7.3.2 Southwest (1900-1930): Courts and Workplace Laws

The rise of substantive due process:

  • The establishment of railroad commissions in Southwest states opened the door to an ever-expanding body of laws and agencies designed to address the many problems that followed in the wake of industrialization.  After 1890, Southwestern legislatures began to enact pure-food and public health laws; laws regulating physicians, pharmacists and other professions; laws for conservation of fish, game and soil; and laws regulating labor-management relations, unfair business practices and workplace safety.  The stream of laws grew steadily to the end of the century; it peaked in Texas somewhat earlier (1905-1915) than it did in New Mexico, Arizona and California (1910-1920). 
  • Southwestern businesses frequently challenged reform laws as unconstitutional.  They usually argued that the laws violated one or more of the following legal doctrines, collectively known as “substantive due process”: 
    • Due process and freedom of contract,, because the laws deprived them of their property and contract rights to conduct their business and make bargains with others on terms of their own choosing.
    • Equal protection, because the laws unfairly singled out their businesses for regulation and thus discriminated against them.
    • The delegation doctrine:  only legislatures could create regulations, and they could not let agencies do the job for them. 
  • In the 1890s, the U.S. Supreme Court and many American state courts began examining regulatory laws critically.  The courts upheld most laws but struck down enough that reformers complained they were improperly interfering with necessary social change.  Some reformers even argued that courts should not be allowed to examine reform laws at all. 

Substantive due process:  Amelioration of working conditions

Johnson v. Goodyear Mining Co. – California, 1899 (59 P. 304); Ex parte Dickey – California, 1904 (77 P. 924); Jordan v. State – Texas, 1907 (103 S.W. 633); Ex parte Miller – California, 1912 (124 P. 427), affirmed, 236 U.S. 373 (1915); Ex parte Farb – California, 1918 (174 P. 320)

  • Many Progressive-era reforms and many substantive-due-process cases involved laws affecting workplace conditions.  Some Southwestern jurists were sympathetic to the “free labor doctrine” that working conditions, even safety conditions, should be strictly a matter for negotiation between employer and employee, with no legislative interference.  Others were sensitive to the increasing disparity of bargaining power in an age when large companies were coming to dominate the American economy.
  • In the Southwest, the balance between the competing views shifted throughout the era.  In Johnson, at the beginning of the era, California’s justices vigorously defended the free-labor point of view in striking down an 1897 law requiring companies to pay their workers at least once a month.  The justices argued that the law, far from protecting workers, patronized them.  In Jordan, a Texas appellate court took a similar approach in striking down a 1905 law prohibiting employers from paying their workers in scrip redeemable only at a company store, although it suggested it would uphold laws clearly “intended for the benefit of the weaker and against the strong, or … to prevent coercion.”
  • As the Progressive era advanced, many American courts took an increasingly deferential attitude to reform legislation (see §§ ___).  In Dickey, the California again took a free-labor approach in striking down a 1903 law limiting the amount that a labor agent could charge to 10% of a month’s earnings for any worker for whom he secured a job.  But Justice Lucien Shaw, dissenting, delivered a strong criticism of free-labor advocates’ failure to recognize disparity of employer-employee bargaining power in the modern industrial age.
  • California’s record was mixed.  In Miller, Justice Shaw, now speaking for the majority, upheld a 1911 law limiting women’s work hours on the ground that it was an appropriate public health and safety measure; but six years later, free-labor sentiment resurfaced in Farb when a divided court struck down a 1917 law prohibiting employers from collecting tips given to employees.  The majority held that the legislature could force employers to tell customers who was getting the tips but it could not interfere with employer-employee agreements on that subject.   

 “How much is there of mutual freedom of contract between the proprietor, who has his choice and time in the matter of selecting his servants, and the average applicant for the position of waiter or bellboy or chambermaid, whose every hour of unemployment is a step nearer to starvation?  We have already banished this fiction from many of our statutes.” – Justice _ Richards (dissenting), in Farb

Substantive due process:  Promoting workers rights

St. Louis Southwestern Railway Co. of Texas v. Griffin – Texas, 1914 (171 S.W. 703); Poye v. State – Texas, 1920 (230 S.W. 161)

  • During the Progressive era, employers frequently circulated “black lists” of union activists; being on the list meant that a discharged activist had no hope of employment elsewhere.  Many states enacted “true cause” laws requiring employers to give discharged workers a truthful statement of the reasons for their discharge, in the hope that this would reduce black lists’ effectiveness as an anti-union tool. 
  • Judicial free-labor sympathy in Texas resurfaced in Griffin, where the Texas supreme court struck down the state’s 1909 anti-blacklisting law, reasoning that the law interfered with the employer’s right to discharge employees for any reason and keep that reason to itself.  Texas courts softened their stance slightly in Poye, near the end of the era, when they upheld a 1919 law prohibiting employers from penalizing or firing employees for testifying to state officials about workplace safety conditions.  
File:Bemis aug1920.jpg
Bagging factory, Houston, Texas (1920) - courtesy Wikimedia Commons
File:Bisbee deportation lowell.jpg
Deportation of striking miners, Bisbee, Arizona (1917) - courtesy Arizona Historical Society and Wikimedia Commons
“The corporation and the laborer are prohibited from making any contract whereby wages are to become due for a longer period than one month as a period of employment, or by which the laborer is to be paid in anything except money or negotiable checks.  The working man of intelligence is treated as an imbecile.” – Justice __, in Johnson


“Here, then, is laid down a most drastic rule governing the conduct of a man in the prosecution of a harmless, legitimate, and beneficial business.” – Justice _, in Dickey 


“Under some circumstances, a class of persons … are in reality compelled to act at the dictation of others, whose self-interest leads them to take an undue advantage; and in such cases the Legislature may, in the exercise of police powers, declare that certain contracts, which … it deems injurious to the general welfare and prosperity of the people, shall not be made, and, if made, shall not be enforceable.”  - Justice _ Shaw (dissenting), in Dickey


“The statute … is .. violative of the right of the laborer to make contracts with his employer or to sell his labor for any consideration satisfactory to himself, or for the payment of his labor in any commodity suitable to himself.”  - Justice _, in Jordan 



“The requirement that the corporation give to the discharged employe, on his demand, a statement of the ‘true cause’ for his discharge, necessarily implies that there must have been a cause to justify the dismissal, else, how could the ‘true cause’ be given?  The value of the contract to each party consisted  largely in the mutual right to dissolve the relation of master and servant at will.  The destruction of that right in the corporation was a violation of its liberty of contract.” – Justice _, in Griffin