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will accomplish its purpose, viz, the suppression of child labor, without entailing unnecessary burdens on the producing and transporting industries of the country.
The tax method has advantages from the point of view of enforcement because of the existence of administrative organizations in the Internal Revenue Department for the levying and collecting of the tax. The chief objections to it are: (1) That the tax might be paid and the children employed, whereupon the tax would simply become a license to employ child labor; and (2) that all such legislation may yet be subjected to the scrutiny of the Supreme Court as to whether a law, which, while calling itself a tax measure, nevertheless, by reason of the tax, destroys the thing or condition taxed, thereby preventing the possibility of revenue accruing under its terms, is in reality a tax measure. Moreover, even though such a law is held to be an exercise of the taxing power, the question arises whether it is not subject to the due-process clause of the fifth amendment. It is true the Supreme Court has upheld the oleomargarine tax and Congress has not hesitated to pass the phosphorous-match tax and the cotton-futures tax, both of which were really aimed at regulation which Congress had no power to accomplish directly. But the prohibition of child labor by taxing it out of existence involves at least as great difficulty from the point of view of constitutionality as does prohibition of interstate commerce in the products of child labor, and in addition it involves the possibility of Federal license of the use of child labor by persons who may find it profitable to pay the tax.
The committee has determined that on the whole it is not desirable to at. tempt to accomplish its purpose by the use of the taxing power.
The prohibition of the use of the mails is similar to the prohibition of the use of the channels of interstate commerce. It is, however, of more doubtful constitutionality and has the disadvantage of never having been used in practice. Furthermore, it is believed that it would not be the most effective method of reaching the desired end. It was, therefore, not deemed advisable to sug. gest it for the present purpose.
When it was decided to found the present legislation on the commerce clause in the Federal Constitution there arose serious questions as to the details of the necessary legislative and administrative scheme. Such legislation may take one of several distinct forms or may involve a combination of any or all of these forms. For example, it may: (1) Prohibit the shipment by producers or dealers of specified goods in interstate commerce; (2) prohibit the receipt and interstate delivery by dealers of specified goods still in the original package which have been shipped to such dealers in interstate commerce; (3) prohibit the transportation by carriers of specified goods in interstate commerce.
Each of these forms is subject to the further possibility that the goods which are excluded from interstate commerce may be: (1) The product of child labor ; or (2) the product of plants or establishments in which child labor is employed (a) when the goods were originally shipped from the plant, (b) within a specified time prior to such shipment, or (c) at the time the goods were manufactured or produced.
It was early decided by the national child-labor committee not to undertake to prohibit the transportation of goods; that is, not to put a liability on the carrier to refrain from transporting in interstate commerce goods produced in child-labor plants. Such a prohibition would probably be one of the most effective ways of enforcing the prohibition of shipment. The meat-inspection act is generally recognized as the best example of efficient enforcement of regulatory laws, and that act is enforced by the refusal of the carrier to accept for transportation of any meat products unless they are certified as inspected and passed. It seems, however, almost impossible to apply this device to the shipment of the products of child labor. To provide that the carrier is liable, although innocent of the nature of the article shipped, is so unjust as to be out of the question. In all of the Federal acts prohibiting transportation by the carrier only four (the meat-inspection act, the cattle-quarantine act, the renovated-butter act, and the prize-fight film act) make the carrier liable in the absence of knowledge.
In all of those cases the practice of the department is not to prosecute the carrier, whose cooperation has in most instances been secured largely on account of the highly centralized nature of the producer's business. It is hardly likely that the carriers would extend the same cooperation in the case of the child-labor bill which, it must be remembered, applies to every industry in the
country. The interstate carriers of the country would probably object to this great extension of the policy of requiring them to do police or inspection duty for the Government. The food and drugs act contains no prohibition of transportation by the carrier, although such a provision would be, in the opinion of the officers of the department, a great aid in the enforcement of the law. But in that case, as in the case of child-labor products, the carrier has no means of telling whether the article offered for shipment is within the pro-hibition of the law, and it may well be that for this reason Congress did not in the food and drugs act impose any penalty on the carrier. To put the. scheme into effect without injustice to the carrier would involve either a system of marking the articles shipped, which seems out of the question, for no carrier could take the time to examine each package presented to it for trans-, portation, or a system of certificates or affidavits from the shipper. The clerical labor imposed on the carrier by such a system would seem to make it im-, possible of successful application.
