9.2.4 Rocky Mountains (1900-1930): Progressivism in the Rockies

Worker safety and hours laws

In re Boyce – Nevada, 1904 (71 P. 1); In re Kair – Nevada, 1905 (80 P. 463); Keefe v. People – Colorado, 1906 (87 P. 791); State v. Livingston Concrete Building & Manufacturing Co. – Montana, 1906 (87 P. 980)

  • After the U.S. Supreme Court upheld Utah’s 8-hour day law for miners in the Holden case (§ __), other Rocky Mountain courts followed Utah’s lead – except for Colorado.  In Boyce and Kair, Nevada’s supreme court upheld mining hours laws similar to Utah’s, reasoning, as had the Holden court, that too many hours of work would fatigue workers and impair mining safety.  In Livingston Concrete, Montana’s court upheld an 8-hour day law for municipal work on the ground recently adopted by the U.S. Supreme Court in a Kansas case (see § __), that states and municipalities had the right to negotiate all terms of government contracts, including hours of work.  Colorado’s supreme court stubbornly continued to resist the tide, however:  in Keefe, it indicated it would continue to follow the Morgan rule (§ __) and strike down all hours laws as an unwarranted interference with freedom of contract. 
“It may have been the purpose of the state to stamp with its approval the view now entertained by many, that … the restriction of a day’s work to that number of hours will so far promote the morality and improve the physical and intellectual condition of workingmen as to enable them the better to discharge the duties of citizenship.”  - Justice _, in Livingston Concrete

Home on the Range

Sweet v. Ballentine – Idaho, 1902 (69 P. 995); Pyramid Land & Stock Co. v. Pierce – Nevada, 1908 (95 P. 210); State v. Omaechevviaria - Idaho, 1915 (159 P. 280), affirmed, 246 U.S. 343 (1918);  Bountiful City v. De Luca – Utah, 1930 (292 P. 194); Allen v. Bailey – Colorado, 1932 (14 P.2d 1087)

  • Several Rocky Mountain courts considered substantive due process challenges to a unique regional reform:  sheep grazing laws.  Sheep, which were plentiful in the northern Rockies, were notorious for eating vegetation down to the roots and ruining grazing land for farming; the grazing laws were designed to limit this harm by limiting their range.  In Sweet and Omaechevviaria, sheep owners challenged an Idaho law prohibiting grazing within two miles of inhabited areas, and in Pyramid they challenged a similar Nevada law.  The two states’ supreme courts had little difficulty upholding such laws as reasonable exercises of state police power. 
  • DeLuca, decided at the end of the era, presented a more complicated problem; could a municipal utility that wanted to use a river as a power source, prevent  goats from grazing upstream and polluting the river?  Utah’s supreme court struck a balance, holding that the utility could not prevent the upstream herd owner from grazing altogether but that the owner must limit his goats’ pollution as much as possible.   And in Bailey, Colorado’s supreme court  upheld a law allocating public grazing lands between cattle and sheep owners.  The court held the allocation was a reasonable police regulation and even applied to federal land in the absence of any conflicting federal law.

Workers compensation

Cunningham v. Northwestern Improvement Co. – Montana, 1911 (119 P. 554)

  • 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 lawsuits 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 of the Rocky Mountain states enacted workers compensation laws starting in 1912.  The laws made employers liable for worker injuries regardless of fault:  workers were guaranteed a modest compensation for their injuries without the need to sue their employer; employers had to pay regardless of fault, but they were insulated from the risk of high jury awards.
  • Employers challenged such laws in many states, usually arguing that imposition of liability without their consent deprived them of freedom of contract and of their property without due process of law.  Rocky Mountain employers did not challenge such laws except in Montana.  In Cunningham, Montana’s supreme court struck down a 1909 statute that created a modified workers compensation system for coal miners, but it did so only because the law permitted employees to collect benefits and sue their employers for additional damages.  The court praised the general principles of workers compensation laws and made clear that if this one flaw were corrected, it would have no further objections to workers compensation.   


Resource conservation

Gas Products Co. v. Rankin – Montana, 1922 (207 P. 993); Chambers v. McCollum – Idaho, 1928 (272 P. 708)

  • During the Progressive era Rocky Mountain states, like those in other regions, began enacting laws to conserve their natural resources.  Most state courts held that such laws were an appropriate exercise of police power, but a divided Montana supreme court provided an exception in Rankin, where it overturned by a 3-2 vote a law restricting the burning of  natural gas to create carbon black and requiring that the energy released during the process, which had often been dissipated, be used for productive purposes. This was too much for the majority, who viewed it as an unwarranted intrusion on gas field owners’ right to use their property as they saw fit.  The court recognized that other state courts, beginning with Indiana’s in the 1880s (see § __), had upheld such laws but it “[did] not feel constrained to follow blindly [their] determinations  affecting the rights of our citizens.”  Further west, in the McCollum case Idaho’s supreme court had no difficulty upholding a law imposing assessments on forest land owners for fire protection services, holding that that was an appropriate police measure. 

“It is not difficult to distinguish between employments which in principle are not unhealthy or injurious, as a class, and those which are … Many of the most ardent opponents of any limitation to the time for labor in unhealthy or unsafe pursuits are actuated more by anxiety to profit by the long hours of toil of others than by any desire to labor so long themselves. … the strained [decision] in Re Morgan … led to so much trouble, suffering, and loss of life in Colorado.” – Justice _ in Kair



“It is a matter of public history in this state that conflicts between sheep owners and cattlemen and settlers were of frequent occurrence, resulting in violent beaches of the peace. … Sheep are not only able to hold their own on the public ranges with other livestock, but will in the end drive other stock off the range, and … the herding of sheep upon certain territory is an appropriation of it almost as fully as if it was actually inclosed by fences … [Without laws restricting sheep grazing,] the result will be, in the end, that isolated settlements must be abandoned, and the land in the state become one immense sheep pasture, to the detriment of the farming and mining interest; and settlement of the public lands will be retarded; the building up of homes on the public domain will almost stop.”  - Justice _, in Ballentine

“It will not suffice to say that because the theory or design of the lawmaking power, as evidenced by the act, is one which is not only new in principle, but revolutionary of certain preconceived and deeply rooted notions of lawyers, therefore the act is unconstitutional … In our judgment, the general scheme of this act is well within the police power of the state.  If the people … are of opinion that the public interests demand that industrial ins ought to be substituted, in whole or in part, for actions for wrongs, this court certainly cannot say that they are in error.” - Justice _, in Cunningham
“We are living in a free government, with definite guaranties of property rights, not under the rule of an emperor or czar.  Such legislation is paternalistic in character and conflicts with the guaranties of the national and state Constitution and is contrary to the theory upon which our government was formed.  The paternal theory of government is odious, and we should not treat lightly or disregard the sacred rights of prop recognized and guaranteed by this govt.” – Justice _, in Rankin