In 1886, the Pennsylvania Supreme Court struck down a law that prohibited employers from paying wages in company store scrip and mandated monthly wage payments. The court held that the legislature could not prescribe mandatory wage contracts for legally competent workingmen. The decision quashed over two decades of efforts to end the “truck system.” Although legislators had agreed that wage payments redeemable only in company store goods appeared antithetical to the free labor wage system, two obstacles complicated legislative action. Any law meant to enhance laborers' rights could neither favor one class over another nor infringe any workingman's ability to make voluntary contracts. These distinctions, however, were not as rigid and laissez faire-oriented as depicted by conventional history. Labor reformers argued that principles of equity must supplement these categories of class legislation and contract freedom. This essay explores how legal doctrine helped both sides of the anti-truck debate articulate the contested meanings of liberty. Ultimately, the Godcharles ruling enshrined the specialness of workingmen's labor contracts and rejected the use of equity principles to justify contract regulations, but the controversy also informed future labor strategies, especially the turn to state police powers as the rubric under which workers' safety, morals, and health could be protected.
The author would like to thank Charles W. McCurdy and Brian Balogh for their encouragement and support through several drafts of this essay. Michael Holt, Rachel Shapiro Shelden, Jaime Smith, David Hill, Logan Sawyer, Alex Gourevitch, and Andrew Meade McGee provided insightful questions and comments on earlier drafts. Archivists at the Pennsylvania State Archives and the Pennsylvania State Library, both in Harrisburg, PA, provided indispensable assistance. The original case files were not located. Two anonymous readers for the Journal for the Gilded Age and Progressive Era provided enormously helpful feedback.
2 Atlantic Reporter, vol. 6 (St. Paul, 1887), 354–56.
3 Godcharles v. Wigeman, 113 Pa. St. 431 (1886). The original contract paid $4 for one ton of iron; however, the company set one ton equal to 2,240 pounds. The new contract reduced wages to $3.60 per ton and kept the company's inflated measure of one ton. (The “short ton” of 2,000 pounds later became standard.) Meanwhile, the company maintained the outlawed practice of paying employees with store orders, while providing only minimal cash. Wigeman sued for $87.67 in arrears. On Milton, PA, and the Godcharles company, Larry Hill, “A Pictorial History of Milton, PA,” www.miltonhistory.org (accessed Sept. 22, 2012).
4 The 1881 law was entitled, “An act to secure to operatives and laborers, engaged in and about coal mines, manufactories or iron and steel, and all other manufactories, the payment of their wages at regular intervals and in lawful money of the United States,” Pennsylvania Session Laws (Harrisburg, 1881), 147 [hereafter P.L.]. Most labor laws at this time were “default rules,” which allowed “set-off” contracts that could abridge the law. In 1868, for example, the Pennsylvania General Assembly passed an eight-hour law for workingmen, but it was only binding if no contract was made to the contrary. See “An act to limit the hours of labor constituting a day's work in this state to eight hours,” P.L. (Harrisburg, 1868), 99.
5 The numerous state laws regarding the truck system demonstrate its prevalence in the late nineteenth-century Northeast. Pingree, Darius H., “The Anti-Truck Laws, and Some Other Laws—A Legal Criticism,” The American Lawyer 3 (Sept. 1895): 386.
6 On the term “wage slavery” in nineteenth-century labor discourse, Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York, 1998), 86.
7 Trachtenberg, Alexander, The History of Legislation for the Protection of Coal Miners in Pennsylvania: 1824–1915 (New York, 1942), 25.
8 Fink, Leon, “Labor, Liberty, and the Law: Trade Unionism and the Problem of the American Constitutional Order,” Journal of American History 74 (Dec. 1987): 904–25 (quotation 906). Also, Tomlins, Christopher, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York, 1985); Tomlins, “Review Essay, The Consumption of History in the Legal Academy: Science, Synthesis, Perils, and Prospects,” Journal of Legal Education 61 (Aug. 2011): 139–65.
