entiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions-having in view not merely her own health, but the wellbeing of the race-justify legislation to protect her from the greed as well as the passion of man.

Summing up what he considered the differences in sex that form the basis of social legislation for women, Justice Brewer concludes:

The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.1

It would seem that little remains unsaid in favor of legislation for the special protection of women in industrial work. Thus the argument as presented by Justice Brewer has stood

1 Muller v. Oregon, 208 U. S. 412 (1908).

high and dominant over practically all other discussions of courts in cognate cases. Monumental also, was the preparation for the defence of this act. For the first time in a case of this kind, counsel's brief was weighted with statistical and explanatory data. The material dealt not only with the extent of long working hours of women in Oregon, but with the subject of the effects upon women-physiological, mental, and moral, as a result of overwork. The brief was the first of those compiled by Mr. Louis D. Brandeis and Miss Josephine Goldmark, and came into standard use thereafter.1

Six important decisions validating acts that limit women's hours have been rendered by state and federal courts since 1908.2 The second Ritchie case of Illinois, before mentioned, heads the list in its affirmance of the "Woman's Ten Hour Law of 1909". The court defended its position in reversing the spirit of its former decision, on two counts,— first, the reason of health was not advanced in 1895, and second, even now an eight-hour law would probably not receive judicial sanction whereas a ten-hour limitation may be considered valid. Mr. Felix Frankfurter, in commenting upon this self-defense of the court, writes,-"A heroic effort is made to distinguish the first Ritchie case from the second Ritchie case. It is true that one was an eight-hour law and the other a ten-hour law, but the two cases are, in fact, irreconcilable in their underlying point of view."

Judge Learned Hand delivered the opinion of the Illinois court in this case. Citing the Oregon documents, he ex

1 It was a revision of this same brief which furnished the argument used before the supreme court of Illinois in its later testing of the ten-hour law.

"The Women and Children Act" of Colorado passed in 1903 restricting the work day to eight hours in mill, factory, manufacturing establishment and store, was annulled in 1907 on technical grounds, 41 Colo. 496. The court held, however, that "the laundry business must be considered healthful" even if the court had had power to judge the issue.

'Felix Frankfurter, "Hours of Labor and Realism in Constitutional Law," Harvard Law Review, vol. xxix, no. 4, p. 356.

plained at length his view of the differences between men and women and the special need of guarding the health of women as mothers. In addition he argued,

The differences existing between the sexes has (sic) often formed the basis of a classification upon which to found legislation. It is this distinction, when used as a basis for legislation, which authorizes legislation exempting women from military and jury service and from working upon the public highways or working in mines, and which permits men to enjoy, alone, the elective franchise and to hold public office, and fixes their status as the head of the family in exemption and homestead laws.1

And here the justice uttered the oft-repeated phrase,

It is known to all men (and what we know as men we cannot profess to be ignorant of as judges) that woman's physical structure and the performance of maternal functions place her at a great disadvantage in life; that while a man can work for more than ten hours a day without injury to himself, a woman, especially when the burdens of motherhood are upon her, cannot. . . .

In 1912, the confectioners of New York State challenged the validity of the fifty-four-hour law for women in factories which exempted canneries. Class discrimination was alleged. But the court, turning for authority to decisions in other states, maintained the power of the legislature to decide in what employments there should be restriction on grounds of health. Judge Blackmar for the court, showed his recognition of the need of adjustment to industrial conditions in the following words:

The development of the industrial life of the nation, the pressure of women and children entering the industrial field in competition with men physically better qualified for the 1 Ritchie & Co. v. Wayman, 244 Ill. 509 (1910).

struggle, has compelled them to submit to conditions and terms of service which it cannot be presumed they would freely choose.

Laws, which may be meddlesome interferences with the liberty of the individual in a primitive state, may, in a highly organized society, become essential to public welfare or even to the continuance of civil liberty.1

A Massachusetts ten-hour law, sustained by the state, was affirmed by the United States Supreme Court in 1914. Justice McKenna, speaking for the court, followed the well established doctrine that governs this type of enactment,

The legislation is purely a police regulation intended to establish the rights of children and women, who are treated as in a certain sense dependent and under an industrial disadvantage by reason of age and sex, to regular hours of employment for limited and designated periods of time, with fixed intervals for rest and refreshment, and to protect them in the enjoyment of the rights thus established, to the end that the health and endurance of the individual may be insured and the ultimate strength and virility of the race be preserved.2

An Ohio nine-hour act, declared valid by the Ohio judiciary, was also sustained by the Federal Supreme Court in 1914, taking for authority its prior decision in Muller v. Oregon.

3

Furthermore, while laws thus far upheld had limited women's working time to a maximum of ten hours a day, an eight-hour law was held constitutional in 1915.

This is the most drastic legal restriction of hours in private "non-hazardous" industries yet or since sustained by the judiciary, and it was affirmed by the United States Sup

1

1 People ex rel. Hoelderlin v. Kane, 79 Misc. 140 (1913).

* Riley v. Mass. 232 U. S. 671 (1914).

reme Court in an appeal on writ of error from the California decision. The act prohibits the employment of females for more than eight hours a day or forty-eight hours a week, in manufacturing, mechanical and mercantile establishments, laundries, hotels, restaurants, telephone and telegraph establishments, offices, and in express and transportation service provided the act does not apply to women employed in harvesting, curing, canning or drying of any variety of perishable fruit or vegetable. In his expression of the court opinion, Mr. Justice Hughes quoted the arguments of Justice Brewer regarding woman's physical structure and the vigor of the race, and continued in a generous defence of this act of the legislature:

It is manifestly impossible to say that the mere fact that the statute of California provides for an eight-hour day, or a maximum of forty-eight hours a week instead of ten hours a day or fifty-four hours a week, takes the case out of the domain of legislative discretion. This is not to imply that a limitation of the hours of labor of women might not be pushed to a wholly indefensible extreme, but there is no ground for the conclusion here that the limit of the reasonable exertion of protective authority has been overstepped.1

Justifying the exemptions made by the legislature as properly within its jurisdiction, Justice Hughes recalled

the well-established principle that the legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the legislature may be guided by experience. . . . It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. As has been said, it may 'proceed cautiously, step by step,' and 'if an evil is specially ex

1 Miller v. Wilson, 236 U. S. 373 (1915).