMPLOYMENT 83
and it is alleged that this provision of the building code is
further weakened by the arbitrary interpretation of the
word fire escape by the building inspector whose require-
ments are met by one unenclosed fireproof staircase or even
by two wooden staircases in separate parts of the building."
The other laws enforced by the building inspector are
even more lax and inefficient, and they are to a certain de-
gree overlapping and confusing. One provides that " all
manufactories employing twenty-five or more persons . . .
[shall] have the proper means of exit in case of fire or
panic " in the discretion of the inspector of buildings.'^ An
ordinance of the mayor and City Council of Baltimore
makes the same stipulation for buildings in which five or
more are employed f and a final provision decrees that any
building " in which operatives are employed in any of the
stories above the first story shall be provided with such fire
escapes, alarms and doors as shall be directed and approved
by the inspector of buildings."^ This ofiicial has issued few
orders of any importance.
The whole situation is unsatisfactory. The fire code is
incomplete and far below the requirements of a modern
industrial city. It is true that there has been no astounding
loss of life in any fire in Baltimore, but this must be due
more to individual endeavor than to State supervision ; and,
moreover, the per capita monetary loss in Baltimore is still
oppressively high as compared with European cities and the
foremost American cities. A systematic revision of the fire
law should be undertaken. In this respect Baltimore might
profit by the experience of New York. After the terrible
Triangle Waist fire. New York with the aid of the Factory
Investigating Commission devised and to a great degree
enacted a complete system of fire laws.^° This system,
« Miss Anna Herkner, then Assistant Chief of Maryland Bureau
of Statistics, is the authority for this statement. See also report of
this Bureau for 1912, p. 75.
'' Baltimore City Code 1906, Art. 3, Sec. 80.
* Ordinances 1908-1909, No. 155, Sec. 3, Par. 6.
8 Baltimore City Code 1906, Art. 3, Sec. 83.
1° See New York Senate Documents 1913, vol. 13, no. 36, pt. i, pp.
S;^-89; and New York Consolidated Laws, Ch. 31, Sees. 79-83-
84 THE LABOR LAW OF MARYLAND [23O
though in its details entirely too stringent for the necessi-
ties of Baltimore, might well be adopted in its fundamentals
in this city. As a prevention against fire, cleanliness and
carefulness are the two essentials. Fireproof receptacles
should, therefore, be required for all inflammable waste and
rubbish, and these receptacles should be emptied at least
once a day. Gas jets in factories should be enclosed by
globes or otherwise protected and all smoking in factories
should be prohibited under penalty. Furthermore, to check
incipient fires automatic sprinklers should be installed.
These, the New York commission says, are absolutely nec-
essary above the seventh floor on account of the limitations
of the fire fighting apparatus, but these limitations do not
trouble us much in Baltimore for the simple reason that
few of our factories are over six stories in height. For the
benefit of the factory owner, it may be said that these
sprinklers have proved their worth in from seventy-five
to ninety-five per cent of the cases in which they have been
tested by actual conditions, and that, moreover, they pay
for themselves in reduced insurance rates.
For the protection of those caught within the building
by a fire the commission formulated minute and elaborate
rules. A fire alarm system, for which in Maryland there is
an inadequate provision, and regularly conducted fire drills
participated in by all the occupants of the building are con-
ceived as a prime essential to avert panics. Unhampered
and quick access to the exits on the various floors is also
a desideratum which is so often sacrificed to the demands
for space. For the fire escapes themselves elaborate rules
are laid down. In the first place, outside escapes are uni-
formly discouraged. These escapes are practically of little
use, for the inmates are not accustomed to use them; and
if in a panic a few find them these few are often too be-
wildered to use them efficiently. Moreover, in winter the
outside escapes are often slippery, and the smoke and flames
pouring out of a window opening on them render them en-
tirely useless. The most efficient escapes are horizontal
231] THE CONDITIONS OF EMPLOYMENT 85
exits through a fire wall traversing the whole length of the
building from ground to roof. This divides the structure
into two fireproof compartments and, it is perfectly obvi-
ous, furnishes an ideal means of escape. If this is imprac-
ticable the same end may be attained by the cooperative use
by two buildings of the party wall. An enclosed fireproof
staircase within or attached to the building is another ap-
proved method of escape and if large enough, this staircase
is perfectly efficient. The New York building code fur-
nishes minute regulations as to the relation of the number
of occupants to the width of the various kinds of fire es-
capes, but what has been said is sufficient to show the mag-
nitude of the improvement possible and necessary in
Maryland.
Protective Devices. — In its provisions for the safeguard-
ing of dangerous machines the Maryland labor law is, if
anything, more deficient than its provisions against fire.
There are a few laws decreeing the inspection of scaffold-
ing^^ and boilers^^ with provisions for their safety, but that
is about all. There are, it is true, some general provisions
on the statute books, but these, though they might be most
prolific and efficient, are for the most part entirely abortive.
Thus in the compensation law^^ reference is made to the
power of the Accident Commission to order safety devices
in the factories ; but as yet this power has not been exer-
cised, and even if it were, the exercise would possibly be
unconstitutional because of the lack of notice in the title of
the act. Again, the building inspector has the power to com-
pel the repair or reconstruction of parts of buildings which
"endanger the safety of their occupants,"" and under his
power to issue permits for electrical machines^^ he may
compel the use of safety devices ; but these provisions have
been bootless. These deficiencies in Maryland are especially
11 Code 191 1, Art. 48, Sees. 75-79.
12 Baltimore City Charter 1915, Sees. 572-589-
13 Laws 1914, Ch. 800, Sec. 54. Code 1914, Art. loi, Sec. 55-
14 Baltimore City Ordinances 190S-1909, No. 155, Sec. 3, Par. 7.
« Baltimore City Code 1906, Ords. Art. 3, Sec. 45-
86 THE LABOR LAW OF MARYLAND [232
glaring when it is remembered that Wisconsin and Massa-
chusetts by means of orders from their industrial commis-
sions and New York by means of legislative enactments
and orders have formulated an elaborate system of safety
regulations for the benefit of their working people.
Under the head of safety devices, though here the per-
sonal rather than the material element is concerned, may
be mentioned the full-crew railroad law.^® This, however,
the railroads have demonstrated to be not a valid safety
measure, but a mere sop to the unions.
Requiring the same brief mention, but actually of much
more importance, are the safety and inspection provisions
for mines in Alleghany and Garrett counties.^^ These are
minute and technical provisions, an extended discussion of
which would hardly lend interest to this study. The details
are most technical and quite beyond the comprehension of
a layman. Suffice it to say that the coal mines of Maryland
are considered as safe as any in the country, but whether
that is because of these enactments or because of the in-
herent nature of the mines would require an investigation
quite beyond the scope of this monograph.
Sanitation. — In the field of sanitary legislation the statute
book of Maryland until the legislative session of 1914 was
equally deficient. In that year special laws regulating tene-
ment houses and food-producing establishments set rather
high standards in those particular fields, but left the gen-
eral law totally inadequate. There was prior to 1914 a
general law providing that "all factories, etc. ... in this
State shall be kept in a cleanly condition and free from
effluvia arising from any drain, privy or other nuisance ; and
no factory, manufacturing establishment or workshop shall
be so overcrowded while work is carried on therein as to
be injurious to the health of the persons employed therein,
and every such factory, etc., shall be well and sufficiently
"Code 1911, Art. 23, Sees. 331-335.
"Code Public Local Laws 1888, Art. I, Sees. 207-209; Art. 12,
Sec. 161-164.
233] ^^^ CONDITIONS OF EMPLOYMENT 8/
lighted and ventilated in such manner as to render harm-
less, as far as practical, all gases, etc., generated in the
course of the process . . . carried on therein, which may
be injurious to health " ;^^ but the Bureau of Industrial Sta-
tistics and Inspection to which by means of a court pro-
ceeding was entrusted the enforcement of this law found it
absolutely impracticable because of the generality of its pro-
visions. It was impossible to convict in any court of justice :
an essential of a criminal statute is definiteness. The legis-
lature in 1914 repealed this law, and substituted therefor
a law requiring the licensing of all places manufacturing
"articles of clothing, hats, gloves, furs, feathers, artificial
flowers, purses, cigars or cigarettes. "^^ The only condition
precedent to the grant of this license is the necessity of a
minimum of five hundred cubic feet of air space for every
person employed — a necessary provision, but not of highly
practical value — and the compliance with the existing laws
and ordinances applying to these workshops. The real pur-
pose of this law as acknowledged by its sponsors, the indus-
trial bureau, was not to efifect an improvement of labor
conditions, but to show matters in their true light, to ex-
pose the real status of factory regulation, to relieve the
Board of Labor of the responsibility of enforcing a practi-
cally nonexistent law and to shift this responsibility to the
city officials who have the real means of coercion.
This law, it is obvious, is merely an additional means of
enforcing the general laws of the State in these specified
industries. There is, however, no general enactment in
Maryland applying throughout the State ; the nearest ap-
proach to a general sanitary provision is an ordinance of
Baltimore City decreeing separate toilets for the sexes to
be kept " in a cleanly and safe condition. "^^ Therefore, if
an industry is not located in a dwelling or tenement house,
if it is not engaged in manufacturing food products, and
18 Laws 1884, Ch, 265. Code 1904, Art. 27, Sec. 243.
18 Laws 1914, Ch. 779, Sec. 246.
18 Laws 1884, Ch, 265. Code 1904, Art. 27, Se
18 Laws 1914, Ch. 779, Sec. 246.
20 Baltimore City Code 1906, Art. 14, Sec. 158.
88 THE LABOR LAW OF MARYLAND [234
if it is not in Baltimore City, it has to comply with abso-
lutely no sanitary regulations, and, indeed, in these non-
regulated industries the sanitary condition has been found
to be very poor. No provision is made for the cleanliness
of factories, an essential to good health as well as to fire
protection. No provision is made for ventilation, a matter
which is the subject of numerous administrative orders in
other States. Not only is the ventilation of factories left
to private enterprise, but the slight provision that there is
for toilets does not provide for their ventilation and factory
toilets are very generally ventilated through the work rooms
of the factory. Only in Carroll County^^ is there any pro-
vision for a forced ventilation by suction fans to preserve
the workers from lung diseases brought on by inhaling dust
and noxious gases. To be entirely fair, the law requiring
the sprinkling of the floors of shirt factories every morn-
ing22 should be mentioned here, but the relief is so slight
and the method is so antiquated that this narrowly limited
law cannot greatly mitigate the indictment of Maryland.
Finally, if we omit consideration of minor requirements,
there is in Maryland no law looking to the proper lighting
of factories ; and the employer is at full liberty to strain
the eyesight of his workers to the point of exhaustion. Al-
though I have not made a thorough investigation at first
hand, some of the actual conditions described I have myself
observed ; and if some first hand investigator seeks to ex-
tenuate these failings of the Maryland law by maintaining
that actual conditions demonstrate on the whole that Mary-
land does not as yet need regulatory laws, I would answer
that it is always easier to prohibit by legislation things
which are not in existence and which do not represent as
yet any vested right. Inasmuch, moreover, as other States
have had to cope with these evils, now is the time for Mary-
land to legislate.
In decided contrast to this inefficient phase of the law is
21 Laws 1894, Ch. 202. Applies only to stone-grinding mills.
22 Code 191 1, Art. 43, Sec. 102.
235] "^^^ CONDITIONS OF EMPLOYMENT 89
the recently enacted sanitary inspection law." The act
makes minute provision for the regulation of every place
in which " food products are manufactured, packed, stored,
deposited, collected, prepared, produced or sold."-* In ad-
dition there is vested in the State Board of Health, which
is entrusted with the administration of the law, full power
to promulgate, " from time to time, . . . such general rules
and regulations . . . for the government of the inspectors
and employees of the board as may be necessary," provided
it gives due notice of these orders with the opportunity of
a hearing for those concerned.-^ Since the administration
of the law is vested in the Board of Health, its purpose is
plainly to protect the health of the community rather than
to benefit the workers, but, nevertheless, improved sur-
roundings cannot but accrue to the advantage of the em-
ployees. In so far, however, as the Board of Health con-
siders this law a pure health measure, its orders will be
and in fact have been much less in behalf of the laborers
than if the administration had been vested in the labor
department.
The specific provisions for the sanitary norms to be ap-
plied to the various food factories are almost ideal in their
nature.2^ It is first enacted that all of the rooms, furniture
and implements used in the preparation of food products
shall be kept in " a clean and sanitary condition," unclean
and unsanitary meaning the lack of protection of the food
itself against flies, filth, etc., the failure to remove all dirt
and waste product, and the failure to keep the persons of
the employees clean. It might have been provided that the
side walls and ceilings should be regularly lime-washed, but
in the absence of this stipulation it is to be expected that
the Board of Health will issue orders to fill the gap. It is
further enacted that "every . . . place occupied . . . for
23 Laws 1914, Ch. 678.
2* Ibid., Sec. I.
25 Ibid., Sec. 7.
2« Ibid., Sec. 3, Subsecs. a-f.
90 THE LABOR LAW OF MARYLAND [236
the preparation, etc., of food shall have convenient toilet or
toilet rooms which shall be kept separate from the rooms
where the process of production, etc., is conducted, and all
parts of such toilet rooms shall be kept clean." Moreover,
the workers are forbidden to sleep in the workroom of a
bakeshop, etc., or in the kitchen or dining- room of a hotel,
restaurant or boarding house ; and the employer is forbid-
den to employ any worker affected with a communicable
disease unless he can produce a certificate from the Board
of Health permitting him to be employed in such a place.
Finally, washrooms are ordered to be constructed in these
factories. Further stipulations are laid down for canneries
in the State, but these are largely technical and do not add
much to the general provisions.
There is only one serious omission from this law : cellar
bakeries are not prohibited. It is obvious that " a cellar is
unfit both for the manufacture of food stuffs and for the
habitation of workers. There can be no natural light under
the most favorable conditions in a cellar. They are also
very difficult places to ventilate unless a mechanical system
is installed, which is out of the question in the ordinary
small bakery. . . . They cannot be kept as clean as other
parts of the house, for they are semi-dark, and contain most
of the plumbing pipes and fixtures. They are also the nat-
ural habitation of insects and rodents."" Although it is
true that conditions in Baltimore bakeries are not nearly so
bad as they are in New York and, in fact, it has been said
that there are no cellar bakeries in this city,^^ the absence
of the evil, as has been contended in another connection,
constitutes no real argument against sound prophylactic
legislation.
The Tenement Law. — In 1914, also, Maryland obtained
perhaps as efficient a homework or tenement law as is pos-
27 New York Factory Investigation Committee Report, Senate
Documents of New York, 1913, vol. 13, no. 36, pt. I, p. 222.
28 Dr. Caspari of the State Board of Health, who has charge of
the administration of this act is the authority for this statement.
[237 THE CONDITIONS OF EMPLOYMENT 9 1
sible.^^ A tenement inspection law is practically always
inadequate because of the impossibility of proper inspection
even with the largest corps of well-trained inspectors. A
sufficient corps of inspectors may perhaps keep the tene-
ments free from filth and disease, but an absolutely efficient
administration of the child labor law or any other law affect-
ing the terms of labor is unattainable. Investigations in
New York have shown that children too young to be sent
to school were put to work helping the parent and that chil-
dren of school age were compelled to give help for such
unreasonable hours that their school work could hardly be
of any practical benefit.^" Moreover, it was argued by some
of the witnesses, that in view of the low wages paid tene-
ment workers it could not be denied that some manufactur-
ers were obtaining an unfair advantage in free rent and light
at the ultimate cost of the State in broken-down workers ;
but, pregnant as this contention may be in forcefully pre-
senting some of the evils of home work, it cannot be said
to be a potent argument for State interference. If the State
determines to regulate hours of labor, wages of labor and
child labor, and finds it impossible to do so while tenement
work-rooms exist, then, granting that it is within the power
of the State to undertake this regulation, the State would
have the right to prohibit home work. The health of the
community can be safeguarded by adequate or approxi-
mately adequate inspection of the conditions of employ-
ment, and that is the subject of this chapter.
The act provides for the registration of every factory,
workshop, or mercantile establishment employing five or
more people f^ and every room or part of a tenement houss
which is to be used for manufacture or repair work, except,
of course, the personal work of the occupants, must first
be licensed by the State Board of Labor and Statistics.^^ In
29 Laws 1914, Ch. 779.
30 Conducted by the Factory Investigating Committee.
31 Code 1914, Art. 27, Sec. ^4, as amended by Laws 1916, Ch. 406.
32 Ibid., Sec. 245.
92
THE LABOR LAW OF MARYLAND [238
New York the licensing of the whole tenement as a unit
has been found more efficient than the licensing of each
workshop separately since it interests the owner of the tene-
ment in the conditions of the separate workshops and makes
an additional person responsible for the sanitary conditions.
This is perhaps an improvement on the Maryland law, but
not of fundamental miportance, since, as it is, the manu-
facturer contracting out to home workers is also compelled
to see that the provisions cf the act are complied with in
the homes to which he sends his work.^^ These adminis-
trative features are the strong points of the law, and es-
pecially so when coupled with the minimum requirement of
one inspection every six months — a minimum, however,
much below comparative efficiency, but expedient for the
sake of economy.
Although below the most exacting standards, the sani-
tary provisions of the act, if conscientiously enforced, may
raise home work to a satisfactory sanitary level. The Board
of Labor and Statistics has powerful means in its hands to
enforce these provisions, for much is left to its discretion
in granting the licenses and it has power to revoke them
upon the slightest infringement of the conditions of their
grant.^* The board may refuse the license if the place can-
not show a clean health record. If the health record be
clean, then an inspection of the place is necessary; and, if
the board through its inspectors "ascertain that such' room
or apartment is free from . . . communicable disease and
is in proper sanitary condition, it shall grant a license " for
the place to be used by members of the family only, and
that only to the number of one worker to every five hun-
dred cubic feet of air space.^^ Though the New York com-
mission recommended more stringent sanitary regulations
than these, Massachusetts has practically the same provi-
sions as has Maryland. While not ideal, therefore, the
Maryland provisions at least may be said to be adequate.