9 Equity refers to a set of legal principles that supplements common law and/or statutory law when strict application of the law would render an unjust verdict. Equity jurisdiction allows judges to use discretion and apply flexibility in legal rulings; judges delivering an equitable remedy do not consult a jury. Cases in equity provide different legal remedies than cases argued at law. The former does not award monetary damages but provides injunctions or decrees ordering a certain action. See Pomeroy, John Norton, A Treatise on Equity Jurisprudence as Administered in the United States of America; Adapted for all the States, and to the Union of Legal and Equitable Remedies under the Reformed Procedure, vol. 1 (San Francisco, CA, 1881), introduction. Also Brown, Brendan F., “Equity in the Law of the United States of America” in Equity in the World's Legal Systems, ed. Newman, Ralph (Brussels, Belgium, 1973), 205–22, esp. 206. Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge, MA, 1977), esp. 165–67, 69. Horwitz explains that in the eighteenth century, courts would not enforce contracts where inadequate consideration could be proved. This changed in the nineteenth century with the advent of the law merchant governing contractual relations.
10 Godcharles, 437.
11 “Police power” refers to the power of the state to regulate to protect public health, safety, and morals. Novak, William J., Intellectual Origins of the State Police Power: The Common Law Vision of a Well-Regulated Society (Madison, 1989).
12 Godcharles, 437.
13 Forbath, William E., “Politics, State Building, and the Courts, 1870–1920” in Cambridge History of American Law, ed. Grossberg, Michael and Tomlins, Christopher (New York, 2008), 643–96, esp. 648–49.
14 Montgomery, David, Beyond Equality: Labor and the Radical Republicans, 1862–1872 (1967; Urbana, 1981); McCurdy, Charles W., “Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897,” Journal of American History 61 (Mar. 1975): 970–1005; McCurdy, “The ‘Liberty of Contract’ Regime in American Law” in The State and Freedom of Contract, ed. Scheiber, Harry N. (Stanford, CA, 1998); Foner, Eric, Reconstruction: An Unfinished Revolution, 1863–1877 (New York, 1988); Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (1970; New York, 1995); Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC, 1993); Siegel, Stephen A., “The Revision Thickens,” Law and History Review 20 (Autumn 2002): 631–37. Standard interpretations of Gilded Age private and public law include Fiss, Owen, Troubled Beginnings of the Modern State, 1888–1910 (New York, 1993); Wiecek, William, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York, 1998). For a distillation of several revisionist perspectives, Rowe, Gary D., “Lochner Revisionism Revisited,” Law & Social Inquiry 24 (Winter 1999): 221–52.
15 McCurdy, “Government-Business Relations,” 977, 997. In the 1870s, the U.S. Supreme Court defined an “ordinary trade” as a private business enjoying no benefit of public subsidies and not affected by the public interest.
16 For a standard narrative regarding the rise and decline of “liberty of contract,” Irons, Peter, A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution (New York, 1999), 248–65, 307–18; Friedman, Lawrence, A History of American Law, rev. ed. (New York, 2001), 404–23, 548–49. For an account that depicts “liberty of contract” as falling out of judicial favor through the early 1920s and 1930s, Cushman, Barry, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York, 1998).
17 Fox, James W. Jr., “The Law of Many Faces: Antebellum Contract Law Background of Reconstruction Era Freedom of Contract,” American Journal of Legal History 49 (2007): 61–112. Also, Simpson, A. W. B., “The Horwitz Thesis and the History of Contracts,” University of Chicago Law Review 46 (1979): 533–601.