The national child-labor committee, therefore, decided to put on the shipper and the dealer the whole duty of compliance with the proposed Federal law, and therefore decided to prohibit shipment in interstate commerce of goods produced by child labor contrary to prescribed standards.
In framing the substantive provisions of the bill the committee has carefully selected from the many alternative possibilities those which gave greatest hope of a favorable constitutional decision, effective enforcement without unnecessary hardship, and the likelihood of reducing to a minimum the reasonable objections to its enactment by Congress. This will appear from the following explanation of the essential provisions of the pending bill :
· A. Shipment by “ manufacturer, producer, or dealer" alone affected. The committee has deliberately limited the classes of persons who are prohibited from shipping to “manufacturers, producers, or dealers.". This was substituted for the general language of the Palmer-Owen bill, viz, “ It shall be unlawful to ship,” because the latter, unless limited, might work great hardship and injustice to innocent individuals shipping goods in interstate commerce in small quantities, e. g., the sender of a Christmas present. It is necessary to include dealers, for otherwise the act could be evaded by the manufacturer selling only to a jobber within the State, or by the creation of a dummy corporation within, the State to handle the entire output of the factory. The apparent hardship to dealers who have no knowledge of the conditions in the factory in which the goods originated is obviated by the guarantee provision in the bill, which is discussed later.
. B. Prohibition limited to interstate commerce.—The bill does not prohibit employment of children; it does not prohibit mining or manufacturing by the use of child labor; it does not prevent the sale or other use within the State of the products of such child labor ; but it does prohibit the shipment of such products to other States. It simply withdraws from the employer of child labor those instrumentalities for the distribution of the products of child labor , which are under the control of the Federal Government. If manufacturers and mine owners insist on employing young children they are simply required by the bill to confine their markets of the labor of such children to their own States.
C. Description of articles shipment of which in interstate commerce is pro-, hibited.-The possible alternatives from which selection was made are: (1) Goods produced by child labor; (2) goods produced while child labor was employed in the plant; and (3) goods produced by a plant in which child labor was employed at a specified time or period.
The most difficult problem in connection with the administrative detail of the act is as to the articles which are to be excluded from shipment in interstate commerce. The Palmer-Owen bill as reported by the House committee last year prohibited the shipment of the products of child labor, Our objection to this was that it would not be responsive to the purposes of the National Child Labor Committee, the desire of which is to prohibit the use of child labor, whether in the actual processes of manufacture or not. In the meat-packing plants there are boys who do nothing but open and close heavy doors all day long. Children are likewise employed to clean up rubbish, carry tools, shovel coal, drive mule teams in mines and quarries, and carry lamps or dynamite, and this work might not be held to constitute a part in the production of goods. Moreover, this language in the Palmer-Owen bill makes enforcement more
difficult. In order to secure a conviction it would be necessary to prove, first, that the child had participated in the production of a certain article, and, second, that that identical article had been shipped in interstate commerce; or, if the prosecution is on the false guarantee, that the guarantee was false as to the particular article shipped. In other words, that the particular article shipped was produced by child labor.
The difficulties in the way of this proof might, of course, be overcome by sufficient force of inspectors and the cooperation of various Federal agencies, State officials, employees, and others coming into possession of evidence of violation of the act. In many cases detailed records kept by the manufacturer of the exact time of the manufacture of goods made by him, of the persons who performed labor upon them, and of the time when and the persons to whom they were shipped might furnish some of the details requisite to establish a case against a person charged with violation of the act. In an endeavor to reduce the difficulties of proof of violation and make more likely successful prosecutions against persons violating the act and thereby inspiring obedience to the provisions of the act even on the part of those opposed to it, the committee considered the possibilities of varying the provisions of the Palmer-Owen bill, describing the goods whose shipment is prohibited. It has been suggested that instead of the language of the Palmer-Owen bill, the prohibition of shipment might be of goods from a factory where during the time of production child labor is used. This would seem to be but little easier of enforcement than the Palmer-Owen bill, for it would be necessary to prove that the particular goods shipped in interstate commerce were made at the time when child labor was being used. The difficulty of proof might be less if “ production” were understood or defined to mean the time of completion of the production and the turning over of the product to commerce. On the whole, it was decided that to change the Palmer-Owen bill to this effect would not materially affect its enforceability and therefore would serve no useful purpose.