8* Ibid., Sec. 247.
a* Ibid., Sec. 248.
'5 Ibid., Sec. 245.
239] THE CONDITIONS OF EMPLOYMENT 93
In actual operation, however, the law is not so satisfac-
tory. The final determination of the sanitary condition has
been left in the hands of the local health department, for
the board has found it inexpedient to controvert the find-
ings of the health authorities as to health conditions. The
effect of this has been that practically no licenses have been
refused because of the presence of communicable diseases :
the health authorities rarely find any evidence of such dis-
eases or, if any is found, the conditions are soon corrected.
It is hardly within the scope of this study to indict the
health officials, but the performance of their part in the
enforcement of the law has been, to say the least, very
desultory.
CHAPTER V
The Terms of Employment
Foreword. — The question of the extent to which the
State should interfere with the terms of employment is one
of the most acute of modern legislative problems. In gen-
eral, it may be said that as the State, on the one hand, is in
most cases warranted in regulating the conditions of em-
ployment, so, on the other hand, in most cases there must
be actual and positive cause for the extension of State activ-
ity to the control of the terms of employment. In general,
the problem of the hours and wages of employment should
be solved by the bargaining of the wage-earner and the em-
ployer.
The extent to which the State should interfere with the
terms of employment is, of course, one of the questions of
the science of legislation, and it should be solved according
to the norms and maxims of that science. But it is practi-
cally impossible for a student of American government to
consider legislative problems solely in the light of the prin-
ciples of legislation. If he could do so, his task would be
comparatively simple. An almost religious regard for the
law of the Constitution has so imbedded itself in the legal
thought of the United States that to think of framing an
enactment without scrupulous respect for its constitutional-
ity would be unpardonable sacrilege. It is this which ac-
counts for the obvious and deplorable lack of consistency
and scheme in the labor legislation of every State. The
grossest inconsistency is apparent in the enactments con-
cerning labor unions and the terms of the contract of em-
ployment.
In attempting to outline an ideal and consistent scheme
of legislation, I shall attempt to prove in a subsequent chap-
94
241] THE TERMS OF EMPLOYMENT 95
ter that legislation regulating the terms of employment is
only justified as a temporary expedient. Labor legislation,
as has been so often iterated, is a means of equalizing the
bargaining power of labor and capital, but the greatest
equalizer, it will be shown, is the union. Until the ideal of
complete unionization is attained, State interference with
the terms of employment is justified. The courts have up-
held legislation in respect to the hours and wages of em-
ployment of women and children, but have quite as unani-
mously overthrown similar legislation for unorganized
workingmen unless the occupation is especially danger-
ous. They have thus established a principle of American
legislation, but a principle which is unsound. It seems to
be based upon two fundamental conceptions. In the first
place, women and children because of their weaker nature
have all through the common law been considered just re-
cipients of the protection of the law. The courts have,
therefore, always rather welcomed^ legislation delimiting
the employment of women and children. Their antagonism
to legislation for adult males, however, is unjustified, for,
although the weakness of women and children does entitle
them to additional protection from the State against undue
influence and fraud, the unorganized male laborer is in as
unfair a position in making a wage contract with the aver-
age employer as the weakest woman. Mental strength has
little effect against a dominating force. In the second place,
the courts in upholding labor legislation of this kind put it
most often in the rubric of health laws. Of course, it is
true that the physical condition of women and children is
less resistant than that of men, and, moreover, it is easy to
argue that the welfare of the community is more strictly
connected with the health of women and children than with
that of men. But this is largely a matter of degree and
hardly the occasion for such a strict drawing of constitu-
tional lines. A needless inconsistency is the result.
1 1 think that I am justified in the use of this word in view of the
decision in Bosley v. McLoughlin, 236 U. S. 385,
q6 the labor law of MARYLAND [242
If to this inconsistency is added the pressure of all kinds
of reform organizations for every conceivable limitation of
the terms of labor and the cheap politics displayed by can-
didates competing for the vote of the laboring class, the
possibilities of a shapeless system of labor legislation seem
of limitless magnitude. This shapelessness has been more
than achieved. Instead of the almost total absence of leg-
islation regulating hours and wages of labor which would
be the case under ideal conditions, the statutes of the aver-
age State are an enervating hodge-podge. Antiquated and
useless legislation is left on the books to the confusion of
the lawyer and student; conflicting laws are enacted with-
out taking the trouble to repeal the earlier laws ; criminal
laws without penalties are set forth as sops to some now
forgotten reform movement ; and high sounding laws with
fatal exceptions are in endless abundance. This is a con-
cise and exact description of the legislation of Maryland
in spite of some recent efforts of the legislators. There is
absolutely no unity or system present. It must not be un-
derstood, however, that Maryland is unique in this respect.
Except for those States, of which Wisconsin is the fore-
most example, which have practically repealed all their pre-
vious labor law and left to a commission the evolution of a
new system, every State of the Union is equally guilty.
Even New York, which has recently adopted almost an en-
tire new code of labor legislation has been remiss in failing
to repeal the earlier law. But for an estimate of the status
of the laborer in Maryland, some study of this phase of the
law is necessary. For the purposes of this chapter I have,
therefore, arranged the laws under three heads : first, those
prohibiting the employment of certain classes in specified
occupations; second, those regulating the hours of labor;
and, third, those regulating the wages of labor.
Prohibitions of Employment.— The absolute prohibitions
contained in the Maryland labor law with the two excep-
tions referring to the employment of women as barmaids'*
2 Code Public Local Laws 1888, Art. 13, Sees. 195-196.
243] "^^^ TERMS OF EMPLOYMENT 97
and as waitresses in places of amusement^ are all confined
to child labor. The laws forbidding absolutely the use of
dangerous materials or methods in any occupation have ob-
tained no foothold in this State. Indeed, there are few
laws of this kind in the country, only one, the federal pro-
hibitive tax on the phosphorous matchmaking industry,
being a typical example. An anti-homework law might be
desirable. This type of legislation is much more effective
than the regulatory laws described in the last chapter, to
which they are closely related, but the American tendency
is towards regulation rather than absolute prohibition.
The usual prohibitions to be found in any State, then,
refer to child labor ; the education of the child and the pro-
tection of the young person, as he is technically called, being
the ends of the law. Thus in Maryland no minor under
twenty-one years of age is permitted to work in or in con-
nection with any place where spirituous liquors are sold.*
It seems exceedingly doubtful whether this provision is
strictly enforced for the difficulties of administration are
obvious. Prohibition reform would, of course, be more effi-
cient; and even putting the enforcement in the hands of the
Liquor License Board might aid in increasing the efTective-
ness of the law.
Children under the age of eighteen years, as in most
other industrial States, are forbidden to work in or about
" blast furnaces, docks or wharves ; or in the outside erec-
tion and repair of electric wires ; in the running or man-
agement of elevators, lifts or hoisting machines or dyna-
mos ; in oiling or cleaning machinery in motion ; ... at
switch tending, gate tending, track repairing or as brake-
men, firemen, engineers, etc., upon railroads ; ... or in or
about establishments, where . . . high or dangerous explo-
sives are manufactured, compounded or stored . . ." or in
3 Code 1914, Art. 27, Sees. 44:^-443.
*Laws 1912, Ch. 731, Sec. 22 (to be Art. 100 of Code); Code
191 1, Art. 56, Sec. 98.
^8 THE LABOR LAW OF MARYLAND [244
Other like occupations wherein their immaturity would ren-
der them inefficient.^
Children under sixteen years of age are rigidly circum-
scribed in their employment. They are forbidden to be
employed around dangerous machines as circular or band
saws, picker machines or machines used in picking wool,
cotton or any other material, job or cylinder printing
presses operated by machinery, stamping machines and
numerous others specified at great length. They are not
permitted to work upon any steam, electric or hydraulic
railway or on any machinery operated by power other than
hand or foot power, or upon any vessel or boat engaged in
navigation or commerce. Occupations wherein dangerous
or poisonous acids are used are closed to them, as is min-
ing and the allied occupation of tunneling. They are for-
bidden to perform in any concert hall or playhouse in con-
nection with any professional theatrical performance, ex-
hibition or show.^
There is also a prohibition of the employment of females
under sixteen where such employment compels them to re-
main constantly standing.'^ This is really more of a regu-
lation of the conditions than of the terms of employment ;
and, though somewhat vague, it is fundamentally an exem-
plary piece of legislation in which Maryland seems to have
established a precedence. Moreover, no child under six-
teen can be employed in any occupation until he has ob-
tained a permit from the Bureau of Statistics in Baltimore
City or from the superintendent of schools in a county.
These employment permits or certificates are of two classes,
general and vacation employment certificates, and are is-
sued only on the conditions of a satisfactory school record,
of a favorable report from a competent physician, and evi-
dence that the child is of legal age to work in the desired
"Laws 1912, Ch. 731, Sec. 21.
« Laws 1912, Ch. 731, Sees. 7S, as amended by Laws 1916, Ch. 222,
and see Code 1914, Art. 27, Sec. 346.
^ Laws 1916, Ch. 222, Sec. 23.
245] THE TERMS OF EMPLOYMENT 99
occupation.^ The granting of these certificates is regulated
moreover by stringent administrative provisions. Similar
to these certificates, but with the necessary differences, are
the badges granted to boys between the ages of twelve and
sixteen to sell papers and periodicals on the street during
daylight.^
Subject to these stipulations and exceptions, it is legal in
Maryland to employ children above the age of fourteen.
Children under fourteen are forbidden to be employed " in,
about or in connection with any mill, factory, mechanical
establishment, tenement house, . . . office building, . . .
public stable, garage or in any mercantile establishment
. . . , place of amusement, club, etc.," in short, in most
occupations. ^° The fourteen year age limit is also estab-
lished to a certain degree by prohibiting the employment
under that age during school hours.^^ There are, however,
in the Maryland law two provisions allowing the employ-
ment outside of school hours of children above the age of
twelve in " canning or packing establishments,"^^ and of
males above the age of twelve in the sale of periodicals and
newspapers on the streets. Boys above ten may with a
permit distribute papers on a regular route between the
hours of 3 130 and 5 :oo p.m.^^ If the twelve year mini-
mum is enforced in canneries and allied occupations, Mary-
land children are better protected than those in most other
canning States, in New York, at least, it having been found
practically impossible to enforce a fourteen year minimum.^*
On the whole, this rubric of the Maryland labor law at-
tains as high a standard as that set anywhere in the coun-
try. The Child Labor Law is a recent enactment and seems
8 Laws 1912, Ch. 731, Sec. 9 ff.
8 Ibid., Sees. 27-33.
^0 Laws 1912, Ch. 731, Sec. 4, as amended by Acts 1916, Sec. 222.
^1 Laws 1912, Ch. 731, Sec. 6; Laws 1912, Ch. 173.
12 Laws 1912, Ch. 731, Sec. 5.
^3 Laws 1912, Ch. 731, Sec. 26, as finally amended by Laws 1916,
Ch. 222.
^* See Annual Report of Commissioner of Labor, New York, 1914,
P- 135.
lOO THE LABOR LAW OF MARYLAND [246
to have been drafted in a scientific and careful manner, fol-
lowing rather closely the laws of New York and Massachu-
setts, which mark a high plane in the conservative reform
law of this country. There is, however, one prohibition
omitted in the Maryland labor law which experts have come
to consider absolutely necessary. Most European countries
and four American States, Connecticut, Massachusetts,
New York and Vermont, forbid the employment of women
for certain periods before and after childbirth. There is no
doubt of the constitutionality of such a law, for it has been
amply demonstrated that the community suffers from the
high rate of mortality and morbidity of babies who fail to
receive sufficient care from their mothers. Such a law, how-
ever, would involve a considerable step towards communism,
especially as the perfected plan would call for some kind
of aid from the State during the period of enforced rest.^^
Hours. — The regulation of the hours of labor has caused
the legislators of the last quarter of a century the greatest
difficulty. The exact limit of their power has not been
clearly defined, and they can never be sure that their
enactments compelled by the clamors of reformers, eco-
nomic and political, will be upheld by the courts. It is in
fact within this rubric of the labor law that the attempt is
sometimes made to limit the police power of the State.
Somewhere a law ceases to be an exercise of the police
power and becomes a taking of property without due proc-
ess of law. The doctrine of reasonableness has been formu-
lated by the courts, but this doctrine hardly gives any true
clue to the problem. It is best to say that there is much
hopeless conflict between the courts and that in the end each
law must be considered on its own merits.
The economic argument for restricting the hours of labor
has been so often iterated and reiterated that it has become
*5 The Italian plan raises the fund for the care of the indigent
mothers by taxing each woman of child-bearing age employed in any
industry thirteen cents a month, each employer seven cents per
month per woman of that age employed by him, and by an addi-
tional seven cents per woman contributed by the state.
247] THE TERMS OF EMPLOYMENT lOI
shopworn ; and it will not be worth while to set it forth at
length. The arguments of the economists may well be ac-
cepted at their face value, but must then be considered from
the viewpoint of legislation. The economic argument runs
something like this: Long hours are physically injurious.
Long hours stultify the intellectual growth of the individual
because of lack of time for self-enlightenment. Long hours
lead to immorality and excess in recreation. Long hours
tend to lessen the influence of family life and ultimately to
destroy it. The shortening of hours more than pays for
itself in increased efficiency.^® And then, having heaped up
facts, the economist will emphasize one of them, the physi-
cal deterioration or the intellectual stultification, depending
on whether the law in question bears upon women or chil-
dren. The courts accept this reasoning and uphold hours-
of-labor laws for women and children. When a law limit-
ing the hours of labor of men is presented to them, the
courts have generally refused to sanction it, though the
economic argument for it is precisely the same. There is
here an inconsistency due to the lack of a complete scheme
or philosophy of labor legislation.
The limitations on the hours of labor of children in Mary-
land were not of a very high standard until 1916. Prior to
that there was, except for the two provisions aimed at keep-
ing messengers and newsboys off the streets at night," only
a general prohibition that no child under sixteen should
labor more than ten hours a day in any manufacturing busi-
ness in the State or in any mercantile establishment in Bal-
timore.^^ Now there is a strict prohibition of labor of chil-
dren under sixteen in enumerated occupations, including
practically all except canning and domestic labor, for more
than six days in any one week, or more than forty-eight
^* For a typical example, see the brief prepared by Mr. Louis
Brandeis for the Consumers' League in Muller v. Oregon, 208
U. S. 412.
^^ Laws 1912, Ch. 731, Sees. 24-32, and see also Code 191 1, Art.
23, Sec. 375.
18 Code 1914, Art. 27, Sec. 239; Laws 1892, Ch. 443.
102 THE LABOR LAW OF MARYLAND [248
hours during that time, or more than eight hours in any one
day, or between the hours of seven in the evening and seven
in the morning. Moreover, the mere "presence of such
child in any estabHshment shall be prima facie evidence of
its employment."^" This is an almost ideal law, the excep-
tion of canning and domestic labor being necessitated by
expediency. The prohibition of night work and the final
administrative provision merit special attention. Minors
above sixteen are not specially legislated for in Maryland
and are included in the legislation for adults.
The maximum legal extent of employment for women in
Maryland is ten hours in any one day and sixty hours in a
week.-" This law was enacted in 1912 after a bitter strug-
gle, but, as it stands now on our statute book, Maryland
ranks about on the level with most other States of the coun-
try in this respect. There are, however, two exceptions in
the Maryland act which are interesting. The first exception
exempts from the operation of the law females employed
in the canning or preserving or preparation for canning or
preserving of perishable fruits and vegetables. Although
this exception has been bitterly assailed by the reform
forces and although it is illogical and perhaps unsocial, yet
it seems perfectly justified by expediency. New York,
which has enacted a ten-hour law applying to canneries,
has found it practically impossible to enforce it, though the
labor commissioner has hopes of slow education up to the
standard. 2^ Some sort of limitation of hours in canneries
is needed — perhaps a graduated scale over several years
would be feasible — but no law is better than an unenforced
and unenforcible law. The other exception allows twelve
hours' work on Saturdays and six days preceding Christ-
mas in retail mercantile establishments outside the City of
Baltimore, provided that there are two periods of rest on
i» Laws 1916, Ch. 222, Sec. 22A.
20 Laws 1912, Ch. 79, as amended by Laws 1916, Ch. 147.
bee Report of New York Commissioner of Labor for 1914,
249] THE TERMS OF EMPLOYMENT IO3
those days and provided also that the women in these estab-
Hshments work no more than nine hours a day during the
remainder of the year. Here again the exception is not
logically sound, but is dictated by administrative expedi-
ency. New York has a similar exception.
There is no prohibition of night work for women, that
is, no hours between which women are not allowed to labor ;
only instead of ten hours per day being the legal limit a
shorter day of eight hours is stipulated. This is a serious
omission. Night work practically deprives women of any
but the most meager period of rest on account of the insist-
ence of household duties during the day when the worker
is supposed to be sleeping. Moreover, night work makes
the complete and efficient enforcement of the legal day al-
most impossible, for unless certain opening and closing
hours are fixed,' an inspector cannot unearth violations ex-
cept by spending all his time in one factory checking up the
various women as they come in and leave. Both New York
and Massachusetts prohibit night work for women.
The limitations put upon the hours of labor of men are
more in the nature of norms than absolute regulations.