18 Benedict, Michael Les, “Laissez Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (Autumn 1985): 293–331, 305. As Benedict explains, “‘class,’ or ‘special’ legislation [meant] using the power of government for the benefits of particular groups at the expense of the rest of society. It made government the means of theft, the direct antithesis of the legitimate purpose of government, which all knew was to offer protection against such wrongs. It was this conviction, a fundamental idea about right and wrong, not a doctrinaire belief in the inefficiency of government economic intervention that lay at the heart of American laissez-faire constitutionalism.” Similar ideas were expressed throughout the public debate on the truck system. By bringing in such legal concepts and considerations, one complicates the older and still widespread view that “liberty of contract” jurisprudence arose from legislators' and jurists' acceptance of social Darwinism or laissez-faire economics. For this older explanation, see Twiss, Benjamin, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (Princeton, 1942). Also Paul, Arnold M., Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (New York, 1969).
19 As in, most famously, Muller v. Oregon, 208 U.S. 412 (1908).
20 The implication of rulings such as Munn v. Illinois, 94 U. S. 113 (1873), and Ruggles v. Illinois, 108 U.S. 526 (1883), which held that the state of Illinois could apply its police powers in a broad way to the railroads, on account of that industry's special nature.
21 Many legal scholars know Godcharles as a precedent in the notorious U.S. Supreme Court decision, Lochner v. New York, 198 U.S. 45 (1905), 63. Holmes's much-cited dissent in this case included his denunciation of the majority as “enact[ing] Mr. Herbert Spencer's Social Statics.” Holmes did not directly refer to Godcharles. McCurdy, “The ‘Liberty of Contract’ Regime,” 163–97; Hovenkamp, Herbert, Enterprise and American Law, 1836–1937 (Cambridge, MA, 1991), 182.
22 McCurdy, “Government-Business Relations,” 1005.
23 Wiecek, Lost World, 48.
24 Legal scholar G. Edward White explains the formalistic mindset this way: “A particular interest of intellectuals in the quarter century after the war was conceptualization—the transformation of data into theories of universal applicability. Their source of unity was to be methodological: the ‘scientific’ ordering of knowledge.” White, G. Edward, “The Intellectual Origins of Tort in America,” Yale Law Journal 86 (1977): 671–93 (quotation 676). See also: Horwitz, Morton, “The Rise of Legal Formalism,” Journal of American Legal History 19 (1975): 251–64; Scheiber, Harry, “Instrumentalism and Property Rights: A Reconsideration of American ‘Styles of Judicial Reasoning’ in the Nineteenth Century,” Wisconsin Law Review 1 (1975): 1–18.
25 Already in 1863, Governor Andrew Gregg Curtin called upon the Pennsylvania General Assembly to alleviate the “evils” of the truck system. “Report of the Bureau of Industrial Statistics,” Legislative Documents (Harrisburg, 1879–80), 2:361 (hereafter Legis. Doc.).
26 For a contemporary view of the application of police power to liberty of contract issues: Judson, Frederick N., “Liberty of Contract under the Police Powers,” The American Law Review 25 (1891): 873.
27 Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania 1776–1860 (Cambridge, MA, 1948), 191, 262.
28 Forbath, William E., “The Shaping of the American Labor Movement,” Harvard Law Review 102 (Apr. 1989): 1109–1256.
29 Balogh, Brian, A Government Out of Sight: The Mystery of National Authority in the Nineteenth Century (New York, 2009), 352–54.
30 “Records of the General Assembly, House of Representatives, House File,” 1863, House File, 87th Session, folder 8, box 19, 1-0224, Record Group 7, Pennsylvania State Archives, Harrisburg. The legislature first received petitions calling for the end to the company store system back in 1843. James Lynn Barnard, Factory Legislation in Pennsylvania: Its History and Administration (Philadelphia, 1907), 37.
31 The surviving 1863 petitions all contain the same printed language. Unequal bargaining power “render[s workingmen] almost entirely dependent upon the will of their employers for the amount of their wages and the mode of their payment; that their said employers have in many instances paid their wages or part of their wages in order upon storekeepers and shopkeepers for articles of merchandise; that said shopkeepers and storekeepers charge them a very large profit upon the goods and merchandise received in payment on said orders, and that be reason of this system your petitioners suffer very grievously.”