D. Presumptive evidence of violation. The bill provides that the presence in a mine or factory of a child under the ages specified or beyond the hours specified or for'a period longer than that specified, within 60 days prior to the shipment of a particular product from such mine or factory, shall constitute prima facie evidence that such product was produced in whole or in part by the labor of such child. The purpose of this provision is, of course, to reduce the difficulties of proof in a criminal proceeding to impose the penalty provided for violation of the act.
The act forbids shipment in interstate commerce of the products of the labor of children. Violation of the act is punishable as a criminal offense. The act is aimed particularly at those employers who will not relinquish the opportunity to employ children unless they are made to do so. Such employers will not obey this or any other child-labor act unless there is a real prospect that viola. tion of the act will result in punishment. In other words, we could not hope for much from an unenforceable act; and to the extent that the act is made difficult of enforcement some employers in some parts of the country might risk violating its provisions in the expectation that it would be impossible for the public authorities to prove the violation and impose punishment therefor.
It is unquestionably difficult to prove in a criminal proceeding that the particular shipment of goods was produced in whole or in part by the labor of children. To secure a conviction it would be necessary to prove beyond a reasonable doubt that children were employed in a factory, and that they had con.tributed at least in part to the production of particular goods which were later shipped in interstate commerce. The purpose and effect of the prima facie clause is this: When the prosecuting attorney has proved that children were in the factory within a short time prior to the shipment of particular goods, it will then be incumbent on the owners of the factory to show that the child had no part in the production of those goods. The essential question involved in determining whether there has been a violation of the act is, “ Did a child have a part in the production of goods later shipped in interstate commerce?” TO require the prosecuting attorney to prove that the child had such part in the production of the goods makes proof of violation so difficult as to render convictions almost impossible even where the children have produced the goods in question. This prima facie clause simply makes the employer prove that the products of his factory were not produced by children. This is no hardship on him. If he wants to have children in his plant; if, for example, he insists on employing children to manufacture goods for intrastate trade, then let him keep
records and produce them in court when necessary to prove that children did not work on goods shipped in interstate commerce. This prima facie clause merely removes a burdensome difficulty of proof which might interfere with the proper enforcement of the act and puts it where it belongs on the employer, who, if he has children about his factory, may reasonably be asked to prove, when called upon, that those children did not in any measure produce goods later shipped in interstate commerce.
E. Protection afforded to dealer by manufacturer's or producer's guaranty.The dealer is relieved from liability if he can establish a guaranty from the manufacturer or the person who has sold the goods to him that child labor has not been used in violation of the act, and the guarantor is subjected to the same liabilities that would have been imposed on the dealer. In the absence of such a guaranty the act would be so unjust to the dealer as probably to render it unconstitutional and at least shocking to the sense of the community, for the dealer in ninety-nine cases out of a hundred could have no knowledge as to whether or not child labor was used in the factory from which the goods came. The provision found in the food and drugs act and retained in the Keating-Owen bill, that the guarantor is liable to the penalties to which the dealer is subject, was declared constitutional in the district court.
F. Bill applies only to articles manufactured or produced in United States.The bill limits the prohibition of shipment to articles produced in the United States. This is necessary, as the bill contains no prohibition of the importation of the products of child labor. If such importation is not forbidden there would seem to be no reason for prohibiting the shipment in interstate commerce of such products. If importation should be prohibited, the Treasury Department would probably administer the law in the same manner as the prohibition of importation of moving-picture films which bear a false notice of copyright or which are piratical copies. The practice in such cases is to hold up the importation only when some person appears and claims that the importation is in violation of law and puts up a bond to cover the loss to the importer in case the goods are finally determined to be entitled to entry.
In this as in many other fields of remedial legislation it is not difficult to devise and formulate an ideal scheme. Ideal schemes, however, are seldom enacted into law. Conflicting interests and practical difficulties result in compromises. In this particular bill an ideal scheme from the point of view of effective enforcement would probably increase the risk of an adverse decision on its constitutionality
An effort has been made in the formulation of the Keating-Owen bill to adjust the conflicting difficulties of effective enforcement and constitutionality. We believe that the bill as introduced by Congressman Keating, on January 7 of this year, is constitutional and is enforceable and, moreover, imposes no hardship on the employer who honestly endeavors to comply with its provisions. It is not perfect, but it must be remembered that “laws are born full grown about as often as men are.”