This is what would be expected. Thus eight hours is the
legal day for employees of the City of Baltimore and for
employees of contractors engaged in public work.^^ There
is an exception allowing overtime for the protection of life
and property, an exception which can easily be stretched to
cover ordinary overtime. Again, there is the provision that
ten hours shall be the legal day in cotton and woolen manu-
factories^^ and in mines in Alleghany and Garrett counties,^*
but any adult male may contract to work longer. However,
for public safety, street car employees^-'^ and train dispatch-
ers on a railroad employing the block system^*' are limited
to twelve and eight hours a day, respectively. These laws
22 Laws 1910, Ch. 94. See also Laws 1916, Ch. 134.
23 Code 191 1, Art. 100, Sees. 1-2.
24 Code Public Local Laws 1888, Art. 12, Sec. 165; Art. I, Sec. 194.
25 Baltimore City Charter 1915, Sees. 793-5.
2«Code 1911, Art. 23, Sec. 323.
104 THE LABOR LAW OF MARYLAND [25O
are not important in a general estimate of labor conditions.
The public-works law does give some evidence of the
strength of labor as a political force and the ineffective
laws display a further attempt of the legislature, bootless
this time, to curry favor with the workingmen, but neither
are particularly instructive examples of State activity.
Wages. — When we come to consider the third kind of
legislation regulating the terms of employment, laws with
regard to the wages of labor, an entirely new field is opened
to the investigator. There are, of course, the enactments
protecting the laborer against the fraud and delay of the
employer, but what is most interesting to the student of leg-
islation is the recent tendency of States to set minimum
wages for various classes of workers. This is a reversion
to the Middle Ages practice of setting a " fair and just "
wage with the significant substitution of a legal minimum
for a legally absolute wage. The distinction certainly is
significant, but both the "fair and just" and the minimum
wage are enactments of a very paternalistic government.
Recognizing " that not only hours and working conditions
where there is inequality of bargaining, properly concern the
state, but that the question of wages also has a direct con-
nection with the welfare of the worker, and therefore of the
public," a score of states, American and foreign, have en-
acted minimum wage laws. "Wages," it is further stated
by this advocate of these laws, " have a decided bearing on
the health of the employees. The workers who have suffi-
cient nourishing food and who live under healthful condi-
tions are more resistant to the evil effects of working con-
ditions. Living conditions are dependent to a very large
extent upon working conditions, and a betterment of hours
and wages means a betterment of the mode of living and
therefore of the efficiency of the worker."" The argument
is incontestable if health is the standard according to which
the state should guarantee every worker a "living wage,"
" Report of Industrial Commission of Wisconsin for Two Years
Endmg June 30, 1914, p. 58.
251] THE TERMS OF EMPLOYMENT IO5
the protests of the capitalists to the contrary notwithstand-
ing; but if the goal of state regulation is to establish equal-
ity of bargaining power, if the aim of state interference is
to remedy causes, not symptoms, then minimum wage leg-
islation seems beyond the limits of state activity, although
perhaps a useful temporary expedient. Maryland has no
minimum wage law, and, according to the doctrines which
are advocated in this study, her stand is correct.
All of the laws, of course, apply only to females and
minors, for the same reasons that all other laws relating to
the terms of employment are restricted to them. Most of
the enactments are general in their wording, leaving to ad-
ministrative boards the interpretation of the general terms.
" Every wage paid or agreed to be paid by an employer to
any female or minor employee . . . shall be not less than
a living wage " except that incompetents may be granted
licenses to work at lower rates, says the Wisconsin law ;
and a " ' living wage ' shall mean compensation . . . suffi-
cient to enable the employee ... to maintain himself or
herself " in " reasonable comfort, reasonable well-being,
decency and moral well-being."^^ To administer these laws
steps are taken very similar to those described in the last
chapter in connection with the commission form of labor
legislation. Some kind of commission is always given the
administration of the law. If the commission has any rea-
son to believe that the wages paid females or minors in any
industry or trade are unreasonably low or if any individ-
ual or organization complains to the commission that such
conditions exist, the commission will begin an investigation
into the wage conditions in that industry. This preliminary
investigation is usually ex parte and is in the nature of an
inquest by the grand jury. If the commission decides that
there is reason to believe that there is some truth in these
suspicions, it appoints a board composed of employees and
employers with sometimes a representative of the public to
28 Wisconsin Acts 1913, Ch. 712, Sec. 1729, s-i, (4) and (5) ; 2, 7,
I06 THE LABOR LAW OF MARYLAND [252
investigate thoroughly and determine on a Hving wage.
This board usually has power to summon and pay witnesses
and every one interested may appear. The minimum de-
cided upon, either per day, per week or by the piece, ac-
cording to the industry, is then reported back to the govern-
ment commission, before whom may appear any complain-
ants who are aggrieved at the board's findings. When the
legal minimum is finally proclaimed, all employers in that
industry must conform to the rulings of the commission.
In some States, however, for example, Massachusetts,^^ the
penalty for disobedience is merely uncomfortable publicity.
If the minimum wage is really well founded such a sanc-
tion is sufficient.
It is obvious that under a minimum wage law the em-
ployer is not obliged to pay for what he does not receive,
he must only pay a little more than he has been accustomed
to pay. He is not obliged to pay a piece-worker so much
per week no matter how much she may loaf during the
week. He is not obliged to pay the unskilled as much as
the skilled. The delinquent is allowed to work for less than
the competent and children for less than adults. Most in-
dustries will not be affected by the legal minimum — wages
there are above it — and those affected are expected to get
more work for the higher wages through the increased ef-
ficiency of the workers. The minimum wage laws have
been evolved to a high degree of efficiency in their details.
Arguments against them must attack the fundamentals, not
the superstructure.
Of an entirely different nature from the minimum wage
laws are those enactments regulating the wage agreements
of adult men ; for though these laws are general and apply
to all workers, it is because they include men that new leg-
islative and constitutional principles are involved. This
legislation is justified on the ground that it is aimed pri-
marily at fraud. The employer on account of his position
29 Massachusetts Acts 1912, Ch. 706, as amended by Acts 1914,
Cn. 300.
253] THE TERMS OF EMPLOYMENT 10/
as trustee for the earned but unpaid wages of his employ-
ees is in such a superior position that he is able, if he wishes,
to exercise the most fraudulent compulsion upon the work-
ers. It is at this evil that this last class of laws affecting
the terms of labor is aimed. An example, though a rather
extreme example, of the protection afforded by the State
is the law forbidding railroad companies doing business
within the State to withhold any part of the wages of its
employees for the benefit of any relief association or the
members thereof.^*' Most of the laws, however, are aimed
at the insidious truck system, as it is called, which has now
fortunately become practically extinct in the eastern sections
of the country. ^^
The truck system has largely depended upon the fact
that nature is so perverse as to establish her most necessary
metallic resources in out-of-the-way places. Mining com-
munities have always been on the economic frontier of civ-
ilization. A not unusual occurrence is the springing up of
a full-sized town out of an uncultivated waste. In these
cases the mining company is generally the owner of the
town, the land, the homes and the public buildings. If not
thus far centralized, at least the source of the food supply
is in the hands of the mining company. At first the com-
pany is performing a real economic service in establishing
the company store, and it is a real benefit to the workers
to have a steady source from which to purchase their neces-
sities instead of having to rely on the possibility of an itin-
erant huckster. This is the good side of the truck system ;
and, perhaps, in the right hands, the company store might
remain a benefit to the laborers, although the monopolistic
weapons of the shop are of a really dangerous nature. But
30 Code 191 1, Art. 23, Sec. 315.
31 Most of the information about the truck system has been taken
from the Report of the Commissioners Appointed to Inquire into
the Truck System, 1871. The general features of the system are so
constant that, it is believed, nothing has been lost by using an Eng-
lish instead of an American source, especially since the English
source is generally available and compact.
I08 THE LABOR LAW OF MARYLAND [254
the truck system is usually attended by much more sinister
forces.
The truck system is usually sustained by the maintain-
ance of long intervals between pay days, although in Scot-
land it was found to exist where the interval was only two
weeks. Now the miners as a class earn just about the mar-
ginal subsistence wages and have very little chance to be
provident. If the employee does not begin his employment
under the necessity of obtaining credit, he has many chances
of acquiring this unenviable position. The company store
avails itself of this opportunity in two ways. Sometimes
it merely extends credit to the laborer, establishing a sort
of lien on his accruing wages and collecting this lien by a
system of bookkeeping in the company's office or by setting
up a collection office so close to the paymaster's window
that escape from its clutches is impossible. Its credits are
therefore much safer than those of any chance competitor.
Sometimes, where there exists the system of advances
from the company's coffers on the men's wages, the store
profits by a kind of moral compulsion to spend this volun-
tary advance in the company store, although more tangible
constraint is not unknown: "black lists are often kept of
slopers [those who do not spend the advances in the com-
pany store] ; threats of dismissal were repeatedly proved;
and cases of actual dismissal . . . are not rare."^^ More-
over, even the most provident among the employees seem
to think it to their advantage to deal at least to some extent
at the company store: it is a natural impression for the
worker to think that his job is more secure if he caters to
his employer. The dominance which the employer can
secure over the laborer is evident, the double profits which
he can reap are enormous. And, moreover, the laborer
rarely gets fair play, for monopoly and the credit features
of a company store allow the owner to advance prices to a
"Report of the Commissioners Appointed to Inquire into the
Truck System, 1871, p. xvi.
255] "^"^ TERMS OF EMPLOYMENT IO9
considerable extent. The truck system, indeed, seems to
call most urgently for state regulation.'^
In legislating upon this subject Maryland has had a check-
ered experience. The coal fields in the two western coun-
ties of the State furnished an ideal opportunity for the
growth of the company store ; and, though the conditions
and the acts passed to meet those conditions are not of prac-
tical importance to-day, yet because of the number of these
laws and because of the decisions based upon them it has
been thought worth while to spend enough time on them at
least to outline them. As far back as 1868 the legislature
decreed that " no railroad or mining corporation . . . shall
own, conduct or carry on any store, or have any interest in
any store."^* This law does not seem to have been very
effective, for two other laws, this time local in their effect,
were later enacted. By these every corporation engaged in
mining or manufacturing or operating a railroad in Alle-
ghany and Garrett counties was compelled to pay the wages
of its employees in legal tender of the United States f^ and,
in Alleghany County, it is further provided that " no such
corporation . . . shall issue any script or metallic or paper
checks in payment of the sums due such employees, nor
shall such employees make any contract with their employ-
ers by which such employees shall be compelled to purchase
their supplies, merchandise or goods from any private or
company stores owned and operated by said employers ; nor
shall . . . [the employers] exercise any influence whatever
... to compel their employees to deal with any particular
merchant or storekeepers."^*
This last amendment makes this law about as inclusive
and adequate as it is possible to make a law regulating such
a multiform evil. It is the direct outgrowth of a Maryland
8^ A regulation and prohibition of the truck system has been held
constitutional in Knoxville Iron Co. v. Harbison, 183 U. S. 13.
3* Laws 1868, Ch. 471, Sec. 217; Code 1911, Art. 23, Sec. 311.
35 Code Public Local Laws 1888, Art. 1, Sec. 185; Laws 1892,
Ch. 445.
36 Amendment added by Laws 1900, Ch. 453.
no THE LABOR LAW OF MARYLAND [256
case" construing an allied act and of a Supreme Court
decision.^^ To understand this law a little history must be
indulged in. The local law for Alleghany County as first
passed was declared constitutional as a justified exercise of
the police power of the State in Shaffer v. Union Mining
Co. f^ but it was held in this case that an assignment of
wages to merchants who were tenants of the mining com-
pany was not included within the prohibition of the act.
This decision much weakened the law, for the truck sys-
tem has been found just as noxious when the store is run
by tenants of the company as when run by the company
itself. The law in fact proved inadequate and there was
passed a bill rendering it imlawful for any officer or direc-
tor of a mining or railroad corporation to have any interest
in any general store in Alleghany County.*" This act was
aimed at what has recently become well known as interlock-
ing directorates, but it was almost immediately declared
unconstitutional as interfering with the equal protection of
the laws.*^ " Though it was perfectly competent," say the
court, " for the legislature to prevent railroad and mining
corporations from engaging in the business of bartering or
selling goods . . . ; yet it was not within the power of the
General Assembly to deny to particular individuals who
happened to be officers of those corporations, and merely
because they were such officers the right which every other
citizen of the country . . . possessed to sell goods." And
further, " the owners of a mine have no other control over
the employee * than that which may result from employing
him, etc. ; and every other employer of labor has precisely
the same control over those who obtain or wish to obtain
employment with him.' "*2 In this case the court clearly
refused to take judicial cognizance of the truck system and
3^ Luman v. Kitchens, 90 Md. 14; 46 L. R. A. 393.
38 Knoxville Iron Co. v. Harbison : see above.
»^ 55 Md. 74.
*o Laws 1898, Ch. 493.
*^ Luman v. Hitchens ; see above.
*2 Quoting from Frorer v. People, 141 111. 171 ; 16 L. R. A. 492.
257] ^^^ TERMS OF EMPLOYMENT III
especially of the truck system as it flourished in Alleghany
County, Maryland. The case was decided on purely legal
grounds ; and, being one of those cases in which constitu-
tionality was peculiarly a question of fact, it is submitted
that the court was in error. This case, however, is not so
reactionary and destructive as a case which followed it, that
of Luman v. Hitchens. This case led to the amendment of
the earlier law and the amendment, as has been intimated,
is really more efficient than the unconstitutional act.
Thus far only those laws directly attacking the truck
system have been considered ; but since the truck system
depends for its maintenance upon long intervals between
pay days, acts regulating the time of pay will be practically
as efficacious as the out-and-out company store laws.
Maryland has three such acts on her statute book, though
it is probable that only one is really constitutional. This is
a law contained in the corporation article of the code de-
creeing that " every association or corporation doing busi-
ness in the State of Maryland employing wage earners . . .
in the business of mining, manufacturing, operating a steam
or electric railroad, street railway, telegraph, telephone or
express company shall make payments in lawful money of
the United States semi-monthly to said employees."*^ This
law seems to include all businesses mentioned in the previ-
ous law pertaining to corporations engaged in mining and
shipping coal in Alleghany County,** so that this earlier law
is entirely superseded. A later act was passed, however,
applying the same terms to " all corporations and individual
mine-owners . . . engaged in mining coal or fire clay in
Garrett County."" This addition of " individual mine-
owners " was the result of the decision of Luman v.
Hitchens,*^ which was interpreted as based on the singling
out of corporations for stricter regulations. In State v.
Potomac Coal Company,*^ however, the court on the ground
"Code 1911, Art. 23, Sec. 123.
"Laws 1896, Ch. 133.
*^ Laws 1910, Ch. 211.
*^ Cited above.
*'ii6 Md. 380.
112 THE LABOR LAW OF MARYLAND [258
of the earlier case declared the later act unconstitutional as
a violation of the "equal protection of the laws" clause
because the law was confined to the mining industry in the
one county. The court again based its decision on purely
legal grounds and seems to have narrowed the police power
to an unreasonable extent. Though the court's argument
seems discouragingly restrictive, and not specifically based
on facts, the facts do nevertheless to a great degree uphold
it, for the truck system in 191 1 was not nearly so insidious
as it was when the court refused to recognize it in 1899. It
is, however, lucky that the adverse decision of the court
came after the truck system had virtually disappeared, for
it would have been practically impossible to legislate against
it if the industries in which it was prevalent could not have
been reached by special legislation.
Any discussion of state regulation of the terms of em-
ployment should include at least a mention of the tendency
towards state aided pensions for sickness, old age, unem-
ployment and the like. This movement has attained great
prominence in many foreign countries, and recently Great
Britain has followed the lead of the more radical Domin-
ions. One such scheme of state aid in the unemployment
insurance of labor unions will be discussed in the last chap-
ter as a means whereby the state might obtain control of
union affairs. As such, as a governmental device, these
pensions are perhaps justified; but, as purely social legisla-
tion, they are quite beyond the police power of the state
as it is conceived in this study, whether we define the police
power from a legal or a legislative point of view.
CHAPTER VI
Some Miscellaneous Laws
There will be considered in this chapter a number of laws
which are only incidentally labor laws, but which play an
important part in the legal and social welfare of Maryland.
These will be treated under four heads : ( i ) license laws ;
(2) laws governing attachments and liens for wages — laws
of legal practice and procedure primarily; (3) child wel-
fare laws; and (4) State employment laws.
Licenses. — There is in Maryland the beginning of a li-
cense system. In so far as it is intended for a comprehen-
sive system of licensing occupations in order to make the
State a sponsor for the proficiency of its working people,
the Maryland license laws are really only a beginning, but
compared with the license laws of other States, they seem
fairly extensive. Licenses are required of barbers, plumb-
ers and chauffeurs throughout the State, and of electricians,
horseshoers, moving picture operators, stationary engineers
and master stevedores in Baltimore City. Practically the
only important occupation licensed in other States which is
not licensed in Maryland is mining; but withal the Mary-
land miners are an efficient and intelligent class.
Licenses are required by the State for two reasons.
Some license laws, as, for instance, those controlling ped-
dlers and real estate dealers, are enacted purely for revenue
purposes. They indirectly serve as police measures, but
their primary purpose is to secure revenue.^ The other
class of license laws, beginning with those regulating the
practice of medicine and law and extending down to horse-
shoers, are enacted primarily as police measures to protect
the public from quacks and inefficient workmen. To this
1 See Coates v. Locust Point Co., 102 Md. 297.
8 113
114 THE LABOR LAW OF MARYLAND [260
class belong all the laws affecting the laborer except per-
haps the master stevedore law,^ which as it now stands in
its emasculated form is hard to understand. As first en-
acted, it required both a license fee and a bond to secure
the payment of wages to the journeymen stevedores. The
Court of Appeals, however, declared the bonding provision
unconstitutional, but did not question the licensing section ;'
yet it is hard to see why, if the State can protect those work-
ers who are hired by a master stevedore against fraud and
insolvency by a twenty-five dollar license fee, it cannot more
adequately protect them by a thousand dollar bond. The
regard of the courts for the historical activities of the State
and their aversion towards new modes of State activity is
perhaps the only explanation.
The other laws,* if considered together, suggest an inter-
esting hypothesis. Except for the chauffeurs, an exception
which is easily explained, all the occupations licensed in
Maryland are organized into substantial unions. Is the
State, perhaps unconsciously, rendering a most valuable aid
to the organizing of these occupations? That the unions
are strongly in favor of these laws and that they put forth
every effort of which they are capable to secure them is an
unconcealed fact; that their efforts are of much avail and
that the results are beneficial is more debatable. That these
laws are of some use seems indisputable. A typical instance
is furnished by the operation of the laws of the Middle
Western States licensing miners. When a strike is the or-
der of the day, the men in the mines stop work and the mine
owners are unable to fill their places because of the lack of
licensed men outside the ranks of the strikers. This is true,
2 Baltimore City Charter 1915, Sec. 700A.
a Steeken y. State, 88 Md. 708.
*The various laws are codified as follows: Barbers, Code 191 1,
Art. 43, Sees. 209-222; Chauffers, Code 191 1, Art. 56, Sec. 139; Elec-
tricians, Baltimore City Charter 1915, Sec. 663, m-q; Horse-shoers,
Baltimore City Charter 1915, Sec. 515, a-f ; Moving Picture Opera-
tors, Laws 1912, Ch. 814; Plumbers, Code 191 1, Art. 43, Sees. 223-
229, with exceptions contained in Laws 1912, Chs. 764, 845; Station-
ary Lngineers, Baltimore City Code 1906, Sec. 427, as amended by
Laws 1910, Ch. 662, and Sec. 428.
26 1 ] SOME MISCELLANEOUS LAWS II5
of course, only if employment at the time of the strike is at
a high ebb ; but employment usually is at a high ebb when a
strike is essayed, for this weapon is only efficient in pros-
perous times. The a priori argument advanced as to the
benefit to the unions of licensing laws seems again to be
borne out by the fact that most licensed occupations are
organized, though, here too, the argument is not conclusive
because of the probable functional relation of organization
and license laws. The argument based on the unorganized
condition of such licensed occupations as trained nurses and
chauffeurs, which is often used to offset that conclusion that
licensing and unionization are closely related, seems hardly
tenable because of the inherent nature of these occupations.
That licensing is not a sufficiently strong unionizing device
to unionize unorganizable occupations is freely conceded,
but it is nevertheless strongly maintained that it is a stimu-
lus towards organization. The desirability of unionization
by means of a licensing system is doubtful. It certainly
tends to make the union policy one of restriction rather
than of progress ; and if its effect is to cause the American
unions to pattern their policy after that of the British
unions, it is open to strong disapprobation.
The administration of these laws is not of much impor-
tance in this study and as it is practically the same in all
the laws, one explanation will suffice. Except for the chauf-
feurs, where the administration is quite naturally in the
hands of the automobile commissioner, all of the laws are
enforced by a board generally of men practiced in the regu-
lated occupation and generally appointed by the governor.
The meetings of this board are in most cases left to the dis-
cretion of the board itself, though sometimes a minimum is
fixed and sometimes, even in general laws, a certain number
of meetings must be held in Baltimore. The members of
the board are usually paid a per diem and travelling ex-
penses to be obtained from the fees of the applicants for
licenses. The board is allowed full discretion in setting the
examination where an examination is required, and this dis-
Il6 THE LABOR LAW OF MARYLAND [262
cretion seems well placed because of the practical training
of the members of the board. The applicant must qualify-
only once before the granting body, but in the case of
plumbers, moving picture operators and stationary engi-
neers the license is good for only one year and the worker
is of right entitled to a renewal upon the payment of a re-
newal fee. There has been some litigation as to the inter-
pretation and application of these laws,^ but since these laws
are not of great importance in the sum total of labor legis-
lation of the State, the litigation needs no discussion.
Attachments and Liens. — There must next be considered
certain laws which, if not in all cases a protection of the
laborer, aim to further his welfare in legal proceedings.
Maryland does not hold any peculiar position in regard to
these laws, neither above nor below the average, for it has
been generally agreed that they are just and necessary and,
in most States, are of the same general nature. They in-
clude mechanics' lien laws, laws preferring wages in assign-
ments and similar laws. These laws are justified upon the
ground that the workingman, since he must always work a
certain length of time before he receives his wages, is al-
ways to a degree involuntarily in the debt of his employer.
The employer really stands more in the nature of a trustee
to the workingman than of a debtor, for the laborer hardly
looks upon his contract as one in which he extends credit
to the employer. It is right, therefore, that the laborer
should have greater security for his wages than the ordi-
nary debtor for his debt. The truck laws, which have al-
ready been considered, are a related branch of legislation,
which seems proper irrespective of the conditions of the
laborers as a class.
In pursuance of this policy, the Maryland legislature
early began to accumulate these laws on the statute books.
Thus there are mechanics' liens extending to buildings, ma-
» Concerning the plumber law, see Davidson v. State, 77 Md. 388.
Md 88 '"^^'■P''^*^*-'*°" °^ ^^^ ^^'■ber law, see State v. Tag, 100
263] SOME MISCELLANEOUS LAWS II7
chines, wharves, bridges, boats" and even wells in Garrett
County,'' giving to those engaged in the construction of these
structures priority in the security for their wages over all
except in the case of vessels, prior mortgages and sales. So
also, in insolvency assignments, wages due for not more
than three months are preferred to all claims except prior
recorded liens on the property f and in an execution against
property in Alleghany and Garrett counties sufficient of this
property is exempted to pay all wage claims.'' In a differ-
ent spirit but again from public policy toward all and not
toward a class is the exemption of all tools and mechanical
instruments from execution on a judgment. ^^ Still differ-
ent and really quite without the scope of labor legislation
are those laws regulating strictly the attachment" and as-
signment^' of wages. These last are merely mentioned
because the words " wages " or " laborer " occurs in them
and, therefore, necessarily the workingman is affected by
them ; they are not social legislation to so great an extent
as are those, for example, preferring the laborer in insol-
vency.
Child Welfare. — A third group of laws deal with chil-
dren, apprenticeship and education. Their philosophy is
the same as that of the laws considered in the preceding
chapter, which the State has enacted in conservation of child
life. Their subject matter, however, is not the relation of
employer and employee, but the policy of the State toward
its children and, hence, is not included in the terms of
employment.
Historically, the apprentice law came first. When it is
remembered that the first Maryland enactment of this kind
was as early as 1715,^* it is hardly necessary to explain
*Code 191 1, Art. 63, Sees. 1-52.
■^ Laws 1894, Ch. 608.
^ Code 1911, Art. 47, Sec. 15.
» Code Public Local Laws 1888, Art, 1, Sec. 193 ; Art. 12, Sec. 149.
10 Code 1911, Art. 83, Sec. 10.
1^ Code 191 1, Art. 9, Sees. 33-34.
12 Code 1911, Art. 8, Sees. 11-17.
13 See Laws 1715, Ch. 19.
Il8 THE LABOR LAW OF MARYLAND [264
that the State has not seen fit to regulate the terms of ap-
prenticeship, which it has properly left to the individual and
especially the union, but has merely laid down the funda-
mental principles upon which the contract or status of ap-
prenticeship is based. The law as it now stands," for in-
stance, allows the father, but not the mother,^^ to bind out
a minor child until the age of twenty-one in the case of
males and eighteen in that of females. The Orphans' Court
may also bind out for the same term any orphan whose in-
heritance is not sufficient to support him, or any other child
whose parents fail or are unable to support him. Of course
the prohibitions against child labor are binding upon the
Orphans' Court.
Then there is the elaborate school attendance law" of
1912 which was passed in connection with the child labor
law of that year and which requires every child not men-
tally deficient between the ages of eight and fourteen to
attend school throughout the entire session, and also every
child between the ages of fourteen and sixteen unless he
has been granted an employment certificate. An efficient
and complete administration has been provided in this act
and in these respects it is perfectly adequate. The useful-
ness of the act, however, depends upon the general useful-
ness of the school system, and although the Maryland school
system is perhaps above the average, it still falls short of
the highest standards. Without going beyond the scope of
this study mention may be made of the schools of mining
which have been authorized in Alleghany County for the
large mining population of that county.^^
The latest activity of the State in the field of child wel-
fare is the limited mothers' pension law of 1916." Here
again we have a stretching of the function of the State
until it verges rather dangerously upon socialism. The law,
i*Code 191 1, Art. 6.
13 Baker v. Lauterback, 68 Md. 69.
1^ Laws 1912, Ch. 173.
1^ Code Public Local Laws 1888, Art. i, Sees. 218-225.
1* Laws 1916, Ch. 670.
265] SOME MISCELLANEOUS LAWS II9
however, though properly classed as social legislation, is
hardly in the rubric of labor legislation, and an intensive
examination of its philosophy would be superfluous. " Any
mother of a child or children under the age of fourteen
years, whose husband is dead, and who is unable to support
it or them and maintain her home" may apply for relief
to the county commissioners in the counties or to the special
Board for Mothers' Rehef for Baltimore City. If, after in-
vestigation, it is found "that unless relief is granted, the
mother will be unable to support and educate her children,
and that they may become a public charge," she is referred
to the Juvenile Court which may order to be paid her twelve
dollars per month for the oldest child, ten dollars for the
next, and six dollars for each additional child up to forty
dollars a month. The administrative agency is to keep in
touch with its dependents, to visit them at least once every
two months, and to see that the relief is properly applied
for the welfare of the children.
State Employment. — The last series of laws which fall
into a clearly defined group are those laws in which the
State regulates the terms of employment of its own em-
ployees or those of its subdivisions. In the United States
this kind of legislation is generally political in its nature,
it is generally passed primarily as a bid for the labor vote
and only secondarily as a social measure ; but on the Conti-
nent, in Germany particularly, this species of legislation
plays an important part in the administrative organization
of the country.
In the first place, it has been decreed that preference
shall be given to voters in filling the jobs on the public work
of Baltimore City." A probable reason for this law is to
enable the party in control of the city government to use
the city's money for electioneering purposes. The other
laws regulating this subject are not so brazen, yet their
political effect is as certain. " For all laborers, workmen
or mechanics who may be employed by or on behalf of the
^3 Baltimore City Code 1906, Art. 35, Sec. 6.
I20 THE LABOR LAW OF MARYLAND [266
Mayor and City Council of Baltimore," eight hours shall
constitute a day's work except in emergencies. Moreover,
" the rate of per diem wages paid to laborers, workmen or
mechanics employed directly by the Mayor, etc., shall not
be less than two dollars per diem," and where the work is
contracted out " not less than the current rate of per diem
wages in the locality where the work is performed shall be
paid " f° and these wages shall be paid weekly. ^^ This leg-
islation has always been upheld as constitutional, but it
hardly seems that the State is performing a proper legisla-
tive function in enacting these laws. It is quite true
that the State has a right to stipulate in its contracts any
terms that it wishes, but efficiency demands that an admin-
istrative head have some discretion in respect to the terms
of employment which he contracts for. The laborer would
hardly suffer from the exercise of administrative discre-
tion and its resulting elasticity. Yet it must be admitted
that practically every State of the Union has fek the neces-
sity of enacting legislation of this type.
Massachusetts State employment legislation represents a
more extreme type. Superficially it may seem a startling
step towards socialism, but on closer examination it seems
to have been an attempt to secure efficient administration.
It is aimed at attaining that thing, so harsh-sounding to the
democratic ear, yet seeming so necessary in a representative
government, a bureaucracy. In the first place, a civil service
examination must be passed before one is eligible for a state
job." Then to secure some sort of permanency in state
employment and to make this employment more attractive,
a state-aided old-age pension scheme is devised for state,
county and city employees.^^ It is a well-known fact that
Massachusetts has a very efficient government. How far
Its efficiency is due to the measures just mentioned is diffi-
20 Laws 1910, Ch. 94, Sec. 2.
" Baltimore City Code 1906, Sec. 47.
" Massachusetts Revised Laws 1902, Ch. 19, Sees. 12-13.
Mass. Laws 1910, Ch. 559; Laws 191 1, Ch. 532.
267] SOME MISCELLANEOUS LAWS 121
cult to estimate ; but in view of European experience it
seems that something hke the Massachusetts plan is neces-
sary to invigorate American administration.
Laws which defy classification are : the Sunday rest law,^*
the law establishing Labor Day,^° a law requiring every
employer to allow all of his employees sufficient time for
voting at all elections,^® and a law of 191 2 requiring physi-
cians to report all cases of occupational sickness which they
are called upon to attend.-^ The last named law as it now
stands is designed merely for statistical purposes ; but since
it may lead to greater things in the way of the prevention
of occupational diseases it is properly treated as a labor en-
actment. Finally, in pursuance of the special care which
the law has always had for seamen, there is on the Mary-
land books a law protecting them from the solicitations of
any kind of sailors' employment agencies.^*
24 Code 1914, Art. 27, Sec. 435.
25 Baltimore City Code 1906, Art. 15, Sec. 2.
26 Code 1911, Art. 33, Sec. 91.
27 Laws 1912, Ch, 165, Sec. 5A.
28 Code 191 1, Art. 84, Sees. 1-7.
CHAPTER VII
The Administrative System
The lawyer usually feels that administration and law are
things apart and a legal treatise generally contents itself
with a consideration of the substantive law, leaving admin-
istration to the care of the social reformer. With the ex-
ception of the law of the labor union, however, the present
study has been confined to the analysis of the works of
social reformers. Moreover, we have been dealing with the
science of legislation quite as much as with the science of
law, and legislation generally includes administration. The
common law and most codifying legislation is remedial,
compensatory; labor legislation is restrictive, prohibitive.
Labor legislation, though it is often attacked as class legis-
lation in its narrow and obnoxious sense, is in reality en-
acted for the benefit of the community as a whole; its vio-
lation is more in the nature of a crime against the state
than an injury to the individual. In the community, there-
fore, lies the responsibility of guarding against the viola-
tion of this legislation, against the slightest deviation from
its prescriptions. In the community, not in the individual,
must rest the initiative of bringing this law into operation.
An adequate labor law is accordingly dependent upon
efficient administrative provisions. As a chain is no stronger
than its weakest link, neither is labor legislation more effi-
cacious than its administrative system. Considering Mary-
land legislation from the standpoint of administrative effi-
ciency one cannot grant it high rank. Even the greatest
optimist would find himself somewhat doubtful, to say the
least, of the sagacity of the sovereign people of Maryland
after a talk with those charged with the administration of
the labor law. In order to give this subject adequate treat-
122
269] THE ADMINISTRATIVE SYSTEM 1 23
ment in this study, it has seemed best to give first a com-
plete description of the administration as it now exists and
has existed, refraining as far as possible from any critical
comment. Having tried to understand the existing system,
we shall subject it to criticism and then attempt to outline
an adequate scheme of administration.
Before going any further, it must be understood, the
title of this chapter to the contrary notwithstanding, that
there is no administrative system for carrying out the labor
laws of Maryland. Administration there is, but system —
hardly. This criticism, of course, has been partly met by the
legislation of 1916; but this reform — for reform it was —
hardly necessitates any qualification of the statement that
Maryland, like most other American States, is happy-go-
lucky when it comes to legislating. A preconceived system
is rarely, if ever, thought out. An evil arises ; it is legis-
lated against; and, if administration must be provided for,
a special official or board is designated. That is what has
happened in the labor legislation. In spite of the recent
centralizing amendment, there are still eight separate and
distinct administrative agencies for Maryland labor law,
only one of which, the State Board of Labor and Statistics,
is charged with the administration of more than one law.
Besides this board, there are the State Board of Health,
the city inspector of buildings, the city health commissioner,
the Industrial Accident Commission — all real administrative
devices, and the police marshals, the constable of Carroll
County, and the city collector of water rents, who perform
administrative functions in connection with the labor law.
State Board of Labor and Statistics. — By far the most
important administrative agency is the State Board of Labor
and Statistics. This, by the act of 1916,^ is the Maryland
equivalent of a labor department, though still a rather cir-
cumscribed equivalent. It is the successor to and an im-
provement upon the old Bureau of Statistics and Informa-
1 Laws 1916, Ch. 406.
124 THE LABOR LAW OF MARYLAND [2/0
tion, which, as originally established in 1884,- was hardly
more than what its name implies, a bureau for the dissemi-
nation of information, but which by gradual accretion and
the accompanying process of selection was burdened more
and more with the enforcement of the labor law, until within
the last two or three years it had come to confine itself en-
tirely to labor problems. The new state board is, of course,
entirely devoted to labor problems. The old bureau was
the only centralizing influence in the Maryland labor law
and the endeavor of the legislation of 1916 was to increase
this centralization.
The State Board of Labor and Statistics is composed of
three commissioners appointed by the governor for a two-
year term. One of the commissioners is designated chair-
man by the governor at a salary of twenty-five hundred dol-
lars and the other two are merely advisory members of the
board. The chairman is the executive head of the board
and most of the activities of the department are directed by
him personally. The board as a whole meets only once
a month to determine the policy of the department. Its
business, however, is, it would seem, more to ratify the acts
of the chairman than to lay down any positive policy, for
the chairman with his more intimate knowledge of the af-
fairs of the department should be able to dictate rather
eflfectively the administrative program of the board. This
is especially so for the reason that the duties of the board
are not administrative in the broader sense, as described in
the fourth chapter, but are almost entirely executive. The
Maryland legislature followed the plans of New York and
Massachusetts, but did not give the commissioners the ad-
ministrative powers which they have in those States. The
board is a good beginning, but as the law now stands, the
two advisory members seem somewhat superfluous.