32 “Report of the Bureau of Industrial Statistics,” 2:367–88.
33 Trachtenberg, Protection of Coal Miners, 16.
34 “Report of the Bureau of Industrial Statistics,” 2:354.
35 “Report of the Bureau of Industrial Statistics,” 2:354, elaborated on profit allocation in the truck system: “The store allows a percentage to the firm issuing the orders, upon all sales made, thus adding to the profits of the manufacturer a sum extorted from the amount paid to the wage worker, without the consent of the worker himself, to whom, as earnings, it justly belongs.” When questioned by a clerk for the Bureau of Industrial Statistics, a bookkeeper for a company store in Plymouth, PA, explained that because the store paid a premium of 4 percent on scrip payments to the company issuing the scrip, the store therefore lowered the cost to cash customers by 5 percent. Ibid., 2:378–80.
36 “The comparison of prices, as given in the above returns, will average 16 2/3 per cent. higher in company stores then in others.” Ibid., 2:386.
37 Pennsylvania. Senate bill No. 255, “An Act to prevent the payment of workmen and laborers in orders upon storekeepers,” in Pennsylvania Legislative Record, PA, 1863, 708 (hereafter PA Legis. Record). Since I did this research, these records have become available at http://www.phmc.state.pa.us/bah/dam/rg/sd/r7sd2.htm#7.51.
38 For example, see the testimony of Franklin Gowen, owner of the Reading Railroad. Pennsylvania General Assembly, “Report of the Committee on the Judiciary, (General) of the Senate of Pennsylvania in Relation to the Coal Difficulties, with accompanying testimony,” Legis. Doc. (Harrisburg, 1871), 1528–34. Gowen, however, had his own motives. In the early 1870s, he maneuvered to purchase large tracts of coal mining land through the lower anthracite region of Pennsylvania, where small owners and mine operators traditionally existed. It seems that the larger, corporate mines might have had an easier time establishing and maintaining company stores, as opposed to the smaller mining concerns that were more susceptible to the demands of their laborers. On Gowen's business ventures and anti-labor union activity, Kenny, Kevin, Making Sense of the Molly Maguires (New York, 1998), 48.
39 “Report of Labor,” Legis. Doc. (Harrisburg, 1874), 1:430–36.
40 See Trachtenberg, Protection of Coal Miners, for more details on the company store system in practice.
41 “Report of the Bureau of Industrial Statistics,” 2:361. The text of the 1863 bill as well as Governor Curtin's address to the legislature are reprinted here.
42 Curtin quoted in Trachtenberg, Protection of Coal Miners, 15–16. Trachtenberg quotes Governor Curtin's speech.
43 PA Legis. Record, 1863, 707.
44 The bill passed with wide margins in both Houses. Senate vote: 24–9; House vote: 85–4. Ibid., 707, 796.
45 “Report of the Bureau of Industrial Statistics,” 2:361.
46 Gillman, The Constitution Besieged, 61–62, emphasizes the long history of the “master principle of neutrality,” beginning with the founding and developing through the Jacksonian era.
47 Louis Hartz, Economic Policy, 126, 161, 166–67, 175.
48 Witt, John Fabian, “Rethinking the Nineteenth-Century Employment Contract, Again,” Law and History Review 18 (Fall 2000): 627–57.
49 The default rule sought “to limit the hours of labor constituting a day's work in this state to eight hours.” P.L. (Harrisburg, 1868), 99.
50 Sullivan, William A., The Industrial Worker in Pennsylvania: 1800–1840 (Harrisburg, 1955), 34–35. On the changing context of such default rules, Orren, Karen, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (New York, 1991).
51 “Report of Labor,” 1874, 1:309–11.
52 Kenny, Molly Maguires, 66–68, 111–12.
53 Ibid., 102.
54 McCurdy, “‘Liberty of Contract’ Regime,” 171–72.
55 John V. Orth, “Contract and the Common Law” in The State and Freedom of Contract, ed. Scheiber, 60.
56 The Avondale mining disaster of September 6, 1869, which took the lives of 179 miners, accelerated the turn to police-power-based legislative regulation of mine safety. Trachtenberg, Protection of Coal Miners, 36, 41.
