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TENNESSEE NOTE.—The use of public credit in Tennessee has played a very considerable part in the state's political history. The constitution, however, contains no provision upon the subject of state indebtedness save that the credit of the state shall not be extended to or in aid of private persons, corporations or municipalities, and that state bonds shall not be issued to railroads which have defaulted in interest payments upon previously owned bonds or have disposed of them for less than par. The credit of cities and counties can be extended to or in aid of private parties only after an election in which the assent of threefourths of the qualified voters is obtained.' The administration of the state debt is the function of the state funding board, composed of the governor, secretary of state, comptroller and treasurer.

CHAPTER XVII.

CONSERVATION AND SOCIAL WELFARE.?

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Introductory.

SELF-PRESERVATION is doubtless the first instinct of human- 241. ity, but human beings, both in their individual affairs and in the conduct of their common business through their governmental agents, have in practice made use of this instinct chiefly to resist the more overt and apparent dangers that have threatened their lives and property. Often they have entirely neg. lected those subtler and more insidious enemies that lurk in hidden places and bring death and destruction before they are suspected, much less understood. Individuals and states have from the beginning of time been on guard against war and violence. Only in very modern times have they systematically sought to shield human life from disease and natural resources from wanton destruction. Only in our own day has hopeful

"See Scott, op. cit., pp. 131, seq., Caldwell. Constitutional History of Tennes see, pp. 241. seq.

SII, 31, 33. These provisions are the natural result of unfortunate experience.
SII, 29.

See Acts of 1915, ch. 58, 67.

General References: Commons and Andrews, Principles of Labor Legisla. tion: Goodnow. F. J., Social Reform and the Constitution: Clark. L. D.. The Land of the Employment of Labor; Eastman, Crystal. Work-Accidents and the Lair (Pittsburg Survey. Russell Sage Foundation) : Orth, S. P., Readings on the Relation of Gorernment to Property and Indlustry, Seager. H. R.. Social Insur14): American Labor Legislation Rerieur; onthly Rericir, issued by the l'. S. Bureau of Labor Statistics : Report of Industrial Relations ('ommission (l. 8). 1915: Van Hise, C. R.. The Conservation of Natural Resources in the l' nited States.

effort been put forth to rid society of the twin evils of poverty and crime.

The status of health laws has become fixed in American jurisprudence and their necessity is no longer disputed. Constitution-makers of the present, however, have thoroughly to consider the proposals that are being made to prevent the sacrifice of human life and vitality by the alleged mal-adjustments of present-day industrial organization. They may well consider, also, ways to preserve, as the common property of all, those natural resources—especially mines and forests—the quantity of which is distinctly limited and which are peculiarly in peril from the rapacity of individuals who think in terms of their own limited lives and not in terms of the perpetual life of society.

“We cannot,” President Roosevelt once said, addressing a conservation conference,

when the nation becomes fully civilized and very rich, continue to be civilized and rich unless the nation shows more foresight than we are showing at this moment as a nation.

He was seeking to stop the waste of the natural resources of the country, but his prophesy has even more weight when applied to what some writers call the country's human resources. If the people desire the life of the states and nation and the prosperity which is essential to their highest vitality and civilization to continue forever, they must take far-sighted steps to prevent the impairment of their own personal powers as well as the destruction of mines and forests and the soil and the streams. Needless to say the former is incomparably the more important, but the importance to human progress of adequate natural resources can scarcely be overestimated. The states and the nation have already begun to show activity toward the conservation of both.

From the numerous special phases of the question that might be discussed, those of labor legislation and the correct use of timber, mineral and water power resources are selected for treatment here. Their mention in the state constitutions is rather infrequent.

2 Proceedings of Conference of Governors, 1908, 3 (4).

Industrial

the Police

Modern industrial conditions apparently make inevitable 242. occasional accidents which deprive employes of life or limb. Conditions, Furthermore, they bring together vast numbers of persons who Power and are paid small wages and consequently are unable to meet with Process.” a suspension of those wages without destitution. Present-day factories are often unsanitary, the homes of employes, frequently owned by the owners of the plants at which they work, are often inconceivably unhealthful. Inability to move easily from place to place and to lay down one kind of work and take up another often results in a surplus of men desiring work of a given kind at a given place and consequently puts the employer in a position to obtain workers at wages barely sufficient to sustain life. The use of labor-saving machinery makes possible the widespread employment of women and children—even very young children-in the mills. In the large cities many dwellers in tenements undertake the manufacture of clothing and other articles, employing their whole families amidst revolting surroundings. All of these and other conditions present obvious obstructions to the attainment of individual welfare and consequently to the health of society.

To deal with more ancient evils than these there has grown up in jurisprudence the theory of the police power, whereby the people as a whole may regulate the conduct of individualsabridge their liberties in the interest of society and social welfare. “It may be said in a general way that the police power extends to all the great public needs."

In contra-distinction to the police power stands the doctrine of individual rights—especially the right not to be deprived of life, liberty or property without "due process” of lawt_firmly imbedded in the bills of rights and other clauses of constitutions. Vague and meaningless at first sight, these legal doctrines assume enormous practical importance when applied to a given state of facts. The legislature passes a law providing that a

Mr. Justice Holmes in Noble State Bank v. Haskell, 219 U. S., 104 (110. 111). He adds: “It may be put forth in aid of what is sanctioned by usage or held by the prevailing morality of strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Various conceptions of the police power are discussed by W. W. (ook in Columbia Law Review. May. 1907. The most valuable treatise on the subject is Ernest Freund's The Police Power.

*See federal constitution amend. 5 and 14; this or similar provision in the state constitutions. See McGhee, Due Proce88 of Law; Pound, Roscoe, Law in Books and Law in Action, XLIV American Law Review, 12.

243. Workmen's Compensation.

person injured in an industrial accident shall be remunerated by his employer, irrespective of who was at fault in the accident. Is this taking the employer's property without due process of law, or is it merely an exercise of the police power to prevent the social ills consequent upon the destitution of the helpless man's dependent family? The difference of opinion existing among the people concerning this and other similar questions is reflected by the courts, which have handed down varied and conflicting opinions regarding the constitutionality of legislative acts supposedly passed under the police power. The most important of these enactments are workmen's compensation laws, laws fixing hours of work or a minimum wage and laws regulating the labor of women and children.

The common law, as originally interpreted in the United States, made the employer liable in damages for injuries to employes received from accidents occurring in the course of employment provided the injury was due to the employer's negli. gence; and what should constitute negligence was gradually extended and widened both by statute and by judicial decision, until it generally included his own or his agents' failure to maintain suitable safety devices and other means to insure reasonably safe working conditions. Still, however, the employe assumed the risk-in the eyes of the law—for unavoidable accidents, and for accidents resulting from the carelessness of other employes of his own or inferior grade. Moreover, any carelessness on his own part that contributed to his injury prevented his recovering damages.

While the employer has been shielded by these three defences of Assumption of Risk, the Fellow Servants Rule and Contributory Negligence, numerous hardships have resulted to the employe. Furthermore, even when the right of action by the injured employe was recognized, delays in the courts and inequalities in counsel—the wealth of the employer usually providing more skilful attorneys,-somewhat offset, it is true, by the sympathies of jurymen, made justice at best expensive and uncertain. Consequently in the nineties, the idea that a better way would be for society or the particular industry as a whole

«See McGeegan v. Hughes, 15 Dist. (Pa.), 249; Faricell v. Railroad, 4 Met. (Mass.), 49; McCulley v. Clark, 40 Pa., 399.

to bear the burden of accidents—just as all the subscribers to fire insurance companies bear the losses of each fire—bore fruit in an act of Parliament, fathered by Joseph Chamberlain, establishing what is known as the "workmen's compensation” system. Instead of attempting, with hair-splitting nicety, to determine who, if anyone, is to blame for any injuries that may be sustained through the accidents that, in spite of precautions, sometimes occur, workmen's compensation undertakes to guarantee support for himself and family to every workman disabled by accident occurring in the course of his employment, unless the result of his own wilful misconduct. As forerunners of the workmen's compensation movement came a number of statutes and constitutional clauses abolishing the fellow servants rule and other coumon law limitation upon employers' liability.

During 1910 and the five years following, no less than thirty 244. one statesadopted workmen's compensation laws. Among Statutes. them were included all of the states north of the Ohio and Potomac and east of the Mississippi except Delaware, but none of the southern states lying wholly east of the Mississippi. The progressive West, however, has joined the conservative East in enacting such laws. Amounts of compensation for disability and death are fixed by the acts and are usually expressed in percentages of the injured party's regular earnings. Disputes are usually settled by designated administrative officials, subject to a limited review by the courts.

A majority of the acts make some provision for insurance either compulsory or permissive-in order that the required

• Compensation

Thus in Virginia (XII, 162) the fellow servant rule and assumption of risk rule are abolished in part as to railroad employes engaged in certain work. Contract or agreement by employe to waive this provision to be void. Legislature may enlarge such rights and remedies of such employes, or extend such rights and remedies to or otherwise enlarge present rights and remedies of any class of employes of railroads or of employes of any person, firm or corporation. See, also, Ariz.. XVIII, 3, 4, 7: Colo.. XV, 15: Miss., VII. 193: Mont.. XV. 16; X. M., XX, 16: Okla., IX, 36; S. C., IX, 15; Wyo., IX, 1, X, 4; XIX, Labor contracts,

Ariz., Cal., C'olo., Conn., Ill., Ind., Ia., Kan., La., Me., Md., Mass., Mich., Minn., Mont. Neb., Nev., X. II., N J., N. Y., O., Okla., Ore., Pa., R. L., Tex.. Vt.. Wash.. W. Va., Wis., Wyo.. (eight of these were in 1915). Also, Alaska, Canal Zone (workmen employed on the canal and subsidiary enterprises) and Hawaii. By act of May 30, 1908, the federal government adopted workme compensation in governmental enterprises to which it is appropriate. See Bulletin of Bureau of Labor Statistics.

In case of death compensation goes to the deceased's dependents. The Obla. statute does not apply to fatal accidents.

There are a number of instances of final decision by non-judicial officers (U. S.) and of consideration in the first instance by courts or by judges having power of summary decision (La.).

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