"The State Board of Labor and Statistics is authorized
and empowered to appoint . . . such deputies, inspectors,
assistants, and employees of every kind as may be necessary
2 Laws 1884, Ch. 211 ; Code 1911, Art. 89, Sec. i.
2/1] THE ADMINISTRATIVE SYSTEM 125
for the performance of the duties now or hereafter imposed
upon it," provided, however, that all appointments shall be
subject to the approval of the governor.^ The board has
now* sixteen employees, including two medical examiners,
two boiler inspectors, two mining inspectors, its regular in-
spectors, officers to issue child labor permits, clerks and
stenographers. These positions are all frankly regarded
as political plums. The only qualification needed by an ap-
plicant is sufficient political " pull " in his or her ward. Not
only that, but since the board cannot hire the cheapest ser-
vice without the approval of the governor, it results that
when once employed, it is impossible to discharge for any
reason an inspector upon whom the party in power depends
to carry his ward. This is absolutely true of the men em-
ployed in the department. The women, it is said, are easier
to remove on account of inefficiency because they do not
swing so many votes. Moreover, I have been told, though
my informant is a woman, the then assistant-chief of the
old bureau, that as a whole the women are more likely to
be efficient than the men ; and certainly they take their work
more seriously. Yet it cannot be proposed that all the in-
spectors should be women, for men are required for some
jobs. About half the employees of the board are women.
The duties of the board are many and varied. Inherited
from the old bureau is its duty to collect and disseminate
information. The board is " to collect statistics and ex-
amine into the condition of labor in this State, with especial
reference to wages, and the causes of strikes and disagree-
ments between employers and employees."^ In the law are
set forth many other matters of economic interest concern-
ing which the board is ordered to investigate and publish
information, but of late the board has confined itself rather
closely to labor conditions. In pursuance of the duty im-
posed upon it by these sections of the law, the board pub-
lishes annually a lengthy report to the governor.
3 Laws 1916, Ch. 406, Sec. i, Par. 3.
*July, 1916.
5 Code 191 1, Art. 89, Sec. 2; Laws 1888, Ch. 173.
126 THE LABOR LAW OF MARYLAND [2/2
The board is also empowered " to organize, establish and
conduct free employment agencies, in such parts of the
State as it may deem advisable, for the free use of the citi-
zens of the State. "^ This is a great improvement over the
old law, which provided for only one agency, but it is still
deficient in that the legislature does not seem to realize the
seriousness of the problem of unemployment. It is now
usually held that a system of free employment offices which
aims to increase the fluidity of the labor market is one of the
most efficient remedies of unemployment.'^ As a conse-
quence of this, the State should expend every means to fur-
nish the most adequate system. This Maryland has hardly
done. The board has established agencies in Baltimore,
Cumberland, Hagerstown and on the Eastern Shore, but
these agencies are not closely enough coordinated. In con-
nection with the establishment of free employment agen-
cies, the board should have the licensing and supervision
of private employment agencies; but this power is vested in
the city collector of water rents.*
The state board, it will be remembered, has also in its
charge the administration of the law providing for the set-
tlement of labor disputes.^
The chief duty of the board, however, is the inspection
of factories and workshops. There are three inspection
laws which the board enforces, the factory inspection and
industrial registration law, the child labor law, and the
women's ten-hour law. For this inspection the board has
appointed five inspectors in Baltimore City, one, with the
possibility of an increase to two in Western Maryland, and
one on the Eastern Shore, each at a salary of about one
thousand dollars. For the purposes of this inspection, Bal-
« Code 191 1, Art. 89, Sec. 2, Par. 7, as amended by Laws 1916, Ch.
406, Sec. 2.
J For a full treatment of this subject, see an article on state em-
ployment agencies by Wm. M. Leiserson in 29 Political Science
Quarterly, p. 28.
8 Ordinances of Mayor and City Council of Baltimore, 1909-10,
No. 433. "^"^
» See Chapter II.
273] THE ADMINISTRATIVE SYSTEM 12/
timore is divided into five districts, each of which is as-
signed to an inspector who is responsible for the inspection
and conditions in his district. How this responsibiHty is
enforced has not yet been worked out and seems to be in
a rather vague state, but a system of checking up could be
easily instituted. But this localization of the work of an
inspector can lead to valuable results if the inspector by
frequent visits can get into friendly relations with the em-
ployer and persuade rather than force him to better the
conditions of his plant. It is doubtful whether this con-
summation can be attained under the present law, but the
beginning is worth while. In the first place, the laws as
they now exist lay down exact rules and leave nothing to
the discretion of the board or inspector, and the instruc-
tions given to the inspectors accentuate the routine charac-
ter of their work. In the second place, the inspector has
to inspect in pursuance of three separate acts and it seems
that the districts will be too large for the intensive inspec-
tion that this plan requires. It is doubtful in fact whether
five inspectors are sufficient for the minimum efficiency of
the laws. Finally, the character of the inspectors who are
political appointees of doubtful efficiency is such as to make
decidedly improbable the attainment of the best results and
to render doubtful the careful inspection which the laws
require.
Turning now to the first of these laws which the board
enforces, the factory inspection and industrial registration
law,^" we shall examine the administration of it in detail
before considering the other two laws. It has already been
said that the inspection facilities for the enforcement of this
law are deficient both in quantity and quality ; but even
with four or five inspections per shop a year by trained in-
spectors, which would furnish an adequate inspection, it is
doubtful whether this act could reach the pinnacle of effi-
ciency. As far as obtaining information and statistics from
the employers and workers covered by this act, the board
i** Laws 1914, Ch. 779.
128 THE LABOR LAW OF MARYLAND [274
has full and discretionary authority, and the reports in this
respect are valuable, notwithstanding their incompleteness
due to the shiftless methods of the inspectors. When, how-
ever, the actual enforcement of the sanitary and safety pro-
visions of the law is considered it is obvious that the di-
vision of authority in the enforcement of this act makes
completeness impossible.
When the inspectors are sent out on their tours of inves-
tigation, their duty is to visit and inspect thoroughly every
factory, workshop or tenement shop in the territory to which
they have been assigned. Upon visiting the work place the
inspector notes the toilet conditions, the presence of fire-
escapes and the location of staircases, the existence of any
communicable disease, and, if the shop savors to the least
degree of tenement or loft shop, the inspector further meas-
ures the cubic capacity of the room. This is the routine
whether the inspection be within the regular investigation
or whether it be undertaken upon the application of a home-
worker for a license for his shop. The standards of the
inspection are the same in both cases, for the license, as
will be remembered, is revocable at any time by the board.
After completing the investigating for the day, the inspector
returns to the office and notes the results of his inspection
on the forms provided for filing. That is as far as the in-
spector goes.
The report as thus filed is subject to the authority of
three separate administrative agencies. The board has the
power in itself to enforce only the provision limiting the
number of persons employed in any room to one to each
five hundred cubic feet of air space. If the shop inspected
seems to lack adequate fire-escapes required by law, the
report is referred to the city inspector of buildings. In hrm
is vested the duty of visiting and inspecting all manufac-
tories employing twenty-five or more persons and of ruling
on the adequacy of fire-escapes." Neither of these duties
" Baltimore City Charter 1915, Sees. 80-81 ; Ordinances of Balti-
more, 1908-09, No. 155, Sec. 3, Pars. 6-7; Laws 1908, Ch. 495.
2/5] THE ADMINISTRATIVE SYSTEM 1 29
is very strictly enforced. The inspection he leaves entirely
in the hands of the State Board of Labor and Statistics, and
perhaps it is better so, although the city department has, in
fact, a number of inspectors. The provisions for fire-
escapes are interpreted so loosely that, as has been said,
they are considered fulfilled if the house in which the shop
is located has two staircases of any kind in different parts
of the building or one central staircase. The result of this
division of authority, as is always the case, is that the law
is practically nullified. The state board is afraid, and in
truth is hardly empowered, to make more stringent regula-
tions than those of the city building inspector, so that here
there is no compelling authority. The building inspector,
on the other hand, does not consider himself delegated with
any authority to protect the safety of the employees. As
the secretary of the department once said: "Oh, no; we
don't make any trouble. We are a kind of complaint de-
partment. The fire department and the labor department
send us their complaints and we try to straighten them
out." The "straightening" is hardly in the direction of
strictness.
As for the sanitary conditions of the shop, or tenement,
a different course of proceeding is established. In the first
place, it is provided by statute that before any license for a
tenement is issued the records of the local health depart-
ment shall be investigated, and if they show " the presence
of any infectious, contagious or communicable disease, or
the existence of any unsanitary conditions," the license may
be refused without any inspection of the room or apart-
ment. Usually, however, the room or shop is investigated,
and then the report referred to the local health department.
If the health department finds from its own records and the
report of the inspector that the place is sanitary, a license is
always issued by the board, for in this case as in others the
board refuses to adopt any higher standard than that set
by the more technical local department and here again the
standard is low. If the health department, on the other
9
1^0 THE LABOR LAW OF MARYLAND [2/6
hand, finds from an examination of the records and report
that the place is below the minimum, the license is with-
held until these defects are remedied, and even then it is
not issued until the approval of the health department is
obtained.
It is obvious from what has been said that however good
this law may be in its substantive provisions and however
complete may be the records obtained under this act, in final
results, because of the great division of administrative re-
sponsibility and the inefficiency of the personnel to which
is entrusted the enforcement, the law fails to realize a large
amount of its potential value.
Next in importance to the factory inspection law is the
recent child labor law.^^ As has been said in a previous
chapter, this is a most valuable act and in draftsmanship
one of the best on the statute book. The act goes into great
detail in establishing administrative provisions for its en-
forcement and an exhaustive study might profitably be
made of these administrative details ; but it will serve our
purpose in the general estimate of the Maryland system of
labor law administration merely to point out the salient
features of these administrative provisions.
After the inspections under the factory law, the next duty
of the inspectors is to investigate the ages and conditions of
employment of children. The inspection under this law
should be more efficient than under the law which we have
just been considering, for no skill is required and no tech-
nical training necessary. Even a political appointee should
be able to prepare a complete report. The task of the in-
spector is merely to see that the employer complies with
certain provisions, such as the keeping of a registry, to ex-
amine the certificates of any children who are below six-
teen, to ascertain the true age of any child who appears
younger than sixteen, the employer being compelled to fur-
nish within fifteen days satisfactory evidence that a child
apparently under sixteen is in fact over sixteen or to cease
12 Laws 1912, Ch. 731, as amended in 1916.
277] THE ADMINISTRATIVE SYSTEM I3I
to employ that child ;" and, finally, to tabulate the number
of children employed in the various occupations in the fac-
tory. If any child is employed in an occupation below the
age which the law provides, the inspector will notify and
warn the employer, but usually prosecutions and the pre-
liminaries are managed from the home office. One of the
child labor inspectors under the old bureau had in practice
been found to be more efficient than the others and she had
been assigned to investigational work similar to that per-
formed by the British lady inspectors. One section of the
law^* prohibits the employment of children under sixteen in
certain specified employments or " in any other occupation
dangerous to life and limb, or injurious to the health or
morals of such child." Instead of leaving the interpreta-
tion of this section to the discretion of the individual in-
spector, the bureau had assigned this more efficient inspector
to the work of ascertaining what are dangerous occupations
and was to issue administrative orders on the basis of this
investigation. This was really a notable step in advance
and fuller mention will be made of it later. It is to be
hoped that it will be developed further by the state board.
The task of issuing employment certificates and street
trade badges is a somewhat heavy one and when the act
first went into force the offices of the old bureau were
gwamped with applicants. Detailed provisions are made
in the act as to the requirements which must be fulfilled
before these permits are issued and granting them is not an
indiscriminate, clerical operation. In Baltimore City the
hoard is empowered to issue these employment certificates,
and in the counties the county superintendent of schools has
concurrent jurisdiction with it. In the offices of the state
board there is a special inspector at a higher salary, whose
only work is to issue these certificates and to keep a file of
the duplicates. The two physicians, also, earn their pay
merely by examining applicants for certificates. The re-
13 Ibid., Sec. 19.
" Ibid., Sec. 8.
132 THE LABOR LAW OF MARYLAND [2/8
ports of these examinations promise to become valuable
sociological statistics. In reality, the board issues the great
majority of the employment certificates for city and coun-
ties ; but when the school superintendent issues a certificate
in one of the counties he is empowered to employ a physi-
cian at a stipulated fee to make the examination and is re-
quired to transmit all records to the board. One of the
child labor inspectors is detailed to take charge of the issu-
ing of badges to boys under sixteen engaged in street trade.
Both in administrative provisions and administrative
practice this is one of the most satisfactory and efficient
laws in the Maryland labor code. Nevertheless, there is one
defect, perhaps practically unavoidable. This law and the
compulsory school attendance law dovetail exactly and, in
fact, the enforcement of these laws is indiscriminately con-
fided to attendance officers and inspectors from the State
Board of Labor and Statistics. The attendance officers and
the inspectors are responsible and report to different chiefs
who are themselves in no way related and have no official
correspondence. It seems that here a valuable opportunity
to check up results has been lost.
The other inspection law enforced by the state board, the
women's ten-hour law,^^ has no interesting administrative
features. The inspector merely notices that the substan-
tive provisions of the law, such as the posting of schedules,
are obeyed. This law, for political reasons, was formerly
enforced by a special bureau composed only of women.
One of the most obvious reforms of the 1916 amendment
was the placing of the administration of this law under the
supervision of the same agency which enforced the child
labor law.
Two other inspection laws were brought under the in-
direct control of the State Board of Labor and Statistics
by the 1916 legislature. The board with the approval of the
governor appoints two boiler inspectors for Baltimore City"
II D^i^^ ^^^^' ^^- 79. as amended in 1914 and 1916.
1016 Ch """^ ^'^^ Charter 1915, Sees. 572-589, as amended by Laws
2/9] THE ADMINISTRATIVE SYSTEM 1 33
and a mine inspector for Alleghany and one for Garrett
County.^'' Aside from this power of appointment and the
fact that the board supplies the boiler inspectors with office
rooms and receives annual reports from these officers, there
is no coordination between these separate agencies. The
legislature attempted to introduce a centralized system, but
merely centralized the structure, not the system. The boiler
inspection and the mine inspection laws have not been
changed by the amalgamation. The inspectors under these
laws are also political appointees, but the mine inspectors
must "possess a competent and practical knowledge of the
different systems of mining and [ventilation] . . . and of
the nature and constituent parts of the various gases found
in coal mines . . . and shall have had five years' practical
experience as a miner." In his reports he is to make rec-
ommendations for future legislation for safety in mining.^'
Finally, every physician attending a patient suffering
from any occupational disease must make a full report to
the state board which publishes the results in its annual
report.^^ Though a minor provision, it has possibilities and
already the reports make interesting reading.
State Board of Health. — Related to the work of the board
of labor is the work of the State Board of Health in enforc-
ing the Sanitary Inspection Law.^" This law applies only
to shops and factories manufacturing or handling food
stuffs and, as the bureau has nothing to do with these shops
except so far as they may be located in tenements or lofts,
there is not much overlapping in inspection. But, logically,
why should not this law be placed under the charge of the
State Board of Labor and Statistics, perhaps assisted by the
State Board of Health ?
The Sanitary Inspection Law, as will be remembered,
lays down numerous and definite specifications for the clean-
^'' Code Public Local Laws 1888, Art i, Sec. 196, and Art. 12, Sec.
150, as amended by Laws 1902, Ch. 124, and Laws 1916, Ch. 410.
18 Laws 1916, Ch. 410.
19 Laws 1912, Ch. 165, Sec. 5A.
20 Laws 1914, Ch. 678.
134 THE LABOR LAW OF MARYLAND [28O
liness and sanitary condition of factories or shops handling
food stuffs and more stringent rules for canneries. It is a
most carefully and scientifically drafted law. It may safely
be said to be in the highest rank among what may be called
regulative acts, a class of laws which, however, is giving
■way to general laws with provisions for administrative or-
ders. The Maryland law does indeed include a provision
for these orders ; but, not being absolutely essential to the
working of the act, none have been issued. The inspectors
of the State Board of Health have, then, for their guidance
in the administration of the law the specifications included
within the body of the law and nothing else. True, these
specifications are rather searching and well-defined, but it
is impossible that even the legislature could have foreseen
all the contingencies in which the law might be called into
play. Accordingly, with respect to details too minute to
refer to the Board of Health, numerous disputes as to the
interpretation and application of the act must arise. The
inspector is thrown back upon his own discretion and the
law is strictly or loosely enforced according to the tempera-
ment of the inspector. Now it has not been possible for
me to interview the employers affected by this law, but from
the class of inspectors who are employed by the Board of
Health it would seem a fair deduction that the act is admin-
istered leniently rather than strictly.
The full control over the administration of this act has
been placed by the Board of Health practically in the hands
of one member of that board, who has also charge of the
enforcement of the Pure Food and Drugs Act. He com-
bines the work of enforcing the two laws and uses the same
inspectoral force for both. There are six inspectors
scattered over the State. Owing to the fact that their
work as pure food insepctors necessitates keeping their
identity unknown so far as possible, it is the endeavor of
the supervisor to have the same man visit a factory at as
infrequent intervals as possible. The inspections are fre-
quent, about four a year, but the continual switching around
28 1] THE ADMINISTRATIVE SYSTEM I 35
of inspectors offsets to a great degree the advantages to be
gained from frequent inspections, among the most impor-
tant of which are the famiHarity of the inspector with the
plant and his personal amicable relations with the owner.
It may be said here that the Board of Health is noted as
being of the various State departments one of those least
contaminated by politics, and the inspectors may be efficient
so far as the Pure Food Law is concerned, in connection
with which all the technical work is done at headquarters.
An inspector, however, who has no technical training, whose
salary ranges in the neighborhood of one thousand dollars,
for whom there is little or no hope of promotion, and who
has no assurances of permanency of employment, is not
one to whom should be entrusted the enforcement of pro-
visions calling for the cleanliness " which the nature of the
employment will permit " or the detection of communicable
diseases. The act suffers both in the nature of the admin-
istration and in the class of inspectors to whom its enforce-
ment is entrusted.
Minor Administrative Agencies. — The Industrial Acci-
dent Commission, which is charged with the administra-
tion of the workmen's compensation law, may be dismissed
with the statement that it is wholly separated from all
other labor law agencies in the State. Likewise separated
from any other agency is the Baltimore City Commissioner
of Health in his performance of the duty imposed upon
him to inspect all mercantile or manufacturing establish-
ments in Baltimore City where females are employed to
gee that seats are provided for these employees-^ — a need-
less overlapping upon the Women's Ten Hour Law inspec-
tion. Similarly isolated and overlapping, the constable of
Carroll County inspects the ventilation in stone grinding
mills^ — certainly an incongruous agency for the adminis-
tration of labor laws. Hardly less so, however, are the
21 Ordinances of Baltimore, 1910-1911, No. 547.
22 Laws 1894, Ch. 202.
136 THE LABOR LAW OF MARYLAND [282
marshals of police or the police commissioners in their in-
spection of scaffoldings which are reported to be unsafe."
Suggestions for Reforms. — All the administrative agen-
cies charged with the enforcement of the Maryland labor
law have now been described or mentioned. On the whole
there is little less than absolute chaos. One department is
fairly well defined, but, on the whole, no more cohesion or
system is present than in a pan of peas. And yet the situa-
tion is not altogether hopeless. Other States have evolved
an orderly administration out of equally or more chaotic
labor laws upon a critical expose of that condition. It is
hoped that this criticism by merely reporting the results in
other States may lead to some such result in Maryland.
The first and cheapest reform needed is some method of
taking the personnel of the various departments out of poli-
tics. Much has already been said of the disastrous results
of the present methods of appointments to all positions in
the administration, so that only one instance further will
be cited. In 191 5 the elections for governor occurred on
the second of November and the term of office began on
January i, 1916. A Democratic governor was elected to
succeed a Republican. A week after the November elec-
tion I visited the Bureau of Statistics, as it then was, to in-
terview the assistant-chief. It was only half-past two in
the afternoon, yet there was not a single man in the office.
All the inspectors were Republicans and knew or thought
that they would lose their positions at the first of the year,
so they had practically refused to do any work at all.
It is perfectly obvious that some sort of civil service ap-
pointment is the prime essential to an efficient administra-
tion of the labor law. Whether this shall be by competi-
tive, technical examination or by qualifying, general exami-
nation with appointment vested in the head of the labor
department is a question somewhat outside the scope of this
study. The former has the advantage of securing techni-
cally efficient inspectors substantially freed from the taint
23 Code 191 1, Art. 48, Sees. 75-79.
283] THE ADMINISTRATIVE SYSTEM 1 3/
of politics ; the latter the advantage of securing all around
efficient inspectors who are also more subservient to and
often also more agreeable to the chiefs. The competitive
examination is perhaps more suited to the present status of
labor departments where there is a subdivision of functions
and where the inspectors are selected for one purpose alone
without much hope of promotion. The qualifying exami-
nation is more suited to the centralized system which has
been adopted wherever reform has been introduced, where
the inspector has various duties to perform in an inspectoral
way, where he must be acceptable in appearance and man-
ner to the employers, and where, moreover, as will soon be
seen, the appointment is guarded from politics by the na-
ture of the head of the department.
In addition to a civil service appointment, some means
must be provided to attract the desirable classes to the posi-
tions in the service. We can never in America hope to in-
spire in our citizens the regard for government service
which is present in the German, or perhaps even in the
English, heart ; but there is no reason why the government
service should not be lifted to a higher plane than that
which it now occupies. Salaries in the United States
compare most favorably with those abroad, so that there is
not much room for improvement in this direction without
involving great expense. Improvement is needed in re-
spect to the security of tenure, the opportunities for ad-
vancement, and the provisions for the disabilities of age or
accident. We have referred in the preceding chapter
apropos of the Massachusetts state pension law to the value
of a pension system for state employees as an incentive to
efficient administration ; but nowhere in the United States
does there seem to have been a proper appreciation of per-
manency and promotion as essentials in government employ-
ment. It is useless to press a priori arguments. In the
light of the wonderful success of the English system of gov-
ernment in general, one may demand, in the administration
1^8 THE LABOR LAW OF MARYLAND [284
of the labor law, a graded system of inspectors with pro-
motion for eflficiency and permanency of service.
Nevertheless, such a statement of the principles of ad-
ministration calls for some qualification. There must be
considered the inevitable conflict of an independent, bureau-
cratic administration and a politically responsible adminis-
tration. Abstract questions would lead us too far afield;
so, concretely, should the heads of the various departments
be selected absolutely by the governor or should there be
promotion from the ranks ? As the labor administration is
now constituted, it would seem perfectly feasible to vest
the selection of the entire force in a civil service board. The
only reason for the political appointment of the various
chiefs would be to secure uniformity of policy and politi-
cal responsibility and neither of these is necessary in the
Maryland system: the only policy should be an absolutely
strict adherence to the terms of the law, and removal of
the chiefs for cause by the governor provides all the respon-
sibility which could reasonably be expected. It is perhaps
unfortunate that all of these administrative agencies are
directly subordinated to the governor and that there is no
intermediate state officer responsible for them to the gover-
nor, but this deficiency does not invalidate the proposal
that as now constituted the labor administration should be
entirely divorced from politics. Under the scheme of ad-
ministration which is now to be described, however, the
present heads of departments would be merely chiefs of
bureaus who could be efficiently chosen by promotion from
the ranks, whereas the head of the unified department of
labor, be it an individual or a commission, would be selected
by and responsible to the governor. Not only administra-
tively but also politically the centralized administrative sys-
tem is the more desirable.
What has been termed the centralized administrative
system has only recently made its appearance in American
labor legislation. Labor legislation in the United States
has been a gradual evolution without any preconceived
285] THE ADMINISTRATIVE SYSTEM 1 39
plan, so that the administrative result has been a hopeless
hodge-podge. Under the influence of the movement for
efficiency, several States have recently completely reorgan-
ized their labor law administrations into logical, central-
ized systems. This reorganization is precisely what Mary-
land needs. Civil service reform would work wonders
v/ith that vaguely outlined thing which has up till now
been termed the Maryland labor department or labor de-
partments, but to obtain real efficiency Maryland should
have a true Labor Department embracing all the adminis-
trative agencies enforcing laws throughout the State. Such
a reform would involve some additional expense, but ex-
actly how much is hard to calculate because there would
be a great saving in the elimination of overlapping func-
tions. Such a reform would place some additional burden
upon the legislature which initiates it, but, in establishing
an administrative system to which the administration of
any future labor law might in a few words be referred, it
would relieve subsequent legislatures. The investigating
commissions in New York and Illinois have recommended
reorganization of this kind, and sufficient has been written
about it to enable an amateur in administration to suggest
reforms for Maryland.
The reorganized Maryland Department of Labor should
be presided over by a commissioner or commission ap-
pointed by the governor. The head of the department
should be the only position filled by appointment. His
deputies, if there are any, the heads of the various bureaus,
the division chiefs, and the inspectors would be selected by
the merit system. In this way the English administrative
system would be approximated, that is, a political chief with
civil subordinates. If sufficient confidence can be placed in
the head of the department, he should be given the power
of choosing his subordinates from a list of qualified appli-
cants and this method is especially applicable to the chiefs
of bureaus who must have other qualifications than those
which can be ascertained by examination. Everything pos-
140
THE LABOR LAW OF MARYLAND [286
sible should be done to bring about a condition in which
the head of the department will be fully trusted ; but, if he
is not, appointment to all subordinate positions should be
by competitive examination.
The Department of Labor should be divided into six
bureaus : the bureau of inspection, the bureau of statistics
and information, the bureau of arbitration and mediation,
the bureau of mines, the employment bureau, and the indus-
trial accident commission. The bureau of inspection would
be the most important of these and it might be feasible in
the present condition of the labor law to put in charge of
this bureau the Commissioner of Labor himself with the
aid of a deputy if necessary.
The bureau of inspection should be divided into five di-
visions : the division of factory inspection, the division of
home-work inspection, the division of mercantile inspection,
the division of steam boiler inspection, and the division of
industrial hygiene. It may be objected that this subdivision
is too minute for present conditions in Maryland. To a
certain degree the objection is valid : some of the divisions
may have little to do and one man may be sufficient to fill
them. This plan, however, is not to meet present condi-
tions only, but is to furnish a basis for all future labor leg-
islation, and we may be sure that future labor legislation
will be quantitatively greater than in the past. One of the
first duties of the legislature after reorganizing the admin-
istration should be to make some of the local laws state-
wide, for in the main they seem to have been enacted
locally because of the lack of state-wide administrative
agencies. Now the inspectors in the factory, home-work,
and mercantile divisions will all enforce practically the
same laws. The divisions will be upon the basis of places
inspected instead of laws enforced, and every inspector will
be authorized to enforce any law which is applicable to the
establishment which he is visiting. Moreover, entire au-
thority to enforce the laws must be centralized in the Labor
Department and all reference to local authorities must be
287] THE ADMINISTRATIVE SYSTEM I4I
discontinued; the Labor Department must be made self-
sufficient. Thus practically all overlapping will be elimi-
nated.
Of sufficient importance to be entitled to special mention
is the division of industrial hygiene, copied from the New
York division of the same name.^* It is what is popularly
known as a bureau of "theorists," a bureau of technical
experts, being composed in New York of a physician, a
chemical engineer, a mechanical engineer who is an expert
in ventilation and accident prevention, and a civil engineer
who is an expert in fire prevention and building construc-
tion. The duty of this division is to make inspections of a
highly technical nature, to make independent investigations
upon which laws and orders may be issued, and to serve as
general technical advisors to the department. This is an
expensive division, but it is a most valuable one. It would
be well if Maryland could copy the New York plan in its
entirety, but that is not a necessity. To begin with, Mary-
land would need at least one physician to supervise the issu-
ing of child-labor permits and the inspection of food-
producing establishments. The mechanical engineer would
be a valuable adjunct to the Industrial Accident Commis-
sion and the State Insurance Fund.
The other bureaus are less important. The bureau of
statistics and information should have the same functions
that that bureau originally exercised ; it should be the pub-
licity bureau of the department. The bureau of arbitration
and mediation should have the enforcement of the law
which is now entrusted to the State Board of Labor, to-
gether with the enforcement of any more efficient law
which might be enacted. The bureau of mines should be
charged with the enforcement of the mining law in the
western counties. The bureau of employment should be
charged with the establishment of free employment offices
and the licensing of private employment offices. The In-
24 New York Consolidated Laws, Ch. 31, Art. 4, Sec. 60, as amended
in 1913. Laws 1913, Ch. 145.
142 THE LABOR LAW OF MARYLAND [288
dustrial Accident Commission, which has been placed as
the sixth bureau in the Labor Department, should hold a
relation to the department entirely different from the other
bureaus. For a number of reasons it is advisable that there
be some connection between this commission and the rest
of the department; but, owing- to the importance of the
commission and the class of men who are necessary for the
adequate administration of the compensation law, it is
doubtful if the commissioners should be made more than
nominally subordinate to the head of the department or if
they should be chosen in the same manner as are the chiefs
of the other bureaus. This is a practical question calling
for fuller discussion than can be given it here.
The question whether the administrative head of the
Department of Labor should be an individual or a commis-
sion has been complicated in most States where reorganiza-
tion has taken place by questions of legislative policy. Most
of these States have enacted general laws, with delegated
authority to issue specific orders, to take the place of the
detailed and intricate laws on their statute books. Enough
has already been said of the advantages of this mode of leg-
islation both from the substantive and the administrative
standpoint. From the point of view of administration, the
elimination of all discretion in the individual inspector and
the substitution of the educational, helpful attitude for the
antagonistic, prosecuting frame of mind are advantages so
manifest as to be undeniable.
For purely executive work, a one-man head is most de-
sirable, but if the head of the department has ordinance
powers some sort of commission is a logical necessity. Up
to the present time there have been devised four forms
which this commission might take. In the first place, the
Wisconsin plan places all the power, executive as well as
administrative, in the hands of a commission of three, an
excellent plan in most respects, but it has not been followed
and has been much criticised because of the weakness in-
herent in the division of executive authority. The second
289] THE ADMINISTRATIVE SYSTEM I43
plan is the New York scheme adopted in 1913 under which
there is a single executive head, the commissioner, and an
advisory board of representative men and women not subor-
dinate to, but presided over by, the commissioner, which is
empowered to draft orders. The objection urged against
this plan is that which is urged against all part-time boards,
the objection of inefficiency. In the third place, a slight
variation of the New York plan is advocated, the single
executive head as before, but a commission composed of the
chiefs of bureaus. This is open to the serious objection that
it confers independent advisory and discretionary functions
upon officers who are administratively subordinate to the
head of the department and who are, moreover, civil ser-
vice appointees with technical proficiency, but hardly legis-
latively representative. The final plan is that advocated
by the Illinois Efficiency Commission of 1914. This retains
the single commissioner and associates with him two depu-
ties, free from executive duties and of equal rank with the
commissioner so far as ordinance power is concerned.
Aside from the possibility of friction, the overwhelming
objection to this scheme is the useless multiplication of
officers for an administration the size of Maryland's.
On the whole it would seem that the New York plan,
which has been adopted in a modified form by the 1916
amendment, is best adapted to the needs of Maryland. Be-
sides the commissioner, the board is composed of four mem-
bers, of whom it is advisable that one should be an em-
ployer of labor, one a wage-earner, one a physician or sani-
tary engineer, and one a woman. All of these offices should
be filled by appointment by the governor and the salaries
should be large enough to be attractive to the worthy and
the influential. For the conduct of its business the board
should meet once or twice a month at the call of the com-
missioner. Besides the work of formulating administrative
ordinances, the commissioner should lay before the board
all matters in which any policy or discretion is involved,
except as the exigencies of a particular case may call for
1^4 THE LABOR LAW OF MARYLAND [29O
immediate action. The board should also have some ad-
visory power in the choice of subordinates, if these are
selected from a qualifying and not from a competitive ex-
amination. In general, however, except in the matter of
formulating ordinances, the board should be merely advis-
ory to the commissioner, for administrative responsibility
must be centered in one man and, in the last resort, the
commissioner himself must be directly responsible to the
governor. Centralization and discretionary power must
always be balanced by responsibility.
This brief outline I have built up almost entirely inde-
pendently of the 1916 reorganization of the Maryland labor
administration, the form of the head of the department and
the centralizing idea being the only similarities. I have been
forced to do this for the reason that the 1916 amendment,
although a good beginning, failed, like all pervious legisla-
tion, to take a large and comprehensive view of the situa-
tion. As has been said, by failing to go all the way it failed
to realize many of its possibilities. Instead of looking to
the future, the legislature only strove to correct some of
the defects of the past, and accordingly future legislatures
will have almost as much difficulty in attaching new duties
to the state board as it did to the old bureau. The plan
presented in this chapter is based upon scientific investiga-
tions conducted in the most advanced States ; and while no
scheme can be unalterable, this one has been elaborated
with as much prevision as mankind is capable of.
CHAPTER VIII
The State in Relation to Labor
It seems rather preposterous after the description of the
administration of the Maryland labor law given in the last
chapter to repeat what was said in the first chapter, that
Maryland is an average American State so far as its labor
law is concerned. Yet calmer consideration will justify this
statement. The administration, it must be admitted, is in-
ferior, though the system of administration which is provided
by statute might be made comparatively efficient. Equally
poor are the safety and sanitary inspection laws with the
exception of the recent sanitary provisions for food manu-
facturing establishments. Slightly better are the laws regu-
lating the terms of employment of adult men, though, it
must be remembered, these laws have far from justified
their enactment. The other provisions of the labor law are
above the average. The child labor law and the workmen's
compensation law, though perhaps capable of improvement,
are really exemplary pieces of legislation. The industrial
disputes act and the other laws relating to the labor union
are almost as good as could be hoped for. The women's
ten-hour law ranks lower than similar laws in many States,
but nevertheless Maryland is above the average. The non-
statutory law of the labor union, while not ideal and not
even satisfactory under present conditions, is in absolute
accord with the best legal thought.
In spite of the fact that Maryland deserves such a rank,
a general survey of the labor law is likely to be most dis-
appointing. The labor law considered as a whole displays
the same lack of system that was evident in the administra-
tion of that law. The legislature churns out haphazardly
all kinds of labor law and when the student tries to unearth
lo 145
146 THE LABOR LAW OF MARYLAND [292
some maxims or some philosophy upon which the legisla-
tion is based, he is met with absolute chaos. Not only is
this chaos present in the legislative enactments, it is also
only too evident in judicial decisions. Now, we could
perhaps excuse the legislatures for this deficiency, for as
our state legislatures are now composed, it is hardly to be
expected that they will have any continuous policy of legis-
lation in any branch of state activity ; and, in respect to the
labor law, they respond to the demands of their constitu-
ents just in proportion as the proposed measure seems a
good vote-getting device. But the courts which exercise
a great influence upon all social legislation through their
power to declare laws unconstitutional have no such excuse.
They have endeavored in some cases to throw the blame
for reactionary decisions upon the counsel who argued be-
fore them,^ but this excuse — to use their own language —
though perhaps evidence of extenuating circumstances does
not detract from the weight of the ofifense.
When I say that neither the courts nor the legislature act
upon any consistent philosophy of labor legislation, I am, in
one sense, not speaking with strict accuracy. The legislatures
do still act as they always have acted upon the theory that
laws which are strenuously demanded by a great number
are desirable, and the courts have formulated a maxim that
legislation must be for the welfare of the general public and
not of a particular class. Neither of these principles, how-
ever, is specific enough as a basis for legislation. More
concretely the courts from time to time have acted upon the
principle that those labor laws are proper which tend to
equalize the bargaining powers of labor and capital or upon
the principle that the legislature should only enact laws safe-
guarding the public health, morals or safety ; but neither of
these principles has been iterated consistently enough to be
called a philosophy of the courts. There is, then, in labor
legislation only the philosophic principle of individuahsm
N^Y^L^T*^^?^^ ^' ^^^™^"' ^44 111. 509; People v. Schweinler, S3
293] THE STATE IN RELATION TO LABOR I47
dating back to Jeremy Bentham as modified by present con-
ditions in the direction of state intervention. But when it
is remembered that the exceptions to the individualistic
principles are more numerous than the rule, that the tend-
ency is towards state intervention and away from laissez-
faire, it will be obvious that some limitation upon state
action is necessary unless individualism is gradually to
change to socialism. There has as yet been formulated by
legislature or court no such limiting principle and the result
is a confused and chaotic mass of labor laws obeying no
definite rule of the relation of the state to labor.
In attempting to outline any system of philosophy of labor
legislation, we must, to conserve energy, use as many prin-
ciples of existing theories or systems as is possible. Not
only does such a plan conserve energy, but it also commends
itself in lending greater plausibility to the new scheme.
Before outlining our scheme, therefore, it will be necessary
to extract the best points from the two prevalent philoso-
phies of state activity, laissez-faire and socialism.
Laissez-faire, as has been said, is the philosophy of com-
plete inactivity on the part of the state. Realizing the value
of individual initiative, the believers in laissez-faire advo-
cated the absolutely unrestricted development of this vir-
tue. So sure were they of the efficacy of this quality that
they were content to conceive the welfare of the state as
merely the sum total of the welfare of the individuals
composing it. Now the philosophy of individualism is
sound in so far as it accentuates the necessity of individual
initiative and this is the element which we must try to
preserve; but experience soon proved that its corollary of
laissez-faire was an impossible solution of the relation of
the state to labor. Laissez-faire exalted competition with a
hope of weeding out the unfit, but the result was a compe-
tition between classes which must function together if they
are to attain the greatest common good. Instead of com-
petition weeding out the unfit and raising the standards of
social and industrial life, unregulated competition lowered
148 THE LABOR LAW OF MARYLAND [294
the standards to the basis of those of the lowest competitor.
Not only did the individual suffer, but the community and
the state were also hurt by this rampant selfishness. And
the state suffers both from the individual suffering of its
citizens and from the torpidity v^hich this philosophy forces
upon it. Individual initiative should be fostered, but selfish-
ness must be carefully repressed.
As a reaction against this theory of the relation of the
state to its citizen, there came into being the political phi-
losophy of socialism. This philosophy, as I view it — and
there are almost as many views of socialism as there are
socialists — is the result of the theory that thinking men
"no longer hope for salvation through 'the free play of
individual interests,' and * freedom of contract ' . . . they
are apt to identify the cause of liberty with a policy of
social injustice. . , . The real test of liberty is to be found
less in the form of government or in the number of laws
that control the action of the citizen than in the extent to
which the citizen is assured the means of self-realization."'
So far again we may accept the tenets of this theory, but
the complete socialistic program of state activity goes on
to advocate at the least the socializatfon of all the means of
production. That is, socialism in opposition to laissez-faire
believes in the most intimate intervention of the state in the
life of its citizens, intervention extending as far as state
control, if not ownership, of all the factories, land, trans-
portation, and other productive agencies. Socialism by the
logical development of its fundamental tenet departs quite
as completely as does individualism from its original con-
cept. Socialism in endeavoring to assure to the citizen the
means of self-realization by a complete system of liberty-
making restrictions ends by completely stifling individual
initiative. This in the last analysis is the real argument
against socialism; it involves the rule of a bureaucracy in
political and industrial affairs, a superabundance of laws
which inevitably tend to deteriorate in quality as they in-
2 W. Jethro Brown, Underlying Principles of Legislation, p. 57 ff.
295] THE STATE IN RELATION TO LABOR I49
crease in quantity, and a too frequent interference of the
administrative powers of the state in the life of the citizen
— all this at the expense of a proper encouragement of the
vitally necessary individual initiative. If a socialism could
be conceived which would preserve this one quality, it would
be desirable in spite of its other faults ; but so far no such
conception has been formulated.
We can then begin our constructive philosophy upon
these two fundamental ideas which have now received
rather general acceptance, the ideas that individual initia-
tive and self-realization must be stimulated and that a
proper use of legislation can be made to contribute to this
end. Individual initiative is essential to progress, but in-
dividualism untempered by state interference is an im-
possible principle. The state must interfere when individ-
ualism fails to achieve the greatest common good ; but the
state should interfere as rarely as possible, state interven-
tion should be always the secondary consideration. As
Schaffle says of the need of state intervention in the protec-
tion of labor: "It [the state] only steps in when self-help
and mutual help, supplemented by ordinary state protec-
tion, fail to meet the exigencies of the situation, whether
momentarily and on account of special circumstances, or by
the necessities of the case."^ The state's policy of inter-
vention should be not only temperate, but as far as pos-
sible uniform. That is, the state should not manifest itself
too variously in dififerentiated classes of laws, but should
strive to specialize its activity. One of the causes of the
failure of socialism is that the state is called upon to at-
tempt duties too diversified. The state promotes individual
initiative most effectively by confining itself as nearly as
possible to its prime duty of policing, and all its activity
should be closely related to this fundamental activity. Its
legislation to make real the theoretical liberty which the
laissez-faire philosophers believed in should be legislation
which really makes the individual capable of caring for him-
3 Schaffle, Labor Protection, p. 11.
I 50 THE LABOR LAW OF MARYLAND [296
self, not legislation which attempts to take care of the
individual.
With these fundamental principles in mind, let us con-
sider the existing labor conditions. We have traced in the
first chapter the varying development of the theories of
labor l^w and it was pointed out that not until the last
period of this development, the period of laissez-faire miti-
gated by legislation in favor of the laborer, was the labor
problem serious enough to merit activity upon the part of
the state purely in solution of this problem. Moreover, it
was there also shown that this last period dated from soon
after the Industrial Revolution. These two facts are not
chance concomitants ; they have a real relation to the prob-
lem. Prior to the Industrial Revolution, the employer and
employee were in intimate personal relation to each other.
The employer employed few men and usually did part of
the manual labor himself. He usually knew the conditions
of these men and took an interest in their welfare. More-
over, the men were able to bargain successfully for their
own welfare, for the employee had almost as many shops
in which to seek employment as the employers had occa-
sions to employ workmen. In other words, the business
unit was so small that the individual employer had no
greater monopoly of jobs than the employee had of work-
ing ability. After the Industrial Revolution, however, one
employer employed hundreds and thousands of workmen.
Not only did he have greater experience in hiring labor
than the employee had in seeking work, but because of the
magnitude of his business he had more of a monopoly of
the jobs obtainable. Briefly, the employer had what the
employee wanted most of all — work; he usually was not
hard put to it to get what the employee had — labor ; he was
in a superior economic position and had more experience in
making the contract of employment. The individual em-
ployee was practically at the mercy of the employer; the
employer set the conditions of employment and the em-
ployee was compelled to acquiesce in them.
297] THE STATE IN RELATION TO LABOR I5I
As an offset to this inequality of bargaining power, the
workman evolved the old craft gild into the labor union.
By thus combining the individuals in a particular craft into
an organized whole and developing one of the members into
a trained bargainer, the employees were able to balance the
monopoly and the experience of the employer. Collective
bargaining for the whole union was substituted for the in-
dividual bargaining of the single employee. But this solu-
tion has not been adequate. It was because unionism was
incomplete, however, not because it was ineffective, that
the state was compelled to legislate. The state soon discov-
ered that it had to interfere in the labor contract ; absolute
laissez-faire was not feasible under a factory system of in-
dustry and an unorganized community of laborers. The
more powerful employer, it was found, used his power
selfishly to the detriment of the state. The state recognized
the inequality of the bargaining power of the two parties
to the contract and stepped in to remedy the effects of this
inequality. Would it not have been better to have reme-
died the inequality? If the state, instead of establishing
certain of the terms of the labor contract, had made the
employee capable of establishing these terms for himself,
its task would have been much simplified. If the state had
legislated to make equal the bargaining power of the two
parties, if the state had legislated to encourage the devel-
opment of collective bargaining, it would have effected per-
haps, not a panacea, but a much greater reform than any
law so far has effected. A really strong labor imion as a
means of collective bargaining would render unnecessary
much of the ever-increasing bulk of social legislation. To
achieve unionism should be the first aim of state activity.
Experience sustains this conclusion. The well-organized
— I might even say the organized — labor union asks little
of the state except legal recognition and the absence of
legal persecution. It is perfectly reliant upon its own pow-
ers. Through its control of labor and its own resources, it
is enabled to withstand the natural ascendancy of the em-
1^2 THE LABOR LAW OF MARYLAND [298
ployer and bargain through its trained agents for its fair
share of the product. It is within the scope of the union's
power to bargain as to hours of labor, wages, days of rest,
conditions of apprenticeship, etc. The trade union as a
fraternal organization can provide for out-of-work bene-
fits, sickness insurance, old-age pensions, and the like.
What is more important, the labor union can better care
for the terms of the employment of its members through
its bargaining with the employer than the state could
through legislative enactment, for the labor union can bet-
ter recognize the local and incidental variations of each
trade and better provide for them in its terms than could
the state. Thus the English textile workers in conjunction
with the employers maintain expensive experts to arrange
sliding scales of wages and hours to conform to various
conditions and to fix new terms when new conditions ar-
rive.'* And, furthermore, with respect to the benefits, the
union is able to provide more efficient administration than
the state could because of its more intimate connection with
the recipients of the premiums. Together with the strength
and numbers of the central and federal unions, these or-
ganizations provide a much subdivided and minutely classi-
fied administrative device for the amelioration of labor
conditions. This must be considered an additional argu-
ment for the policy of noninterference, which indeed
weighs very heavily in conjunction with individualistic
reasoning. In these fields which have just been discussed
the labor union can be perfectly efficient, but in order to
be efficient, it must contain practically every worker in its
trade, perhaps an entirely impracticable condition.
The labor union, however, even in its strongest condition
is not able entirely to replace the state in looking after the
welfare of the laborer. Certain laws must still be enacted.
The state must, of course, legislate with reference to the
labor union itself. The union naturally must be legalized
4 See Webb, Industrial Democracy, for a description of this
scneme and for an appreciation of its workings toward amicable
relations between labor and capital.
299] THE STATE IN RELATION TO LABOR 153
and, as will be seen, aided in some manner before it can
begin its function as efficient competitive bargainer, for the
common law, especially as affected by early English labor
legislation, is not friendly to labor unions. In other re-
spects, also, amendment of the common law will be neces-
sary to conform this inelastic system to changing industrial
conditions. The workmen's compensation movement is a
present instance of this branch of state activity. The labor
imion could inaugurate schemes of accident insurance and
some unions have done so; but under the common law of
master and servant a scheme of accident insurance would,
in a great majority of industries, become most expensive.
The state alone can abrogate the doctrine of assumption of
risk and fellow-servant negligence and ameliorate or abro-
gate the theory of contributory negligence. Most impor-
tant is it that the labor union should bargain for and help to
regulate the conditions and environment of employment.
Certain minor provisions, of course, the unions will always
stipulate for, but conditions of sanitation, fire-prevention,
and safety appliances are beyond the scope of their powers.
In the framing and enforcement of such provisions expert
knowledge beyond the reach of unions is necessary; and,
moreover, in the fundamentals, a uniformity must exist
which higgling and bargaining from their nature never
can procure. Within these three rubrics, then, the legali-
zation of the union, the correction of the common law,
and the regulation of the conditions of labor, the activity
of the state should b6 contained ; beyond them is the sphere
in which the state should act only in aid of the union and
in furtherance of its schemes. In this way, as I see it,
could individual initiative be encouraged and the state care
best for the general welfare. This, in other words, is an
ideal system of state activity.
Accepting provisionally this assumption, the possibility
of which will be later demonstrated, that labor is fully
organized, that indeed each union has a practical monopoly
of the workmen in its trade, the question presents itself :
154 THE LABOR LAW OF MARYLAND [3OO
Will the unions become so strong when they have once
been brought into power that they will not only control the
capitalists and become the first claimants in distribution,
but that they will set up a kind of inverted autocracy in
which the union leaders represent their class to the entire
emancipation of the capitalists ? Such a result seems some-
what fantastic, but the recognition of its probability leads
to profitable speculation.
In the first place, even assuming that the great propor-
tion of laborers are unionists, the place of capital in the
economic and social system would still be an important
one; and, unless communism followed unionism — and this
does not seem probable or even logical — the class of capi-
talists would be separate from and necessary to the work-
ingmen. Moreover, when unionism is at its highest point,
from one-third to one-half of the working population, farm
laborers, professional men, and the like, are engaged in
pursuits in which unionization is impossible or tmnecessary.
And it must be remembered that the unorganized portion
of the population will still include the professions, the
brains of the country. But, in all this discussion, that
which must struggle for completion is recognized as in full
bloom before any resistance or restriction is organized. Of
course, this is inconceivable. With the advent of fully
organized labor, there will develop organizations of em-
ployers after the nature of the present employers' associa-
tions to combat the rising menace to their profits. No gov-
ernment aid will be needed to help them into existence and
the law will hardly antagonize them as imion combatants
so long as they restrict themselves to agreements concern-
ing labor. These employers' associations will also approach
to a monopoly, a monopoly of jobs, and there will be then
on opposite sides two aggressive organizations, each seek-
ing for its members the larger share in distribution. A
battle under those circumstances is inconceivable. On be-
half of the consuming public, the state would step in to
effect control over those large labor questions whose inci-
30l] THE STATE IN RELATION TO LABOR I 5$
dental variations it had left to the labor union. In other
words, some form of mediation, arbitration or conciliation
is necessary.
It is out of place here to enter into any detailed discus-
sion of the modes of amicable settlement of labor disputes.
The plan called for here is some kind of a government
commission with the powers of one of the present minimum
wage commissions to settle all questions of terms of em-
ployment which the agents of the labor union and employ-
ers' association cannot agree upon. The necessity of ap-
pealing to this commission and accepting its awards may,
if necessary, be made compulsory and binding upon the
acceptance of government aid by the unions. Constitu-
tional objections will be raised, but we must sometimes
remember that the constitutions are not the last word in
social legislation and social readjustment.
There are, however, certain practical questions which
have been slurred over in the previous discussion, but which
must now be considered in all their glaring baldness. It is,
indeed, one of the drawbacks of philosophizing and theoriz-
ing that practicalities always constrain one to justify his
theories. Perhaps that is why there is such a paucity of
theories in the world and so many "practical men."
In the first place, then, it has been assumed that, in order
to guarantee to the state its proper place in the amelioration
of social conditions, labor has become completely organized.
" The success of a union in enforcing its demands depends
upon the extent to which it has control over the labor sup-
ply in its particular occupation, since, if an employer is
easily able to fill the places of those on strike, it is evident
that the whole movement fails in its purpose."^ It has
been calculated, however, that only between five and six
per cent of the workers of the country are organized, and
that few unions control half the laborers in their crafts."
5 Weyf orth, " Organizability of Labor," in Johns Hopkins Uni-
versity Studies, ser. xxxv, no. 2, p. 146. Much of the following has
been suggested by this monograph.
^ Wolman, Extent of Organization in the United States, MS.
1^6 THE LABOR LAW OF MARYLAND [302
These figures, however, exaggerate the problem confront-
ing us, though they do suggest its magnitude and, perhaps,
the fancifulness of the project. One of the greatest diffi-
culties in the way of organizing laborers is the opposition
of the employers to unionization. This is a natural phe-
nomenon of competition, but it seems a passing one. Its
most destructive opponents are public opinion and the
growing consciousness among employers that it is to the
benefit of each employer to have all the workers in his
trade organized. For only then is the employer sure that
his competitor is not undercutting with cheap labor, and
his care is to obtain relative, not absolute, cheapness in the
elements of his product. This problem, however, will find
its own cure; legislation in its nature follows as well as
develops public opinion. The country when willing to ac-
cept the scheme of legislation here set forth will present a
concerted opinion strong enough to offset the opposition of
the employers to unionization.
A more serious problem confronting the organizer of
labor, from the point of view of this study, is the apathy
of the laborers. This manifests itself in two forms, in the
apathy of the individual worker in an organized trade and
in the apathy of a whole trade resulting from the nature
of the trade. The indifferent worker is a problem for
modern unionism which the unions of today are fast learn-
ing to handle successfully; but, in the eyes of a scheme
which would only succeed through a general appreciation
of the union as the natural, fixed economic phenomenon
which it seems to be, this problem sinks into insignificance.
The really serious difficulty is the apathetic trade, the trade
which seems impervious to organization. The unskilled,
floating workers because of their great number and the
aimlessness of their interest, the women in employment
because of the transitoriness of their employment and be-
cause they look to marriage rather than wages as a means
of livelihood, and the home-workers because the scattered
condition of the employment makes enforcement of union
303] THE STATE IN RELATION TO LABOR 1 57
regulations well-nigh impossible are the black sheep of labor
unionism. That a stimulating impulse is the necessity in
the case of the unskilled and the women, that these classes
are not impossible, but merely difficult to organize, is dem-
onstrated by the success of such unions as the stevedores
and hodcarriers and of the New York garment workers'
protocol. The home-workers, if the law is content that
there be home-workers, seem conclusively without the field
of unionism. The isolated conditions of employment, the
private nature of their occupation, make impossible such
union regulations as an eight hour day, standard wages or
a closed shop. But this is not fatal to the argument that
the unions should regulate the terms of employment, for
the same conditions would make equally impossible an effi-
cient state regulation of these terms. Except as to the
conditions of the environment of employment, which under
any scheme of social legislation must come under state con-
trol, the home-workers are incapable of outside regulation.
Another class of workers who are not well organized are
those who labor in small one-man industries. These in-
clude farm laborers, domestic servants, workmen in small
country shops, and the workers in the so-called one-man
shop. The organizing condition of these employments is
analagous to that of the home-workers, but it is not abso-
lutely incompatible with organization, as is evidenced by
unions of barbers and the like. The labor problem, how-
ever, in these industries is not so acute as in the larger
centralized employments, for the laborer is in intimate rela-
tion with his employer. In fact, these occupations are quite
of the nature of the early forms of industry when no labor
legislation was enacted, and even today these occupations
are often omitted from labor legislation. Instead of en-
hancing, these workers may be said to mitigate our problem.
The problem then is, if it is desirable to make the great-
est possible use of labor unions in the amelioration of labor
conditions and if it is desirable to establish a limit to state
intervention where the concerted action of the workingmen
158 THE LABOR LAW OF MARYLAND [3O4
shall work out their own salvation, — the problem then is to
secure almost complete organization among laborers. Be-
cause of the antipathy of the employers and the apathy of
some laborers, as explained, the organizability of labor
seems to stand at a rather low level. Public opinion, it is
true, plays a large part in determining the level at which
the labor barometer stands, but public opinion cannot over-
come all the obstacles in the way of labor organization.
Active help must be furnished from the outside. It is here
that the state may bargain for the controlling interest in the
manipulation of trade union affairs which is necessary to
amicable settlement of industrial disputes. Two modes of
state aid will illustrate the kind of help necessary and the
problems involved, but the exposition of these two schemes
must not be accepted as exhaustive of the methods of state
aid.
The first plan for state aid is in the nature of financial
encouragement. One of the main weapons of organization
is the beneficial system of trade union insurance. Not only
is this an effective lure to the conservative workman, but it
is one of the chief inducements to permanent organization
when the initial stimulus of a successful strike or boycott
has spent its constructive force. Two of the most impor-
tant of these benefits are out-of-work and sickness benefits.
The state could contribute to one of these and make the
union so much more eiTective by its aid.'' As a condition
of this contribution, the state could stipulate that through
^The expense of this scheme would not be great. Taking as a
typical example of the source of state aid, the State of Maryland, a
fair estimate would be the addition of three and one-fifth cents to
the tax rate. This estimate is arrived at in the following manner:
The working population of Maryland is 541,164 (Census of 1910,
Vol. V, p. III). Deducting 222,247, the number of farm-hands, pro-
prietors and professional men, etc., the total number of organizable
workers at a generous estimate is 318,917. The average per capita
cost of out-of-work benefits in two unions, the Cigar Maker and
Typographic, from 1900 to 1905 was $3.55 (from tables in Kennedy,
Beneficiary Features of Trade Unions, p. 91). If the State should
contribute 30 per cent of this amount, again a most liberal estimate,
the total cost for Maryland would be $329,647 or 3.2 cents on the tax
assessment basis of 1914.
305] THE STATE IN RELATION TO LABOR I §9
its commission or board of arbitration or some similar
board, it should have intimate control over the affairs of
the union. This scheme would have to meet the objections
against all state insurance schemes ; and it could meet them
rather effectively ; but none of these, because of the nature
of this discussion, is important to dwell upon except the
question of constitutionality, that bugaboo of all social
legislation.
Under existing state constitutions,® this method of state
aid would be illegal ; but most state constitutions are easily
and often amended so that the real difficulty lies in the
relatively staid Federal Constitution. The " due process of
law " clause interpreted as forbidding state taxation for
private purposes and the " equal protection of the law "
clause of the Fourteenth Amendment as usual raise their
threatening forms in the path of this legislation. In the
first place, would such a system of state contribution to
union benefits involve taxation for a private purpose?
The first ground upon which this legislation would be
sought to be upheld would naturally be as an extension of
the proper state function of poor relief, for, in taxation
cases, the courts lend most weight to the historical argu-
ment. It might be argued that, inasmuch as the State may
relieve its poverty-stricken citizens, it should be enabled
to grant aid as a preventative of those conditions. Now
the two kinds of contributions, of which one is advocated,
are both directed against prime causes of poverty, the sick-
ness or unemployment of the wage-earner of the family.
The argument is perfectly sound that an ounce of preven-
tion is worth a pound of cure, but the majority of the
courts of the country have refused to be guided by this
proverb.® State relief, it has been generally held, can only
be granted to those absolutely indigent. At least one court,
^See, e. g., the Maryland Constitution, Art. Ill, Sec. 34: "The
credit of the State shall not in any manner be given ... in aid of
any individual association or corporation."
^ See Goodnow, Social Reform and the Constitution, chap. 7, and
cases there cited.
l60 THE LABOR LAW OF MARYLAND [306
however, has taken the logical, if not the historical and
legal, position just set forth and has upheld a preventative
measure;^" but, except as an entering wedge, this opinion
lends little encouragement because of its uniqueness.
Driven from this ground by the conservatism of the
courts, it is more profitable to consider whether the State
is not obtaining for itself by indirect means a perfectly valid
advantage. " It is obvious that what is a public use fre-
quently and largely depends upon the facts and circum-
stances surrounding the particular subject matter in regard
to which the character of the use is questioned."^^ It is
useless to quote cases. The irreconcilable differences of
the opinions makes it possible to quote in favor of either
position. Let us then appeal to reason. By making the
nominal expenditure for beneficiary payments, the State
saves itself the cost of expensive commissions and experts
necessary for the efficient administration of this part of
the labor law, saves its legislators endless trouble by ren-
dering unnecessary a great multitude of enactments, and
exercises an interest of utmost impwDrtance in maintaining
amicable relations between employers and employees, in
preventing labor wars. The state takes this means of legis-
lating with respect to the fundamentals of the labor ques-
tion instead of striving to correct the deformity of modern
industrial life by attacking merely the symptoms and out-
growths of the inequalities now existing between labor and
capital. The State, it would seem, has a right to legislate
in this manner and "it is established by a series of cases
that an ulterior public advantage may justify a compara-
tively insignificant taking of private property for what, in
its immediate purpose, is a private use."^^
This line of reasoning also makes unnecessary any ex-
tended reference to the "equal protection of the law"
clause. All unions and unionists will receive similar aid
10 North Dakota v. Nelson Co., i N. D. 88.
^1 Fallbrook Irrigation District v. Bradley, 164 U. S. 112.
^2 Noble State Bank v. Haskell, 219 U. S. 104, and cases cited.
307] THE STATE IN RELATION TO LABOR I6I
from the government, and everybody will be able to secure
this aid by entering a union, for, in fact, to secure complete
organizations is the prime motive of the aid. The unions,
through governmental insistence, must hold themselves open
to receive any worker having the qualifications of the trade ;
and the State must stand ready to extend its aid to all
unions coming into existence. All who unionize receive
government assistance and those who refuse to organize
have themselves to blame. The discrimination between
unionists and non-unionists, in reality, amounts to very little,
and this discrimination is justified by the end to be attained.
As a second mode of state encouragement to organiza-
tion, a scheme lending actual assistance to the establish-
ment of a preferential union shop in the several industries
is suggested. Little argument is necessary to prove that
if actual preference is given to the man bearing union cre-
dentials in obtaining the open job, great advantage is given
to the union. It would, perhaps, be too difficult to attempt
to absolutely enforce a closed shop or even a preferential
shop by legal enactment, but any aid in this direction would
be beneficial, and perhaps sufficiently beneficial to stimulate
organization among the apathetic workers, certainly bene-
ficial as a weapon against the antipathetic employers. It is
not necessary to suggest a typical law, but it would be in-
teresting to consider the constitutionality of a law similar
to that which has been passed in several States penalizing
the discharge of a workingman because of his membership
in a union or penalizing an employer for insisting upon an
agreement from the worker not to join a union during his
employment, either of which would be enforced only as to
unions submitting to government intervention in their deal-
ings with the employers.
At first glance, either of these laws would seem clearly
unconstitutional under decisions of the Supreme Court in
the Adair^' and Coppage cases ;^* but there is one new
"Adair v. United States, 208 U. S. 161.
1* Coppage V. Kansas, 236 U. S. i.
1 62 THE LABOR LAW OF MARYLAND [308
feature, government control, introduced which will at least
weigh in the direction of constitutionality, and, moreover,
it is most deferentially submitted, the decisions in these two
cases are open to criticism. Both of the majority opinions
in these cases were written by the conservative, if not the
reactionary, justice of the bench and both of them are rea-
soned out upon eighteenth century notions of the inviola-
bility of natural rights. The Court does not take judicial
cognizance of twentieth century conditions as affecting
these eighteenth century rights. It lays aside as immaterial
the practical inequality of the employer and the unorgan-
ized worker and sees no possibility of coercion in the mu-
tual employment agreements. " But in view of the relative
positions of employer and employed," asks Justice Day in
his dissenting opinion in the later case, " who is to deny
that the stipulation [not to enter a union during employ-
mient] here insisted upon and forbidden by law is essentially
coercive?" It is useless to attack at any greater length
these decisions ; the dissenting opinions are stronger than
anything else which could be written. The proposed laws,
however, can be held constitutional in spite of these two
cases. Not only would the State be attempting to aid the
unions by the&e laws, it wotdd be fulfilling a purpose of its
own in the amelioration of inequitable labor conditions and
in the amicable adjustment of labor disputes. The unions
would take on the nature of public institutions; and, as
the Court says in the Coppage case, "if they were, a differ-
ent question would be presented " than the one there con-
sidered.
These two methods of state aid are, then, illustrative of
the kind of legislation needed to consummate the idealized
condition of affairs herein assumed. To encourage indi-
vidual initiative and to repress selfishness in a proper pro-
portion, so that both the individual and the community
may prosper, the State's first duty in labor legislation is to
stimulate unionization. Until complete unionization is at-
tained, the State may hav€ to legislate in fields beyond
309] THE STATE IN RELATION TO LABOR 1 63
those to which this system would limit it; and in those
fields the previous chapters of this study have sought to
lay down sound standards of legislation. When, however,
unionization is once complete and with it have come into
existence the employers' associations, the State will be able
to leave most of the terms of the labor contract to the two
parties, itself intervening through the agency of the gov-
ernmental commission only on the rare occasions when the
public welfare seems at stake. The only other care of the
State will be to keep the unwritten law up to date and to
legislate concerning safety and sanitary conditions. Per-
haps this outline seems too ideal, but in that it is like all
logical philosophies — when they become constructive they
necessarily go to extremes and extremes are not reason-
able ; only the mean is reasonable and that is not logical.
INDEX
Accident. See Workmen's Com-
pensation Law.
Accident Fund, 65-66.
Administration of labor law,
122 fi.
Apprentices, statute of, 11.
Arbitration, compulsory and vol-
untary, 41 flf. ; publicity method
of, 42.
Assumption of risk, 53, 71
Attachments and liens, 116 ff.
Barnett, G. E., 47 (note).
Bentham, Jeremy, 147.
Black-list, uses of, 33-35, 108,
114.
Board for Mothers' Relief for
Baltimore City, 119.
Boycott, 22, 25 ; secondary, 24,
25, . 29-30 ; primary, 29-30 ;
distinction between primary
and secondary, 30-32.
Brandeis, L. D., loi (note).
Brown, W. Jethro, 148 (note).
Bryan, J. W., 20 (note).
Bureau of Industrial Statistics
and Inspection, 87, 98
Bureau of Statistics and Infor-
mation, 43-44, 123, 136.
Canneries, 102.
Child Labor Law, 99, loi, 126,
130-131.
Child welfare, 117, 119, 132.
Civil service reform, 136 ff.
Closed shop, 22, 25 ; methods of,
3<^38.
Colfhing Cutters' Assembly, 25.
Commission, proposed, 77 ff.
Common law, relation to labor
law, lo-ii; of contracts, 37;
in relation to compensation
law, 75.
Commons, J. R., 78 (note), 79.
Compensation. See Workmen's
Compensation Law.
Conciliation, 41-45.
Conspiracy, law of, 19, 20.
Constitutional provisions in
United States, relation of, to
labor law, 13-14.
Contract, freedom of, 22.
Contributory negligence, 53, 71,
153.
Cooperative Insurance Fund, 46-
48.
Course of employment, 63 ff.
Disability, compensation for,
S8ff.
Discharge of employees, 35.
"Due process of law" clause, 14,
153.
Employers' Associations, 154,
Employers' Liability Case, 71.
Employment, conditions of, 76
ff. ; terms of, 94 ff. ; prohibi-
tions of, 96 ff. See hours of
labor, sanitation, fire protec-
tion, etc.
Employment, in course of, 63 ff.
Employment agencies, 126.
Equal protection, 159, 160.
Factory inspection and indus-
trial registration law, 126 ff.
Fellow servant negligence, 53,
71, 153.
Fire protection and suggested
measures, 81-85.
Fourteenth Amendment, 14, 41 ;
" equal protection of the law "
clause of, 159, 160.
Freund, Ernst, 48 (note), 55
(note).
Goodnow, F. J., 129 (note).
Harlan, H. D., 74 (note).
Health, State Board of, 89-90,
123, 133-135-
Herkner, Anna, 83 (note).
Holmes, Justice, 14, 36, 71.
Home-work, 90-93.
164
3iO
INDEX
165
Hours of labor, for women and
children, 100-103, 126, 13a;
for men, 103-104.
Industrial Accident Commis-
sion, State, 65, 67-70, 85, 123,
135.
Injunctions, 30.
Insurance, 158-161. See Work-
men's Compensation Law.
Interlocking directorates, no.
Label, union, 39-41.
Labor, disputes, settlement of,
155.
Labor, State in relation to, 145 flf.
Labor and Statistics, State
Board of, 44, 87, 91-92, 123 ff.
Labor Day, 121.
Labor Department, need of
Maryland for, 139 ff .
Labor law, definition of, 9; dif-
ferentiation of, from common
law, 10 ; character of early, n-
12, 20.
Labor union, 19 flf.
Laborers, Statute of, il.
Laissez-faire, relation of doc-
trine to labor law, 11-12, ^^,
147.
Leiserson, W. M., 126 (note).
Liability, employers. See Work-
men's Compensation Law.
License laws, 113 flf., 115-116.
Liens, 116.
Living wage, 105.
Lucke V. Clothing Cutters' As-
sembly, 25.
Luman v. Kitchens, in.
Malice, 22.
Martin, W, A., 23 (note), 40
(note).
Maryland Court of Appeals, 14;
on criminal conspiracy, 20.
Maryland Labor law, compara-
tively considered, 16-17; his-
torically considered, 19-20 ; ad-
ministrative system of, 122
ff. ; suggestions for reforms
in, 136 ff.
Mechanics' liens, 116 flf.
Minimum wage law, 104-106.
Mothers' pensions, 118.
My Maryland Lodge v. Adt, 23-
24, 28, 30.
Negligence, contributory, 53, 71,
153-
Occupational diseases, 64.
Picketing, 25, 27-29.
Pickett v. Walsh, 26.
Police power, 72.
Public employment, terms of,
1 19-120.
Pure Food and Drugs Act, 134.
Relief fund, 49.
Restraint of trade, 37.
Risk, assumption of, 53, Ti.
Rubinow, J. M., 53 (note).
Safety and sanitary measures,
8sff.
Sanitary Inspection Law, 89-90,
133-135.
Sanitation, 86, 129. See Health,
State Board of.
Schaflfle, A., 149.
School attendance, 118.
Second Employers' Liability
Case, 71.
Shaffer v. Union Mining Com-
pany, no.
Socialism, 148-149, 150.
State Accident Fund, 65-66.
State aid to trade unions, in-
surance, 158-161 ; preferential
union shop, 161 ; constitution-
ality of, 161-162.
State Board of Health, 89-90,
123, 133-135- , ^
State Board of Labor and Sta-
tistics, 44, 87, 91-92; adminis-
tration and duties of, 123 ff.
State employment, 119 ff.
State Industrial Accident Com-
mission, 65, 67-70, 85, 123, 135.
State v. Potomac Coal Com-
pany, III.
Statute of Apprentices, Eliza-
bethan, II.
Statute of Laborers, 11.
Strike, object of, 22 ff., 38; sym-
pathetic, 24; when legal in-
strument, 24.
Sunday Rest Law, 121.
Supreme Court, on discharge of
union employees, 35.
Sympathetic strike, 24.
I 66 INDEX [312
Tenement law, 90-93. Wages of labor, 104 ff.
Tort, law of, 74- "Waiting period," 61.
Trade union, development of Webb, Sidney, 152 (note).
law of, in Maryland, 19-23; Weyforth, W. O., 155 (note).
statutes relating to, 39-41 ; Willner v. Silverman, 35.
aims of, 151-153; state aid to, Wolman, Leo, 155 (note).
158-161. Women's ten-hour law, 102, 126,
Truck system, 107 ff.; history 132.
of, in Maryland, 109 ff. Workmen's Compensation Law
Typographical Union, Interna- of Maryland, history of, 46 ff.;
tional, 41. compared with other similar
laws, 56 ff. ; constitutionality
Union label, 39-41. of, 70 ff.; effects on common
Union labor, 19 ff. law, 74, 125.
L'nion shop, 161.
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The West Florida Controversy
of 1798-1813
A Study in American Diplomacy
By ISAAC JOSLIN COX
Aatooiate Profeaser of HUtory. Unirarsity of Cincianati
710 Pages. 12mo. $3.00.
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and bitter controversy that was waged over West Florida.
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