57 Kenny, Molly Maguires, 129.
58 Commonwealth v. Bonnell, 8 Phila. 534 (1871). Text of the case may be found in: Legis. Doc. (Harrisburg, 1871), 927–37.
59 Ibid. (Emphasis in original.) The Latin phrase sic utere tuo ut alienum non laedus means “use your property so as not to injure another.” On use of this legal phrase in the nineteenth century to uphold municipal and state regulations, see Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, 1996).
60 Commonwealth v. Wilkes-Barre Coal Co., 29 L.J. 213 (1872).
61 Ibid. (Emphasis in original.)
62 Harding continued, “Quoting, as we did in Bonnell's case, substantially, from one of the very eminent jurists of our State, a constitution lays down certain great and fundamental principles, according to which the several departments it calls into existence are to govern the people; but all auxiliary rules which are to give effect to these principles must, form the necessity of the case, come from the legislature. It is for this very purpose that the constitution establishes a legislature.” Ibid.
63 While anti-truck proposals arose every year, from 1863 to 1872 these died on first, second, or third reading. Unfortunately, records from the Judiciary Committee do not exist. However, recommendations of the committee were usually read with the bill on whichever reading. The focus during these years appears to have been on local legislation, pertaining only to a district or county. These local laws were made unconstitutional in the Pennsylvania Constitutional Convention of 1874.
64 Legis. Doc. (Harrisburg, 1875), 374.
65 Kenny, Molly Maguires, 139, 148, 176. By 1874, the Reading Railroad, through its creation by state charter of the Philadelphia & Reading Iron & Coal Co., owned over 100,000 acres of coal land and dominated the mining industry of the lower anthracite region. The W.B.A. held considerably more bargaining power with small-scale mine owners and operators; thus, when the Reading Railroad controlled those interests, the W.B.A. effectively lost its opportunity at trade unionism.
66 “Pennsylvania Greenbackers,” New York Times, Mar. 24, 1880; Lause, Mark A., The Civil War's Last Campaign: James B. Weaver, the Greenback-Labor Party and the Politics of Race and Section (Lantham, MD, 2001).
67 PA Legis. Record, 1874, 1727.
69 The article, “Workingmen's Meeting—An Important Occasion,” Reading Eagle, n.d., was reprinted in the PA Legis, Record, 1874, 1727.
70 “Strike in Pennsylvania: The Scrip Payments of the Lancaster Manufacturing Company—Dissatisfied Workmen,” New York Times, Sept. 17, 1874, 7.
71 Legis. Doc. (Harrisburg, 1875), 374. (Emphasis added.)
72 Lamoreaux, Naomi, “Partnerships, Corporations, and the Limits on Contractual Freedom in U.S. History: An Essay in Economics, Law, and Culture” in Constructing Corporate America: History, Politics, Culture, ed. Lipartito, Kenneth and Sicilia, David (New York, 2004), 33–34. For example, in Boyd v. Alabama, 94 U.S. 645 (1876), the U.S. Supreme Court upheld a state law that prohibited lotteries. A lottery being carried out under a formerly permissive law “did not estop the state from denying its constitutionality.” (Ibid., 646.) In Stone v. Mississippi, 101 U.S. 814 (1880), the Court upheld Mississippi's prohibition of lotteries, even though this required abridging a vested contract to carry out a lottery made prior to the repeal of the lottery law. Both cases illustrate the “inalienability doctrine” regarding a state's police powers to regulate public health and morals.
73 PA Legis. Record, 1876, 707.
74 Pennsylvania Constitution of 1874, Article 3, Section 7.
75 PA Legis. Record, 1876, 607–08, 612. Stanton read from a circular from Joseph Walton & Company, a mining operation, that threatened to discharge workingmen who did not use the company store. Stanton further pointed out that eight corporations controlled Luzerne County mining operations. Once indebted, he insisted miners could not escape the cycle of company store coercion.
76 “Everyone has a right to demand that he be governed by general rules, and a special statute that singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but an arbitrary mandate, unrecognized in free government.” Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest upon Legislative Power of the States of the American Nation (Boston, 1871), 391.
77 PA Legis. Record, 1876, 744.
78 Dewees, F.P., The Molly Maguires: The Origin, Growth, and Character of the Organization (New York, 1877); Kenny, Molly Maguires, 158, 186, 213.
79 PA Legis. Record, 1879, 271.
80 Quoted in ibid., 1845–47.
81 By the spring of 1879, advocates could cite a stream of labor group resolutions and newspaper editorials. Hines read from several resolutions from the Workingmen's Protective Association in Mercer County, the workingmen from the Coleram Collieries, and a letter to the “Editors National Labor Tribune” from Fort Pitts, Pennsylvania on the “accursed order system.” Likewise numerous newspaper editorials and articles were submitted in support of the anti-truck proposal. PA Legis. Record, 1879, 1843, 1845–46.
82 Hines presented a litany of public and expert testimony in favor of an anti-truck law, including neighboring states' labor reports, academic reports, such as economist Francis Amasa Walker's relevant papers, constituent mail from his district, and case law. PA Legis. Record, 1879, 1841–50. Schnatterly repeatedly cited the Ohio anti-truck law; compare PA Legis. Record, 1879, 1162; 1881, 812–14.
83 Ibid., 1881, 812–14.
84 PA Legis. Record, 1879, 1849.
85 Perkins v. Gay, 3 Serg. & Rawle 327 (1817), 332. Judge Gibson, writing for the majority, affirmed the validity of private contracts made to circumvent a property boundary line created by the Susquehanna Company commissioner. Gibson upheld “contracting out,” writing that the “contracts will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party that would affect any other contract.”
86 Billmeyer v. Evans & Rodenbaugh, 40 Pa. Ct. 324 (1861). In this case, Susan Billmeyer signed a contract that waived her right to an 1861 stay law, but then she resisted the stay of execution. Judge Warren Woodward, who wrote the court's opinion, stated, “If the parties to a contract include in it the legal remedy by which it is to be enforced, a legislative enactment changing the remedial process agreed on in regard to that contract, is as clearly unconstitutional as the attempt to impair the obligation of any other contract.”
87 Ernst, Daniel R., Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Urbana, IL, 1995), 69, 75, 81. Also, Hovenkamp, Enterprise and American Law, 226–27.
88 PA Legis. Record, 1879, 1849; 1881, 487.
89 Ibid., 1879, 1849.
90 Ibid., 1848.
91 Bishop v. Reed, 265.
92 Ibid. In Earl of Chesterfield v. Janssen (1751), 2 Ves. Sr. 125, 155, Lord Hardwicke arranged the forms of fraud under equity jurisdiction into four categories, the second of which is most relevant to the anti-truck debate: “It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other; which are unequitable and unconscientious bargains; and of such even the common law has taken notice; for which, if it would not look a little ludicrous.”
93 PA Legis. Record, 1879, 1848.
94 Ibid., 1232.
95 Herr cited decisions denying the constitutionality of special acts of legislation, such as The People, ex rel. John McConvill v. Isaac Hills, 35 N.Y. 449 (1866). In this ruling, the New York Supreme Court struck down an 1865 law that changed the electoral process for the Rochester and Genesee Valley Railroad Company board of directors because the amendment failed to reveal these changes in the title of the bill, contradicting a provision of the New York constitution.
96 PA Legis. Record, 1879, 1227.
97 Wheeler v. Philadelphia, 77 P. F. Smith 338 (1875).
98 Senator Herr refuted the claim that the anti-truck bill was a permissible use of class legislation: “The legislature has the power to classify cities,” but the Court had not gone so far “as to say that when you have established a class or make a classification, that you can take out of that class or that classification certain particular and certain individuals.” PA Legis. Record, 1879, 1231.
99 Wheeler v. Philadelphia, 349.
100 Governor Hartranft, Address to the General Assembly, Jan. 4, 1879, in Pennsylvania Governor: Messages and Addresses (Harrisburg, 1874–83), 15.
101 Papers of the Governors (Harrisburg, 1871–1883), 9:830.
102 Pennsylvania Manual, vol. 101 (Harrisburg, PA, 1972–73).
103 On Jan. 4, 1881, Hoyt told the General Assembly: “The tendency to, or existence of, such mischief as the ‘truck’ or store order system would come under notice, and well-considered legislation, based on adequate facts, could be invoked for its suppression. The proper relation between the wage-laborer and the owner of the wage-fund, in the divisions of the product of their joint enterprise, would more clearly appear, and an equitable plan of arbitration adopted, instead of the unprofitable and destructive remedy by a strike.” Pennsylvania Governor: Messages and Addresses, 1874–1881, 31.
104 PA Legis. Record, 1881, 2239.
105 Welsh represented one of the most productive coal producing regions in the commonwealth. A former miner, he admitted being discharged from a Schuylkill mine for “advocating the rights of my fellow workmen.” Welsh sponsored several pieces of protective legislation in the 1881 session, including a mine ventilation and safety act. Ibid., 1503. On Welsh's role in the W.B.A., Kenny, Molly Maguires, 176.
106 PA Legis. Record, 1881, 812. Schnatterly explained, “When an operator is unable to pay cash he can pay by cash order, which carries him over at least three months, and he can still carry himself, if his credit is good and if he furnishes goods and supplies to the employees at reasonable and fair prices the same as are furnished by the merchants. For, if the employee does not present his cash order when it is due, no penalties, under this law, attach to the employer.”
107 Schnatterly stated that Governor Hartranft's veto message “acting by and with the advice of the Attorney General, made no allegation that the third section of this bill restricted the right of contract. It is not alleged in the veto message of 1879.” Ibid., 816.
108 Schnatterly paraphrasing Hantraft in ibid.
109 Ibid., 492. In a roll call on the question, “Does this bill interfere with the making of contracts?” the House voted 33 yea and 173 nay.
110 Ibid., 821.
111 Ibid., 960.
112 Ibid., 963.
113 Siegel, Reva, “Home As Work: The First Women's Rights Claims Concerning Wives' Household Labor, 1850–1880,” Yale Law Journal 103 (1994): 1073–1218. Joseph Story grouped women along with “infants and lunatics” as individuals entitled to protection by equity courts. Story, Commentaries on Equity Jurisprudence, rev. ed. (Boston, 1839), 2:654–55.
114 Fox, “Law of Many Faces,” 102, asserts, “Even at its best, equity was another source of paternalism which, in its protection for women, ultimately reinforced women's legal subordination.”
115 Shaw, William B., “Social and Economic Legislation of the States in 1891,” Quarterly Journal of Economics 6 (Jan. 1892): 227–42.
116 In Kettering v. Imperial Coal Co., 32 Pitts. L.J. 359 (1885), the lower court held that despite doubts about the merits of the law, the “payment of wages in store orders was illegal.” In Row v. Haddock, 3 Kulp 501 (1885), the lower court ruled in favor of the coal company because the worker had already received his wages in kind. This case did not challenge the constitutionality of the law as a whole.
117 Godcharles, 431.
118 Pennsylvania Constitutional Debates (Harrisburg, 1873), 2:590; Godcharles, 435.
119 Godcharles, 437.
121 The highly individualized and formalized legal rules of workingmen's employment contracts that such rulings put in place effectively negated the application of equity principles to equalize employer-employee bargaining power. By the last decade of the nineteenth century, courts' equitable powers were generally deployed against laborers in the form of injunctive relief to end labor strikes. For this reason, labor unions and workers began to assail equity and especially judges who issued injunctions without juries, which may have been more sympathetic to the interests of labor. Liberty of contract belonged to laborers as individuals but not to incorporated entities. Hovenkamp describes the result: “Collective bargaining agreements were never given the kind of preferred constitutional treatment accorded to other corporate contracts. … Although the bare right to strike was eventually accorded constitutional protection, it was a right that had to be exercised within the strictest non-coercive limits.” Hovenkamp, Enterprise and American Law, 235.
122 The term “substantive due process” originated in the 1930s to describe (and usually denigrate) legal rulings that struck down labor laws as distended police powers. Mayer, David N., “Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract,” Mercer Law Review 60 (2009): 563–658, esp. 586; G. White, Edward, “Revisiting Substantive Due Process and Holmes's Lochner Dissent,” Brooklyn Law Review 63 (1997): 87–128, esp. 88–89.
123 Millet v. People, 7 N.E. 631 (1886), 636.
124 Ibid., 633.
125 Ibid. In 1891, the Illinois legislature responded to the Millet ruling with a law that forbade the ownership of company stores by any mining or manufacturing company. The following year the state supreme court struck that down as well. Frorer v. People, 141 Ill. 171 (1892). See also: “Constitutional Law—Anti-Truck Law,” The Albany Law Journal: A Weekly Record of the Law and the Lawyers 46 (Jul. 30, 1892): 87–91.
126 Millet, 634.
127 State v. Goodwill; State v. Minor, 33 W. Va. 179 (1889). The two cases were combined, given their similarities. The court ruled that the statute “was a paternalistic law of the most objectionable character because it assumed that the employer was a knave and the laborer an imbecile.” Judson, Frederick N., “Liberty of Contract Under the Police Power,” American Law Review 25 (Nov/Dec. 1891): 893, explained, “The legislature cannot limit or forbid the right of contract between parties under no mental, corporal or other disability when the subject of contract is lawful, not public in its character, and the exercise of it is purely private and personal between the persons themselves.” In that same year, the West Virginia supreme court struck down a law that prohibited the increase in prices in company stores, a tactic that the Pennsylvanian legislature had also considered. State v. Fire Creek Coal & Coke Co., 33 W. Va. 188 (1889). See Labatt, C. B., “State Regulation of the Contract of Employment,” American Law Review 27 (Nov./ Dec., 1893): 857–75.
128 Adkins v. Children's Hospital, 261 U.S. 525 (1923). The Court struck down a women's minimum wage law in Washington, D.C.
129 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). The Court upheld a state minimum wage law, overturning the Adkins precedent. West Coast Hotel is usually regarded as ending the Lochner era.
130 Roscoe Pound, “The Decadence of Equity,” Columbia Law Review 5 (Jan. 1905): 20–35, argues that the formalization of equity principles in case law combined with the nineteenth-century ideal of uniform and general laws led to the decline of equity as a rival jurisdiction to common law. “But in becoming law a principle of equity loses its quality of elasticity. … The very thing that made equity a system must in the end prove fatal to it. In the very act of becoming a system, it becomes legalized, and in becoming merely a competing system of law insures its ultimate downfall” (24–25).
131 Dodrill, Gordon, 20,000 Coal Company Stores in the United States, Mexico and Canada (Pittsburgh, 1971).
132 Ernst, Lawyers Against Labor, 2.
1 The author would like to thank Charles W. McCurdy and Brian Balogh for their encouragement and support through several drafts of this essay. Michael Holt, Rachel Shapiro Shelden, Jaime Smith, David Hill, Logan Sawyer, Alex Gourevitch, and Andrew Meade McGee provided insightful questions and comments on earlier drafts. Archivists at the Pennsylvania State Archives and the Pennsylvania State Library, both in Harrisburg, PA, provided indispensable assistance. The original case files were not located. Two anonymous readers for the Journal for the Gilded Age and Progressive Era provided enormously helpful feedback.
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