This bill recognizes the importance of more detail rules and regulations to carry out its purposes, and it authorizes the Attorney General, the Secretary of Commerce, and the Secretary of Labor, acting as a board, to make such rules and regulations. The standards in the bill are right. If it is enacted it will stand as a declaration by Congress that goods manufactured under circumstances which fall short of those standards shall not be shipped in interstate commerce. It remains for this administrative board to fill in the details and to frame practical and definite rules and regulations which will give effect to the congressional enactment. If the work of this board is to be effective there is large opportunity for contribution to it by the friends of this measure.
This is a memorandum prepared by Mr. Beaman and Mr. Thompson in the legislative reference library at Washington concerning the constitutionality of various prima facie provisions in Federal and State statutes. This memorandum is complete in so far as a dicussion of the validity of such statutes is concerned. I have supplemented their memorandum with several instances of cases where the Federal Congress has seen fit to make possession of articles, or an act on the part of a person, prima facie evidence of guilt. The New York
labor law, chapter 77, which I have quoted in the memorandum of laws, is also very important and directly in point as regards the validity of these prima facie provisions. In a separate memorandum I have attempted to bring out the distinction between a clause providing for prima facie evidence and the shifting of the burden of proof in criminal cases. It is undoubtedly a settled rule in evidence that prima facie provisions do not shift the burden of proof, which always remains on the party putting in the last affirmative defense; but it does shift the burden of going forward with the evidence, and consequently compels the accused in this case to bring in more evidence in order to rebut the prima facie provision. This has no effect upon the question of proof beyond a reasonable doubt.
T. I. PARKINSON.
PRIMA FACIE EVIDENCE-CONSTITUTIONALITY. The acts of February 9, 1909, and January 17, 1914, made the possession of opium prima facie evidence of violation of law. With respect to these statutes the court said:
“These statutes provide for presumptions or prima facie proof of the offense which, while sufficient to sustain a verdict of guilty, may or may not be sufficient to satisfy the jury of the guilt of the accused beyond a reasonable doubt. They are but what are commonly styled rules of evidence and not substantive law creating offenses, and do not deprive the jury of its function of weighing evidence and determining facts. Though the accused presents no evidence, the circumstances inevitably appearing in the prosecution's evidence may often be such that the jury will and should refuse to draw the inferences these statutes authorize, but do not and probably could not command, in that it is not satisfied they should be drawn—not convinced that the accused is guilty beyond a reasonable doubt. Like presumptions are familiar to common and statutory law in England and this country, in the former prior to emigration of our ancestry and now. So, too, to civil law. They dictate the burden of evidence as public policy may require. Conforming to ancient procedure, when not prohibited by constitutions, legislative bodies have power to create them, and in their application is 'due process of law,' provided there is rational connection between the facts proved and the facts therefrom inferred, that the inferences are not so unreasonable as to be mere arbitrary mandates and that the party affected is free to oppose them. See Luria v. U. S., 231 U. S., 25; 34 Sup. Ct. 10; 58 L. Ed., 101, and cases cited. For other cases see State v. Potello, 40 Utah, 56; 119 Pac., 1027.
“The presumptions here involved, though beyond any in revenue laws or elsewhere brought to the attention of the court, appear to come within the limits of legislative power. Doubtless they go far to prevent possession, use, and intrastate traffic in opium, which are subject only to State police power; but this is only incidental to regulation of foreign commerce, over which Congress has exclusive authority.” (U. S. v. Yee Fing, 222 Fed. Rep., 154-156.)
Each State possesses the general power to prescribe the evidence which shall be received and the effect which shall be given to it in her own courts and may exert this power by providing that proof of a particular fact, or of several taken collectively, shall be prima facie evidence of another fact. Many such exertions of this power are shown in the legislation of the several States, and their validity as against the present objection has been uniformly recognized save where they have been found to be merely arbitrary mandates or to discriminate invidiously between different persons in substantially the same situation. Bailey v. Alabama, 219 U. S., 218, 238; Board of Commissioners v. Merchant, 103 N. Y., 143, 148. The validity of such a statute was brought in ques. tion in the recent case of Mobile, etc., Railroad Co. v. Turnipseed, 219 U, S., 35, 43, and it was there said by the court:
“That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. If a legislative provision, not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases,