1.5.1. New England (1900-1925): Reform and the Courts


Key laws enacted during the Progressive Era:


Good government laws

Tax reform laws

Railroad and utility regulatory laws

Workplace safety laws

Maine

 

 

1913 – Public utility commission

1915 – Workers compensation law

New Hampshire

1909 – Direct primary

 

1911 – Public utility commission

1911 – Workers compensation law

Vermont

1915 – Direct primary

 

1908 – Strengthened railroad commission

1908 – Public utility commission

1913 – Factory inspection law

1915 – Workers compensation law

Massachusetts

 

1916 – Individual income tax

1920 – Corporate income tax

1887 – Public utility commission

1866 – Factory inspection law

1911 – Workers compensation law

Rhode Island

 

 

1910s(?) – Public utility commission

1912 – Workers compensation law

Connecticut

1911 – Corrupt practices act

1915 – Corporate income tax

1911 – Public utility commission

1913 – Workers compensation law

 

Substantive due process during the Progressive Era:  workplace safety laws

In re Ten-Hour Law for Street Railway Corporations – Rhode Island, 1902 (54 A. 602); Lawrence v. Rutland Railway Co. Vermont, 1907 (67 A. 1091); Commonwealth v. Boston & Maine Railroad Co.   Massachusetts, 1915 (110 N.E. 264); O’Neil v. Providence Amusement Co. Rhode Island, 1920 (108 A. 887)

  • Challenges to workplace safety laws continued during the Progressive Era, and New England courts continued to reject most such challenges.  In Lawrence, Vermont’s court upheld a law requiring employers to pay wages weekly, albeit on narrow grounds:  the court reasoned that companies receiving public aid, such as railroads, could be regulated more closely than other companies and that in any event, the state’s anti-Dartmouth law gave the legislature power to enact the law.  But even New England courts had limits:  in Boston & Maine, the justices struck down a law limiting the hours of railroad baggage handlers because the law did not promote safety, and they warned that they would view hours laws with a skeptical eye unless a clear relation to safety were shown. 
  • Rhode Island was the only state in which a serious debate over the legitimacy of wage and hour laws took place.  In the Ten-Hour Law Case, the supreme court upheld a l0-hour law for street railway workers as a safety measure.  One judge dissented, arguing that the law opened the door to unlimited state regulation which would eventually destroy all liberty of contract.  Ten years later, in O’Neil, a divided court overturned on a 3-2 vote a law requiring all theaters to employ fire watchers and pay them $3 per day.  The majority conceded the state could require theaters to employ watchers but held that the pay requirement was outside the state’s police power because it was not related to safety.  The dissenters reasoned that the watchers were really state employees and, thus, the state could set their rate of pay even though the theaters were paying.

“On account of the characteristic imperfections of human beings, accidents in no small number seem to be inevitable under the conditions existing in many forms of present industrial employment.  The remedial relief afforded by the ordinary forms of litigation is uncertain and long delayed. … Under this system of litigation it seems clear that the great incidence of hardship and loss falls upon the employe, although at the same time it is often the source of injustice to the employer. … [I]f such legislation needs justification, it can be amply supported and upheld as a proper exercise of the police power.” – Justice ___, in Sayles


Substantive due process during the Progressive Era:  workers compensation laws

In re Opinion of the Justices (Workers Compensation Case) Massachusetts, 1911 (96 N.E. 308); Young v. DuncanMassachusetts, 1914 (106 N.E. 1); Sayles v. Foley Rhode Island, 1916 (96 A. 340)

  • In most late-19th-century American factories, conditions were dangerous, safety devices were few and serious injuries occurred with alarming frequency.  Early tort laws made it difficult for injured workers to obtain compensation from their employers, but the tide of worker suits grew steadily and by the early 1900s there was consensus, even among employers, that a new system of compensating workers for injuries had to be found. 
  • All New England states enacted workers compensation laws between 1911 and 1915.   After New York’s highest court struck down that state’s workers compensation law in early 1911, there was concern that New England courts would follow suit.  But New England legislatures avoided a key mistake:  unlike   New York, they gave employers and employees the right to opt out of workers compensation. 
  • In Massachusetts’s Workers Compensation Case, the supreme court quickly issued an advisory opinion signaling that the voluntary nature of Massachusetts’s law would be its salvation.  The advantages of workers compensation laws – for workers, the certainty of some recovery; for employers, the elimination of the risk of sympathetic juries making huge awards in the cases they lost – made the choice an easy one for virtually all workers and employers.  The court formally upheld the law three years later, praising it as a “humanitarian measure,” and courts in other New England states quickly followed suit.


Justice Holmes and substantive due process:  the Massachusetts Street Railway Case

Commonwealth v. Interstate Consolidated Street Railway Co. Massachusetts, 1905 (73 N.E. 530), affirmed, 207 U.S. 79 (1907)

  • The Street Railway case raised the question:  Is a regulatory law unconstitutional because it has the effect of reducing a company’s profits?  The case ultimately gave Oliver Wendell Holmes a showcase for his theory of due process. 
  • In the Street Railway case, the Massachusetts supreme court upheld a law requiring Boston streetcars to carry students at half fare; it rejected the company’s protest that the law substantially reduced its profits.  The court reasoned that nothing prevented the company from raising its fares overall, and it held in a subsequent case that there could be no unconstitutional taking of property unless a company could prove that its loss was ruinous and resulted directly from the law. 
  • On appeal, Justice Holmes, speaking for the U.S. Supreme Court, agreed with his former Massachusetts colleagues but went further:  he bluntly stated that legislatures must be allowed “a certain latitude in the minor adjustments of life” and that they could create “fractional and relatively small” losses for companies without running afoul of substantive due process.  
“The great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the infliction of some fractional and relatively small losses without compensation, for some, at least, of the purposes of wholesome legislation. … [States] must be allowed a certain latitude in the minor adjustments of life, even though by their action the burdens of a part of the community are somewhat increased.  The traditions and habits of centuries were not intended to be overthrown when [the 14th] Amendment was passed.” – Justice Oliver Wendell Holmes, in the Street Railway Case 


Substantive due process during the Progressive Era:  conservation laws

In re Opinion of the Justices (Forestry Case) – Maine, 1908 (69 A. 627)

  • The northern New England economy relied heavily on timber cutting.  Lawmakers did not give any thought to conservation until the late 19th century, when New England’s forests became visibly depleted.  Several New England states enacted flood control and forest and mineral conservation laws during the Progressive era.  In other regions, such laws drew challenges from businessmen and lawmakers who, in the words of legal historian Willard Hurst, were “bred in the buoyant opportunism of 19th century action”; but in New England the challenges received short shrift.  For example, in the Forestry Case, Maine’s justices stated unequivocally that a law restricting timber cutting on private lands was within the scope of the state’s police power:  controlling use of forests was not the same as taking them from the owner.  

“The amount of land being incapable of increase, if the owners of large tracts can waste them at will without state restrictions, the state and its people may be helplessly impoverished and one great purpose of government defeated.” Justice __, in the Maine Forestry Case


"Bay State Limited" passing Guilford, Connecticut (1893) - courtesy Library of Congress

Machine gun assembly at Browning plant, Bridgeport, Connecticut, World War I - courtesy U.S. Army Signal Corps







“[Plenary legislative power to limit working hours would substitute[e] for the constitutional right of individual liberty of contract the transient and fluctuating will of a legislative majority, which, both plutocrat and demagogue, will unceasingly strive to control, and against which the individual will be powerless to defend – alike helpless, whether the legislative spoliation of the employer or the industrial servitude of the employe shall prevail.” – Justice __ Blodgett, in the Ten-Hour Law Case

“[T]here is nothing in ordinary labor, by men of full age for more than eight hours a day, that calls for prohibition in the interest of the public health, the public safety, the public morals, or the public welfare.  It is obvious that many of the most successful men could not have attained the prosperity which they have enjoyed if prohibited from working for themselves or contracting to work for others more than a small part of the hours of each day.” – Justice _, in Boston & Maine


“On account of the characteristic imperfections of human beings, accidents in no small number seem to be inevitable under the conditions existing in many forms of present industrial employment.  The remedial relief afforded by the ordinary forms of litigation is uncertain and long delayed. … Under this system of litigation it seems clear that the great incidence of hardship and loss falls upon the employe, although at the same time it is often the source of injustice to the employer. … [I]f such legislation needs justification, it can be amply supported and upheld as a proper exercise of the police power.” – Justice ___, in Sayles









Newton & Boston Street Railway car, 1909 - courtesy Wikimedia Commons














Logging in Maine (1916) - courtesy Wikimedia Commons