;,:, , ' r,'., ; .',.... CORNELL UNIVERSITY LIBRARY 3 1924 092 403 769 ILR HD 4919 .07 A5 1914 GORNELL ilr LIBRARY Martin P. C School of Ind Iatherwo< ustrial and La 3d Library )or Relations Minimum Wage Cases Supreme Court of tbe Tflntteb States OCTOBEE TERM, 1914. ^ \ No. 507. Frank C. Stettler, Plaintiff m Error, vs. Edwin V. O'Hara, Bertha Moores and Amedee M. Smith, CONSTITUTING THE INDUSTRIAL WELFARE COMMISSION OF THE State of Oregon, Defendants in Error. No. 508. Elmira Simpson, Plaintiff in Error, vs. Edwin V. O'Hara, Bertha Moores and Amedee M. Smith, constituting the Industrial Welfare Commission of the State of Oregon, Defendants in Error. IN ERROR TO THE SUPREME COURT OF OREGON Brief ano argument for plaintiffs in Error Rome G. Brow n, Minneapolis, "Wmnesotu, Attorney for Plaintiffs ik. Erf or. Review Publishing Company, Minneapolis The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924092403769 Synopsis ant> flnfcej Page Statement of Case 2 Statement of Facts 3 summary of oregon statute and proceedings under it . 3 complaint in stettler case 7 complaint in simpson case 9 the decisions herein of the state supreme court 10 The Stettler Decision 12 The Simpson Decision 14 Assignments and Specifications of Error 14 ARGUMENT I. The Federal Question Involved 19 II. A Legislative Compulsory Minimum Wage in Pri- vate Employment is not within the Police Pow- er of a State to Enact and is Therefore Repug- nant to the XI Vth Amendment 21 decisions as to employes engaged in public work 24 Atlcin v. Kansas, 191 TJ. S. 207 24 Malette v. City of Spokane, 77 Wash. 205 25 decisions as to hours in exceptionally unhealthful or hazardous occupations 26 Holden v. Hardy, 169 U. S. 366 26 the new york bakery shop case — Lochner v. New York, 198 U. S. 45 28 Dissenting Opinion in LooUner v. New York 31 THE OREGON CASE — WOMEN IN LAUNDRIES 34 Mutter v. Oregon, 208 U. S. 412 36 Supreme Court of tbe Xflniteb States OCTOBER TERM, 1914. No. 507. Frank C. Stettler, Plaintiff in Error, vs. Edwin V. O'Hara, Bertha Moores and Amedee M. Smith, CONSTITUTING THE INDUSTRIAL WELFARE COMMISSION OF THE State of Oregon, Defendants in Error. No. 508. Elmira Simpson, Plaintiff in Error, vs. Edwin V. 0'Hara>, Bertha Moores and Amedee M. Smith, constituting the Industrial Welfare Commission of the State of Oregon, Defendants in Error. IN ERROR TO THE SUPREME COURT OF OREGON Brief ano argument for plaintiffs in Error Statement of Case These two cases have, by order of this court, been advanced and set to be heard together. The issues involved are similar, and the two cases will in this brief be discussed as one case. The points of difference will be noted by referring to No. 507, the employer case, as the "Stettler" case and to No. 508, the em- ploye case, as the "Simpson" case. In making references to the Transcript of Record, references to the record in 507 will be made by the term "Stettler Record" and in 508 by the term "Simpson Record." In the "Appendix" to this brief is repro- duced for convenience, (1) the provisions of the Constitution of the State of Oregon to which reference is made, (2) the Oregon Minimum Wage Statute here in question, (3) the opinion of the Supreme Court of Oregon in the Stettler case, and (4) the opinion of that court in the Simpson case. These cases come to this court upon writs of error to the Su- preme Court of the State of Oregon for review of the final judgments of the highest court of that state in these cases, in both of which the validity of the Oregon Minimum Wage Stat- ute is drawn in question on the ground of repugnance to the Constitution of the United States, and in which the judgments here in question are in favor of the validity of that State Stat- ute. The Stettler case (No. 507) is a suit by an employer to enjoin the enforcement of the Statute. The Simpson case (No. 508) is by an employe for the same purpose. In both cases all the facts which are the basis of the decisions complained of, in- cluding the federal questions raised by the plaintiffs in error, are set forth in the complaints. The suits were instituted and first decided in the Circuit Court of the State of Oregon for Multnomah County, upon demurrers to the complaints. In the Stettler case an amended complaint was filed on November 5th, 1913 (Stettler Record, p. 5), and was heard upon the de- murrer filed to the original complaint on October 25th, 1913 but which demurrer was by stipulation of November (?th, 1913, made as the demurrer to the amended complaint (Stettler Rec- ord, pp. 11-12 ) . On hearing on demurrer in the Circuit Court the demurrer to the amended complaint was sustained. The plaintiff refused to plead over and stood upon his amended complaint; whereupon judgment of dismissal upon the merits was rendered and entered in that court (Stettler Record, pp. 12- 13). From that judgment plaintiff appealed to the State Su- preme Court; where final judgment was entered on March 17, 1914, affirming the judgment below (Stettler Record, pp. 25- 26) . Thereupon the plaintiff in error brought the case here for review of that final judgment, upon writ of error (Stettler Rec- ord, pp. 26-33 ) . In the Simpson case ( No. 508 ) , the complaint was filed in the same court on April 15, 1914, and demurrer was filed thereto on April 15th, 1914; and on the same day there was entered in that court a decree sustaining the demurrer and plaintiff re- fused to plead over and stood upon her complaint ; whereupon judgment was entered, dismissing the case upon the merits (Simpson Record, pp. 5-12) . Upon appeal to the State Supreme Court that court entered final judgment on April 28th, 1914, af- firming the judgment below (Simpson Record, pages 15-16). Upon writ of error that final judgment is here for review (Simp- son Record, pp. 16-22). Statement of Facts The complaints state all the facts which are to be considered and they specially set up and raise the federal questions relied upon. An outline of these facts and the questions raised is next given, as presented in each case. As each complaint raises the question of the constitutionality of the Oregon Minimum Wage Statute (Chap. 62, Ore. Stat. 1913, see Appendix II ) , in connection with the same orders and proceedings under that Statute, a summary of the essential provisions of that Statute is next given. SUMMARY OF OREGON MINIMUM WAGE STATUTE AND PROCEEDINGS UNDER IT After the title and whereas clause asserting that the purpose of the Statute is to protect the "health and morals of women and minor workers," it provides : "Section 1. It shall be unlawful to employ women or mi- nors in any occupation within the State of Oregon for un- reasonably long hours; and it shall be unlawful to employ women or minors in any occupation within the State of Oregon under such surroundings or conditions — sanitary or otherwise — as may be detrimental to their health or mor- als; and it shall be unlawful to employ women in any occu- pation within the State of Oregon for wages which are inadequate to supply the necessary cost of living and to maintain them in health; and it shall be unlawful to em- ploy minors in any occupation within the State of Oregon for unreasonably low wages." Section 2 establishes and provides for the appointment of the members of the "Industrial Welfare Commission," composed of three members appointed by the Governor. Section 3 provides for the organization of that Commission. Section 4 provides : "Section 4. Said Commission is hereby authorized, and empowered to ascertain and declare, in the manner herein- after provided, the following things: (a) Standards of hours of employment for women or for minors and what are unreasonably long hours for women or for minors in any occupation within the State of Oregon; (b) Standards of conditions of labor for women or for minors in any occu- pation within the State of Oregon and what surroundings or conditions — sanitary or otherwise — are detrimental to the health or morals of women or of minors in any such occupation; (c) Standards of minimum wages for women in any occupation within the State of Oregon and what wages are inadequate to supply the necessary cost of liv- ing to any such women workers and to maintain them in good health ; and ( d ) Standards of minimum wages for mi- nors in any occupation within the State of Oregon and what wages are unreasonably low for any such minor workers." Sections 5, 6 and 7 give the Commission certain inquisitorial powers. Section 8 provides for the appointment by the Com- mission of a Conference to investigate and report and make recommendations as to women workers in any particular occu- pation, which conference is to be composed of nine members and "Such Conference shall, in its report, make recommenda- tions on any or all of the following questions concerning the particular occupation under inquiry, to-wit: (a) Stand- ards of hours of employment for women workers and what are unreasonably long hours of employment for women workers; (b) Standards of conditions of labor for women workers and what surroundings or conditions — sanitary or otherwise — are detrimental to the health or morals of wom- en workers; (c) Standards of minimum wages for women workers and what wages are inadequate to supply the nec- essary cost of living to women workers and maintain them in health.'' Section 9 empowers the Commission to "Make and render such an order as may be proper or necessary to adopt such recommendations and carry the same into effect and require all employers in the occupa- tion affected thereby to observe and comply with such rec- ommendations and said order. Said order shall become effective in sixty days after it is made and rendered and shall be in full force and effect on and after the sixtieth day following its making and rendition." And in the same section the preliminary penalty provision is as follows : "After said order becomes effective and while it is ef- fective, it shall be unlawful for any employer to violate or disregard any of the terms or provisions of said order or to employ any woman worker in any occupation covered by said order for longer hours or under different surround- ings or conditions or at lower wages than are authorized or permitted by said order." Section 10 provides for special licenses for defective and crippled women. Section 11 gives the Commission power to promulgate orders affecting minors, without intervention of a Conference. Section 12 is as follows : "Section 12. The word 'occupation' as used in this Act shall be so construed as to include any and every vocation and pursuit and trade and industry. Any Conference may make a separate inquiry into and report on any branch of any occupation; and said Commission may make a separate order affecting any branch of any occupation. Any Con- ference may make different recommendations and said Com- mission may make different orders for the same occupation in different localities in the State when, in the judgment of such Conference or said Commission, different conditions in different localities justify such different recommenda- tions or different orders." Sections 13 to 15 impose duties of enforcement on the Com- mission and investigations for that purpose. Section 16 limits the right of appeal to questions of law. Sections 17 to 19 are the penalty clauses as follows : "Section 17. Any person who violates any of the fore- going provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be pun- ished by a fine of not less than twenty-five ($25.00) dollars nor more than one hundred ($100.00) dollars or by im- prisonment in the county jail for not less than ten days nor more than three months or by both such fine and imprison- ment in the discretion of the court. Section 18. Any employer who discharges or in any other manner discriminates against any employee because such employee has testified, or is about to testify, or be- cause such employer believes that said employee may testi- fy, in any investigation or proceedings under or relative to this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five (.$25.00) dollars nor more than one hundred ($100.00) dollars. Section 19. If any woman worker shall be paid by her employer less than the minimum wage to which she is en- titled under or by virtue of an order of said Commission, she may recover in a civil action the full amount of her said minimum wage less any amount actually paid to her by said employer, together with such attorneys fees as may be allowed by the court; and any agreement by her to work for less than such minimum wage shall be no defense to such action." The defendants were appointed as Commissioners constitut- ing the "Industrial Welfare Commission" and organized with Caroline J. Gleason, Secretary. That Commission appointed a Conference "on wages, hours and conditions of work in manu- facturing establishments in Portland, in the State of Oregon," which Conference in July, 1913, made a report to said Commis- sion recommending: "1. The establishment of a standard minimum wage of $8.64 per week for women workers in manufacturing establishments of Portland, any lesser amount being in- adequate to supply the necessary cost of living to women workers and to maintain them in health. 2. That the daily hours of work be limited to nine (9) per day or fifty- four (54) hours a week. 3. That the length of the lunch period be not less than three-fourths of an hour." Thereafter, on September 10th, 1913, the Commission adopt- ed the recommendations of that Conference and entered an or- der, which order was as follows : "No person, firm, corporation or association owning or operating any manufacturing establishment in the City of Portland, Oregon, shall employ any woman in said es- tablishment for more than nine hours a day or fifty-four hours a week; or fix, allow or permit for any woman em- ployee in said establishment a noon lunch period of less than forty-five minutes in length; or employ any experi- enced, adult woman worker, paid by time rates of payment, in said establishment at a weekly wage of less than $8.64. any lesser amount being hereby declared inadequate to sup- ply the necessary cost of living to such women factory workers, and to maintain them in good health." Stettler Record, pp. 6-8 ; Simpson Record, pp. 6-8. With these facts common to the complaints in both cases, the further allegations of the complaint are respectively as follows : COMPLAINT IN STETTLER CASE The Stettler complaint alleges that plaintiff is a citizen of the United States and owns and operates in the city of Portland, a manufacturing establishment for the manufacture and sale of paper boxes, in the conduct of which business he employs ex- perienced adult women for wages at agreed rates (Stettler Record, p. 5). That the Conference referred to was appointed to consider only the wages, hours, etc., in manufacturing es- tablishments in Portland, and not elsewhere, and did not make any other investigation and that no Conference had been ap- pointed and no order had been made by said Commission estab- lishing a minimum wage or maximum hours other than the one in this case, except one as to mercantile establishments in Port- land, in accordance with which an order had been made on September 22nd, 1913, although there are within the State of Oregon, both inside and outside the City of Portland, many manufacturing establishments and other industries wherein women are employed (Stettler Record, p. 8) ; that of the 42 adult, experienced women employed by plaintiff, some he pays more than $8.64 per week and some he pays less, paying in each instance pursuant to agreement, but that if he is required to pay all not less than $8.64 each per week, his expenses will be such as to change his business from a profitable one to a one conduct- ed at a loss; that he will suffer by competition of manufac- turers in other States and localities who pay less wages than fixed in the order of the Commission ; and that if he is made sub- ject to the Commission's order he will have to advance the price of his product so as to render it impossible for him to market the same as against prices at which other similar manufacturers sell who are not subject to such wage regulation (Stettler Kec- ord, pp. 48-9) . That he cannot pay his women employes the mini- mum wage ordered without depriving him of all profits and therefore without the enforcement of the order constituting a confiscation of his property; further that he has expended a large amount of money and time in building up a business and good will, but if the order in question shall be enforced, he will be compelled to abandon his business without compensation or to conduct the same without profit or interest on his invest- ment; that the lowest wage for women, not apprentices, in his factory is $6 per week ; that those who receive less than $8.64 per week are incompetent to earn greater wages and that those receiving less, receive adequate compensation for services ren- dered and that none receive an unreasonably low wage; that many of his women employes receiving less than $8.64 are re- ceiving other sources of income and desire and expect only to make a portion of their support, and are capable of making only a portion of their support from their employment with plaintiff ; and that if the order be enforced plaintiff .will be re- stricted to the employment only of women capable of perform- ing labor sufficient to earn the fixed minimum wage and that less competent employes will be prevented from laboring for plaintiff (Stettler Record, pp. 9-10). The complaint (p. 10) also states : "That the said work in plaintiff's said factory is light and healthful and said women now employed as aforesaid who are earning less than $8.64 per week are willino- to work for the plaintiff at said labor for the wages now paid and they do not nor do any of them earn any greater wages than they are paid as aforesaid, and the plaintiff cannot conduct said business with any profit to himself or make or earn an amount sufficient to compensate him for the capital invested therein and pay said less competent women $8.64 per week or any greater sum or wages than he is now pay- ing them, for plaintiff avers that said less competent em- ployes are unable to earn said $8.64 or any greater sum or wages than they are being paid as aforesaid." The complaint specifically draws in question the constitu- tionality of the State Statute on the ground of its repugnance to the Federal Constitution, specifying the particular points which were passed upon by the State Supreme Court and which are here for review ( Stettler Record, p. 9 ) . COMPLAINT IN SIMPSON CASE In the Simpson case, in addition to the setting forth of the Oregon Statute, the organization of the Commission, the pro- ceedings and orders under it, which are stated substantially the same as in the Stettler case, the complaint alleges : That plaintiff is a woman over twenty-two years of age, a citi- zen of the United States, residing in Portland, Oregon; that the business of her employer, Stettler, is as stated in the Stet- tler complaint ; that plaintiff is an adult woman, experienced in the work of Stettler's factory and is now and for over three and a half years has been employed by Stettler therein at such wages as from time to time have been agreed upon between her and Stettler, and that thereby she has been and is now earning her living, working therein nine hours per day for $8 per week and is paid by time rates of payment (Simpson Record, pp. 5-6) ; that no orders fixing wages or hours have been made or attempted by said Commission excepting the two already speci- fied as to any occupation in any calling, business or industry in said state, either in the City of Portland or otherwise, al- though there are numerous manufacturing establishments and other industries in said state, both within and outside of the said City of Portland wherein women are employed by time rates of payment at a weekly wage of less than $8.64 (Simp- son Record, pp. 8-9). The complaint (p. 9) then alleges: "That the wages which this plaintiff is receiving as afore- said, are the best wages and compensation for her labor that she is able to receive for any employment or labor which she is capable of performing, and if said order shall 10 be enforced the plaintiff will be deprived of her said em- ployment and wages. That plaintiff has no other trade or occupation, and has no means of earning her living other than by the pursuit of her said occupation in said, or in a similar, manufacturing establishment. That the work in said manufacturing establishment in which plaintiff is engaged is light and healthful, and said establishment and the place where she is employed is clean and healthful and the moral atmosphere, surroundings and conditions where she is employed are good. That by said employment plain- tiff lives and maintains herself in health and comfort. That plaintiff is employed in said establishment at the wages which she is being paid as aforesaid, pursuant to an agreement between the plaintiff and the said Stettler." The Simpson complaint further alleges that unless restrained, the Commission will threaten and will prosecute Stettler, her employer, and that by reason thereof she will lose her said em- ployment and be deprived thereof and of her means of earning a living ; whereas, if said Statute and order of the Commission are not enforced, she will be retained in said employment at her present wages, which she is desirous of doing, and will be able to continue to earn her living if permitted to do so (Simp- son Eecord, pp. 9-10 ) . The Simpson complaint also draws in question the validity of the State Statute on the ground of its repugnance to the Federal Constitution and specifies the points of such repug- nance as applied in this case, which points were considered and passed upon by the State Supreme Court and are here for re- view (Simpson Eecord, p. 10). THE DECISIONS OF THE STATE SUPREME COURT The decision of the State Supreme Court in the Simpson case was based upon the assumed validity of the decision, and the reasoning thereof, in the Stettler case. These decisions are printed in full in the appendix hereto (Appendix, III and IV). It has already appeared that the crucial point in these cases, and the pomt to which the complaints are directed, is the point that the establishment of a general, compulsory statutory mini- mum wage in private employment, based and computed solely upon the individual needs of the employe, the basis and compu- tation of which do not depend upon anything connected with 11 or arising from the particular occupation im, question, is win- warranted, by any proper construction of the police power of the State. There is here in essence no direct question of the regulation of hours, except as the fixing of the maximum hours at the same time that the minimum wage is fixed, becomes an element of the fixing of the minimum wage. Neither is there here any direct question of the fixing of the lunch hour, except as it affects the minimum wage. So far as the record shows, each of the Plaintiffs in Error would have no complaint if the operation of the Statute in ques- tion had been confined to an order of the Commission fixing the maximum hours and the lunch hour as under the orders here complained of. The record shows that the hours now required by this em- ployer are not in excess of those fixed by the order of the Com- mission in question. So far as the record shows the lunch hour is in practice already that which is required. The question presented is that of the constitutionality of the minimum wage, as defined and attempted to be enforced under the Statute in question. This was the only question presented to, or decided by, the State Supreme Court. The question of the reasonableness or of the adequacy of the particular minimum wage here in question, $8.64 per week com- puted by time, is neither directly nor indirectly in the case. While the complaints allege that, where less than the minimum so fixed is paid, such lesser wages are reasonable and adequate to furnish health and comfort to the employe, neither the ques- tion of reasonableness nor adequacy were raised in the State courts and are not raised here, and they were not considered or passed upon by the State Supreme Court in either of the decis- sions in these cases. The question heretofore raised and the only question now raised, is the constitutionality of this proposed extension of the police power of the State beyond the limits which have here- tofore been set, and beyond the limits which heretofore it has ever been attempted to pass. Note the respective decisions: 12 The Stettler Decision. The decision in the Stettler case is shown ( pp. 14-25, Stettler Kecord, Appendix hereto, III). The discussion in that decis- ion of the regulation of hours and the fixing of maximum hours under the police power of the State is not directed to the order of the Oregon Commission, nor to the provisions of the Oregon Statute, fixing maximum hours or fixing lunch hours. All these observations by the State Court in its decision are merely pre- liminary to the discussion of the question presented, that is of the minimum wage, and are for the purpose of attempting to draw, by analogy, conclusions with reference to the minimum wage question. At the outset of the decision, the Oregon Su- preme Court states that the case presents questions "practical- ly new in the courts of this county." Then, after reviewing the cases which have upheld minimum wages in public employ- ment and maximum hours in occupations and under circum- stances where, to the class of employes affected, a greater num- ber of hours might reasonably be found to be detrimental, the court reaches the real and the only question before them — the constitutionality of this compulsory legislative minimum wage in private employment. The court then (Stettler Record, p. 19) says: "There is only one federal inhibition urged against this statute, namely : 'No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction an equal protection of law.' Fourteenth amendment. It may probably be conceded that the public welfare statute in question here violates this clause as abridging privileges of citizens if it can not be justified as a police measure ; and we will assume, without entering into a discussion of that question or citation of authorities, that provisions enacted by the state under its police power that have for their pur- pose the protection or betterment of the public health, mor- als, peace and welfare, and reasonably tend to that end, are within the power of the state notwithstanding they may apparently conflict with the Fourteenth Amendment of the federal constitution." Then, after comparing former regulations of hours and wages in public employment and former regulation of hours in private 13 employment, and especially as applied to women employes, the Oregon State Supreme Court states its general conclusion up- on the question which confronts them in this case in the follow- ing words (Stettler Record, p. 22, Appendix, III, p. 101). "Every argument put forward to sustain the maximum hours law or upon which it was established applies equally in favor of the constitutionality of the minimum wage law as also within the police power of the state and as a regula- tion tending to guard the public morals and the public health." Having come to such a conclusion, stated in general terms, the court then proceeds, on the basis of that general conclu- sion, to deny each of the specifications of unconstitutionality presented by the Plaintiffs in Error. Admitting that the effect of the Oregon Statute and the order of the Commission, if en- forced, would be to abridge the privileges and immunities of the Plaintiff as a citizen of the United States and that it would deprive the Plaintiff of his liberty and of his property without due process of law, and that it would deny to the Plaintiff equal protection of the laws — admitting all this, the court holds that this minimum wage may be justified as a police measure. In- deed, after quoting the XlVth Amendment as expressing the federal inhibitions urged by the Plaintiffs in Error against this statutory minimum wage, the Oregon Supreme Court says: "It may probably be conceded that the public welfare statute in question here violates this clause as abridging privileges of citi- zens if it cannot be justified as a police measure" ; and that such legislative provisions "are within the power of the State not- withstanding they may apparently conflict with the XlVth Amendment of the Federal Constitution" (Stettler Record, p. 19, Appendix III, p. 98). On this basis the court sustains this minimum wage, as against the special claim of the Plaintiff in Error that its en- forcement would infringe each inhibition of the XlVth Amend- ment, specifically stated by him in his complaint and specifi- cally urged upon the court. This leaves the only question in the Btettler case, for review by this court, the question of the constitutionality of the Stat- ute in question, as applied to the minimum wage. 14 The Simpson Decision The Simpson decision is based upon the decision in the Stet- tler case and on the assumption that that decision is in all re- spects correct. It then emphasizes the holding that the statu- tory minimum wage complained of is not, if enforced, an. abridgement of "the privileges or immunities of citizens of the United States" and referring to the Stettler decision, it says (Simpson Record, p. 14), that "it was certainly intended by that opinion to express the conviction of this court that the Act in question violated no precept of the XlVth Amendment." The decision then denies all the contentions of the Plaintiff in Er- ror wherein she, as employe, by her complaint and by her con- tention before that court, urged the repugnance of the statu- tory minimum wage in question to every inhibition, specifically named, of the XlVth Amendment. The only question again in this case which was presented and which was decided, was the constitutionality of the minimum wage. Assignments and Specifications of Error The Plaintiffs in Error, and each of them, allege that in the record, proceedings, decision and judgments of the Supreme Court of the State of Oregon, in these cases respectively, there is manifest error in this : That the said court held the Statute of Oregon entitled "An Act to protect the lives and health and morals of women and minor workers, and to establish an Industrial Welfare Com- mission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act," approved and filed in the office of the Secretary of State of Oregon, February 17, 1913, and known as Chapter 62 of the Laws of Oregon for the year 1913, in so far as it authorized a compulsory minimum wage of $8.64 per week, or at any sum, for women employes in manufacturing establishments of Portland, including the factory of Plaintiff 15 in Error Stettler, or in any manufacturing establishment in the State of Oregon, or in any occupation in said State, to be valid and not in conflict with the provisions of the Constitution of the United States; whereas the said Act, as the same is at- tempted to be enforced in these cases and particularly in es- tablishing and enforcing a minimum wage as in these cases, was and is invalid and contrary to the provisions of the Con- stitution of the United States on each of the following grounds : (1) That the establishment of said minimum wage, or any minimum wage, is contrary to Section 1 of Amendment XIV of the Constitution of the United States in that it abridges the privileges and immunities of these Plaintiffs in Error, and each of them, as citizens of the United States; (2) that the same is contrary to provisions of Section 1 of said Amendment XIV, in that it deprives said Plaintiffs in Error and each of them of their property and liberty without due process of law ; ( 3 ) that the same is contrary to provisions of Section 1 of said Amend- ment XIV, in that it denies said Plaintiffs in Error and each of them, the equal protection of the laws. , For further specification of errors to be relied upon under said assignments, the following are herein urged: There was error in this, to-wit: The establishment and enforcement of a minimum wage, com- pulsory upon employers in private employment, such as is here attempted to be enforced, being based and 'Computed upon the needs of a person, not as employe but as an individual, needs which are independent of the employment in question and in- dependent of any employment, is not within the police power of the State, whether or not intended to be, or in fact, a meas- ure protective of public welfare or of the lives, health or morals of women in general or of the women affected thereby. There- fore, if the enforcement of such minimum wage has the effect to infringe the rights, or any of the rights safeguarded by the XlVth Amendment against State legislation, to the damage of these Plaintiffs in Error, or either of them, or to the damage of other employers or employes similarly situated, the said Act, as to its minimum wage provisions, is invalid on the ground of its repugnance to the Federal Constitution. Applying the foregoing general statement, each of the follow- ing specifications of error are made: 16 1. The Plaintiff in Error, Stettler, has an established busi- ness with a good will built up at great expense, employing women at various wages from f 6 a week up, paying each accord- ing to agreement, and paying in each case all that is reasonable or adequate in view of the quality and quantity of work done. The enforcement of this minimum wage against him will make him pay more than a reasonable or adequate wage, more than the work is worth to him, and thereby will destroy his profits and compel him to go out of business, thereby losing his invest- ment and damaging him in other ways financially. The effect is to confiscate his property, his profits and his business, for the benefit of other individuals, or for a general public benefit, in so far as such benefits shall result. The Act therefore, has the effect to deprive him of his property without due process of law, contrary to the provisions of the XlVth Amendment. For the same reasons the Act has the effect to deprive the Plaintiff in Error, Simpson, of the benefits of her employment, and therefore deprives her of her property without due process of law, contrary to the provisions of the XlVth Amendment. 2. The Plaintiff in Error, Simpson, is paid all that she earns, although less than the fixed minimum wage. It is the only work that she is fitted to do and in which she can earn as much as she does now, although less than the minimum wage. She and other women employes of the Plaintiff in Error, Stet- tler, are working under agreements for wages, which, though less than the minimum wage, are reasonable and adequate for the quality and quantity of work done. Such contracts of em- ployment are reasonable and satisfactory. There is nothing connected with or arising out of the employment in question which either directly or indirectly increases the need, that is, the individual need, which the minimum wage fixed is intended to supply. The enforcement of the proposed minimum wage, with its penalties, nullifies further similar contracts of employ- ment and makes the enforcement of such contracts, even with the consent of the employe, a misdemeanor on the part of the employer. The Act, therefore, deprives both the Plaintiffs in Error, Stettler, as employer, and Simpson as employe, of their liberty of contract, contrary to the provisions of the XlVth Amendment. 3. The minimum wage imposed applies to Plaintiff in Er- 17 ror, Stettler, as a manufacturer of the City of Portland. It does not apply to other occupations, either in the City of Port- land or elsewhere. It does not apply to manufacturers outside the city of Portland, whether within the State of Oregon or out- side the State of Oregon. This discrimination against this Plaintiff in Error, in thus applying this minimum wage, is not only destructive of his business and creative of artificial com- petition against him in his own business, but it creates an ar- bitrary distinction against him and makes him one of a special class 1 under an arbitrary and unjustified classification; and thereby, as well as for other reasons herein appearing, are abridged his privileges and immunities as a citizen of the Unit- ed States and he is denied the equal protection of the laws, con- trary to the provisions of the XlVth Amendment. The Plaintiff in Error, Simpson, is not only unreasonably de- prived of the liberty of contract and of her property rights, but she is discriminated against as one of an arbitrary class, for which classification there is no basis, especially so far as this minimum wage is concerned ; and thereby, as well as for other reasons appearing, there are also abridged her privileges and immunities as a citizen of the United States and she is denied the equal protection of the laws, contrary to the Provisions of the XlVth Amendment. 4. The Plaintiff in Error, Stettler, if the minimum wage pro- visions of said State Statute are enforced, will be compelled to contribute to the private and individual needs of other per- sons in various sums, at various times, whereby said State Stat- ute will have the effect to take the property of said Stettler for a private purpose without compensation. If said forced contributions to the individual needs of other persons are en- forced for the public welfare of the community and in behalf of the public, then the said State Statute will have the effect to take the private property of said Stettler for a public use and without compensation. Such taking of private property without compensation is prohibited by Section 18, Article I, of the Oregon State Constitution. The enforcement, therefore, of such contributions would be the enforcement of a State Statute whereby said Plaintiff in Error would be deprived of his property without due process of law, contrary to the XlVth Amendment of the Federal Constitution. 18 5. The said Oregon Statute authorizes a minimum wage, based upon individual and personal needs of the employe and applies to women adults, and to minors who are either men or women. The basis of fixing the minimum wage and compu- ting its amount, is, in all cases, the living necessities of the in- dividual, existing independently of the fact whether such indi- vidual be a man or a woman and independently of the fact whether such individual be a minor or an adult woman, also independently of the fact of employment. The basis of compu- tation, therefore, is independent of the classification of per- sons to whom the Statute applies and is not based even upon the distinction between men and women; whereby the Stat- ute, if enforced, has the effect to discriminate against the Plaintiff in Error, Stettler, in respect of the individuals to the personal needs of whom he is thus compelled to contribute, and thereby he is deprived of his privileges and immunities as a citizen of the United States and is denied the equal protec- tion of the laws, contrary to Section 20, Article I, of the Oregon Constitution, and contrary to the XlVth Amendment of the Federal Constitution. This statute, thus applying to both men and women, and ap- plying to all women, whether adult or minor, and to all men minors, and excluding all other men, creates an arbitrary classification for the individuals entitled to the minimum wage, but fixes the computation of the amount of the minimum wage on a basis which is independent of such classification, that is upon the basis of the individual needs of the persons affected, excluding from its operation other persons equally affected by the same needs, that is the funds necessary to furnish them the cost of living and to maintain them in health; and Plain- tiff in Error, Simpson, is thereby discriminated against and is deprived of her property and liberty of contract as one of an arbitrary and discriminating classification; whereby, the said State Statute has the effect to deprive her of her privileges and immunities as a citizen of the United States and to deny her of the equal protection of the laws, contrary to Section 20, Article I, of the Oregon Constitution and contrary to the XlVth Amendment of the Federal Constitution. Wherefore', said Plaintiffs in Error, and each of them, pray that the said judgments, and each of them, of the Supreme 19 Court of the State of Oregon be reversed and annulled, and that the said Act of the State of Oregon be declared void and unconstitutional in so far as it authorizes the enforcement of the minimum wage here in question, against the contentions of the Plaintiffs in Error, and each of them. ARGUMENT I The Federal Question Involved From the Statement of the Case -and from the Statement of the Facts, including the Summary of the Decisions of the Ore- gon State Supreme Court, which have just been presented, it is manifest that there has been only one question in these cases, and that that question is the only one which remains for this court ; and that this question is a purely federal question. This question is: Is it within the police power of the State to enact and enforce a legislative, compulsory minimum wage for private employ- ment? This new species of paternalistic legislation cannot be sus- tained as applied to women workers, unless a similar minimum wage is to be sustained as to men workers. The principle here involved has a basis more fundamental and more far-reaching than any distinction between women and men. The question here is not of the fixing of hours or of wages in public employment. The question here is not of fixing of hours nor of working conditions in private employment, for the purpose of protect- ing the employe, man or woman, against the hazards or needs arising out of or in connection with the employments- to which the regulation applies. The question here is not one of the protection of women 20 against dangers to their health or morals from excessive hours, arising either out of employments in which a greater number of hours would be or might be dangerous, or out of employ- ments irrespective of their nature. The question here is, in essence, whether the legislative arm of the State Government is to reach out its hand and lay hold of every private industry and of every mercantile and commer- cial business and arbitrarily and artificially control prices., not only of labor, but of the products of labor, including the prices of any or all articles of commerce, whether marketed at whole- sale or at retail. The question is : Shall competition in the business and com- mercial world be hampered and controlled by the arbitrary in- terference of State Legislation through legislative control of the prices, not only of labor, but of all subjects of commerce? Is legislative control to be extended to every detail of the con- duct of private enterprise, industrial and commercial? It is the contention of the Plaintiffs in Error that this pro- posed extension of the police power of the State is not only not warranted by any judicial precedent, but that it is contrary to every principle heretofore established as denning the limits and scope of the police power of a State. It is further the contention of Plaintiffs in Error that, in ad- dition to the reasons based upon judicial precedent, such a statute is contrary to public policy, because, for economic rea- sons, it is destructive of both the interests of employers and the interests of employes. It is also the contention of these Plaintiffs in Error that the proposed extension of the police power of the State to the fix- ing of a minimum wage in private employment is not demand- ed by public opinion, but that on the contrary, the preponderant opinion of the intelligent mass of American people is against a legislative, compulsory minimum wage in private employ- ment. These contentions will next be taken up in the order men- tioned ; and, first, the contention that, in view of the establish- ed constitutional limits of the police power of a State, the com- pulsory, statutory minimum wage in private employment is re- pugnant to the XlVth Amendment of the Federal Constitution. 21 II A Legislative, Compulsory Minimum Wage in Private Em- ployment is not within the Police Power of a State to Enact and is therefore Repugnant to the XlVth Amendment of the Federal Constitution It should be kept in mind that this Statute provides for a minimum wage "in any occupation in the State of Oregon;" also that the Statute fixes the basis of computing the amount of the minimum wage on the individual needs of the employe, that is, on the amount necessary to supply the employe the cost of living, and to maintain health ( See Sec. 1, Ore. Stat. ; also Sec. 4, powers of Commission, also Sec. 8, duties of Con- ference). The recommendations of the Conference in this case and the order of the Commission based thereon, state that the particular minimum wage herein fixed was based on the amount necessary to supply the cost of living and to maintain in health the employes affected (See Complaint, Stettler Record, pp. 6-8; Simpson Record, pp. 7-8). The theory upon which the Oregon statute is based, as a constitutional question, is shown by the following propositions which will be urged by those arguing in its support : (1) While the statute has the effect to limit the right of contract in private employment, also to compel an employer, so long as he retains certain employes on his pay roll, to pay them in excess of what they earn and thereby compels the em- ployer to contribute to the sustenance of the employe without regard to consideration, and although it has the effect to dis- criminate between the employer affected and other employers within or without the state who are in the same class, — yet neither for this or for other reasons is the statute necessarily repugnant to the constitutional prohibition against statutes having such effects, because it is a statute the prime object and effect of which are to protect and safeguard the general public welfare, in that it promotes the general health and morals of its citizens and particularly of that class of citizens to whom it applies, and therefore it is justified as a proper exercise of the police power of the State. (2) That the statute has the same basis of constitutionality as statutes which have been sustained, regulating certain rules between employer and employe, including those compelling 22 healthful and safe conditions and instrumentalities for work; those restricting hours of labor and even a minimum wage for employes engaged in public employment or in public work; those limiting the hours in private employment in occupations in their nature peculiarly and necessarily unhealthful or haz- ardous; and also those providing employment restrictions pe- culiarly necessary, in the instances in which the statutes are ap- plicable, to the protection of women or minors, as such, and as distinguished from the less stringent restrictions assumed to be necessary for the protection of men adult employes. (3) For the reason that the police power has been sustained as the basis for certain statutory regulations, applicable to cer- tain cases of employment in favor of women, as such, and in favor of minors, as such, which presumably, under the decisions, could not be applied to adult male employes; therefore, any statute regulative of employment of women, or of women and minors, if only its purpose be made ostensibly to appear as one to preserve or promote the morals and health of the intended beneficiaries of the act, must be sustained as within the police power of the state. (4) The Oregon minimum wage statute, applying to wom- en and minor employes, engaged in any occupation, is just such a statute as is described in the last premise. It is, there- fore, within the police power, no matter that it restricts the lib- erty of contract, takes the property of one for the benefit of an- other, and has many effects which, otherwise than for the para- mount nature of the police power, would make it repugnant to the well known constitutional limitations prohibiting statutes depriving citizens of their liberty or property without due process of law, discriminating between citizens of the same class, unduly delegating legislative power, and other limitations safeguarding well recognized individual personal and property rights. Any argument in favor of the constitutionality of this stat- ute, however expressed, will, when analyzed, resolve itself into an attempt to support the propositions of law as above ex- pressed. Indeed, the decision of the Oregon Supreme Court in these cases expressly bases its decision upholding this Mini- mum Wage Statute upon an argument similar to that just out- lined, and the gist of its decision is contained in these words: "Every argument put forward to sustain the maximum hours law or upon which it was established applies equally in favor of the constitutionality of the minimum wage law as also within the police power of the state and as a regula- 23 tion tending to guard the public morals and the public health." Stettler Kecord, p. 22. It requires only a cursory examination of the authorities to disclose the fallacy of that argument. With the exception of the decisions in these cases, there has been no decision of any appellate court, federal or state, sustaining a statutory compulsory minimum wage for either men or women or minors in any private employment, and no inferior court, federal or state, has sustained such a measure. In order further to direct attention to the precise questions here involved, and to show the fact that the very distinctions made in the decisions of the highest courts in cases of other statutory regulations in labor matters point very clearly to the conclusions herein reached, I will next show that certain de- cisions and classes of decisions which are cited in support of a statutory minimum wage for employes in private employment, not only do not support such a minimum wage, but are conclu- sive against it. Such decisions are those (1) upholding Statutory hours or wages for employes engaged in public work; and (2) next, decisions upholding statutory hours for employes engaged in exceptionally unhealthy or hazardous occupations, and then (3) decisions extending the police power of statutory protec- tion to women beyond the limits established for men, and show- ing the grounds of the distinction in favor of women and the limits within which such distinction is permissible. Such ex- amination will show that the statutory limits of regulation of employment of women under the police power are so established as to prohibit the statutory minimum wage for women and mi- nors as provided by the Oregon act of 1913. In other words, it will be shown that the decisions cited in support of this minimum wage not only do not support it, but on the contrary are against it. To this showing will be added decisions directly adjudicating that such statutory minimum wage for private employment is unconstitutional. 24 DECISIONS AS TO EMPLOYES ENGAGED IN PUBLIC WORK A Kansas statute regulating the employment of all laborers, in any public work, to an eight hour day, was upheld by the United States Supreme Court, without reference to the ques- tion of police power, on the ground that the State had the power to prescribe the conditions upon which it, the State, or any of its municipal divisions, which are a part of the State, should enter into contracts for labor. As said by Justice Har- lan, who wrote the decision: "Whatever may have been the motives controlling the enactment of the statute in question, we can imagine no possible ground to dispute the power of the State to de- clare that no one undertaking work for it or for one of its municipal agencies, should permit or require an employe on such work to labor in excess of eight hours each day, and inflict punishment upon those who are embraced by such regulations and yet disregard them. It cannot be deemed a part of the liberty of any contractor that he be allowed to do public work in any mode he may chose to adopt, wtihout regard to the wishes of the State. On the contrary, it belongs to the State, as the guardian and trus- tee for its people, and having control of its affairs, to pre- scribe the conditions upon which it will permit public work to be done on its behalf, or on behalf of its municipali- ties." Atkin v. Kansas, 191 U. S. 207, 222. The court, in the same decision, expressly holds (page 218) that the question of police power, touching the regulation of hours in private employment in hazardous occupations, such as was discussed in the case of Holden v. Hardy, 169 U. S. 366, was not involved for the reason, as shown by the quotation just given, that the work was public work. What is more significant, the Court says : "No question arises here as to the power of a State, con- sistently with the federal constitution; to make it a criminal offense for an employer in purely private work in which the public has no concern, to permit or to require his em- ployes to perform daily labor in excess of a prescribed num- ber of hours." Then distinguishing the case of Holden v. Hardy, in which the limitation of hours for laborers in underground mines and 25 smelters to eight hours, was supported on the ground of the ex- ceptional hazards of the employment, the Court said: "As already stated, no such question is presented by the present record ; for, the work to which the complaint refers is that performed on behalf of a municipal corporation, not private work for -private parties. Whether a similar statute, applied to laborers or employes in purely private work would be constitutional, is a question of very large import, which we have no occasion now to determine or even to consider." Atkin v. Kansas, 191 U. S. 207, 218-219. This decision established the principle that statutory regula- tion of hours, or even of wages or any other condition, as ap- plied to contracts or employment for public work, does not pre- sent the question of police power ; that such a statute is within the power of the State, on the ground of public policy, which leaves to the State the power to control the conditions of con- tracts to which it or its municipal subdivisions shall be a party for the purpose of its own public work. This authority is recognized in a recent Washington de- cision where a state statute not only regulated hours, but fixed a minimum wage for employers engaged in public work. It was upheld by the Supreme Court of Washington on a second hear- ing, on authority of the reasoning and conclusion in the case of Atkin v. Kansas. Malette v. City of Spokane, 77 Wash. 205. Cases, therefore, decided on the ground that the work in- volved is public work, not only do not apply, but they clearly make a distinction as against cases of private employment and indicate that any general statute regulating hours or wages in private employment must, as to the classes of labor to which they apply, be based upon distinctions clearly sufficient to bring them within the police power of the state. This leads to the distinctions made with reference to pri- vate employment. 26 DECISIONS AS TO HOURS IN EXCEPTIONALLY UNHEALTHFUL OB HAZARDOUS OCCUPATIONS It has never been held that, as to men or as to women, stat- utory restrictions of hours could be enforced, except as to em- ployment in such exceptionally unhealthful or hazardous oc- cupations, that the peculiar hazard to health, life or limb of those occupations justified the statute as a police power regu- lation of the health or safety of the employes embraced in the act. On this principle it has been decided in many cases, which holding has been supported by the United States Supreme Court, that hours of labor might be limited in private employ- ment in underground mines, smelters, etc. A statute of Utah made such limitation at eight hours, and in upholding that statute as a proper exercise of the police power, the United States Supreme Court said : "The enactment does not profess to limit the hours of all workmen, but merely those who are employed in under- ground mines, or in the smelting, reduction or refining of ores or. metals. These employments, when too long pur- sued, the Legislature has judged to be detrimental to the health of employes, and so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the federal court. While the general experience of mankind may justify us in believ- ing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight and is frequently subjected to foul atmosphere and a very high temperature or to the influence of noxious gases, gen- erated by the process of refining or smelting." Eolden v. Hardy, 169 U. S. 866. By this decision, there was expressly excluded the power, though ostensibly based on the police power of the State to protect health and morals, to enact any regulation of private employment and have it applied to any particular occupation, unless from the peculiar nature of that occupation itself, there could be reasonably said to be presented some peculiar hazard to the health or welfare of the employes in question. That 27 question of fact must be determined by a consideration, first, of the nature of the occupation in question; and, second, the nature of the condition of the employes in question, as con- nected with the particular occupation in question. Neither of these elements alone is sufficiently determinant. The police power cannot be exercised solely because the class of employes in question is composed of men or of women or of minors, either or all. Neither can it be exercised solely because the occupation in question is of one kind or another, either hazardous or non- hazardous. The exercise of the police power in such, cases is to be deter- mined by the nature and extent of the peculiar hazards to health or safety arising out of the connection between the particular class of employes in question with the particular occupation in question. If, from such connection, standing by itself and independent of other causes or conditions, there does not arise peculiar conditions menacing the health, comfort and safety of the em- ployes, then there is no ground for the exercise of the police power with respect to such occupation. Without going further, then, it is manifest that even if it be established that a certain employer in a certain occupation does not pay a certain employe or a certain class of employes a living wage, by reason of which fact the health, comfort or even morals of the employe is menaced, nevertheless the re- quisite ground for the interference of the State through its po- lice power is not present. The needs of the employe are abso- lutely independent of anything that is related to the occupation in question. They are neither created nor increased by reason of any action on the part of the employer or through anything which is peculiar to the particular occupation in question. This is as far as we would need to go. For the fact remains that neither the lack nor the need of a living wage is peculiar to any particular class of persons, nor to any particular class of employes, whether the class distinction be made on the basis of age, of sex, or of experience. That necessity is individual. It is neither created nor increased by the fact that the individ- ual suffering from that common need, that natural need, hap- pens to engage himself in a particular occupation as an em- ploye. 28 There is no ground for the distinction attempted in this minimum wage statute, though confined to women, which war- rants its support as a police power measure in furtherance of health and morals. I am stating these fundamental propositions now because they are suggested by the decisions already cited, and they will be illustrated and confirmed by the decisions which I shall next cite. THE NEW YORK BAKERY SHOP CASE The Legislature of New York passed a statute limiting the hours of employment in bakeries to ten hours a day. This applied to employes of both sexes. The United States Supreme Court held that act void as not within the police power of the State, and the Court said : "It must, of course, be conceded that there is a limit to the valid exercise of the police poioer by the state. There is no dispute concerning this general proposition. Other- wise the Fourteenth Amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people ; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext — become another and delusive name for the su- preme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the ques- tion necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interfer- ence with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family Of course, the liberty of con- tract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. "This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment 29 of the court might be totally opposed to the enactment of such a law. But the question would still remain : Is it within the police power of the state? And that question must be answered by the court. "The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelli- gence and capacity to men in other trades or manual occu- pations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference what- ever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interests of the public are not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours per week. The limitation of the hours of labor does not come within the police power on that ground. "It is a question of which of two powers or rights shall prevail, — the power of the state to legislate, or the right of the individual to liberty of person and freedom of contract. "The mere assertion that the subject relates, though hut in a remote degree, to the public health, does not neces- sarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid, whidh interferes with the general right of an individual to be free in Ms- person and in his' power to contract in relation to his own labor. "This case has caused much diversity of opinion in the state courts. In the Supreme Court two of the five judges composing the court dissented from the judgment affirm- ing the validity of the act. In the Court of Appeals three of the seven judges also dissented from the judgment up- holding the statute. Although found in what is called a labor law of the state, the Court of Appeals has upheld the act as one relating to the public health, — in other 30 words, as a health law. One of the judges of the Court of Appeals, in upholding the law, stated that, in his opin- ion, the regulation in question could not be sustained un- less they were able to say, from common knowledge, that working in a bakery and candy factory was an unhealthy employment. The judge held that, while the evidence was not uniform,, it still led him to the conclusion that the occupation of a baker or confectioner was unhealthy and tended to result in diseases of the respiratory organs. Three of the judges dissented from that view, and they thought the occupation of a baker was not to such an extent un- healthy as to warrant the interference of the legislature with the liberty of the individual. "We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health lam to safeguard the public- health, or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, there- fore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employe, to make contracts for the labor of the latter under the pro- tection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go. The case differs widely, as we have already stated, from the expressions of this court in regard to laws of this nature, as stated in Hold en v. Hardu, 169 U. S. 366, 42 L. Ed. 780, 18 Sup, Ct, Rep, 383, and Jacob- son v. Massachusetts, 197 U. S. ante, 643, 25 Sup. Ct. Eep. 358. "We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or em- ployee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the com- mon understanding the trade of a baker has never been re- garded as an unhealthy one. Very likely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and per- fectly healthy is to confer that right upon the legislative 31 department of the government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to war- rant legislative interference with liberty. It is unfortun- ately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. "But are we all, on that account, at the mercy of legis- lative majorities? A printer, a tinsmith, a locksmith, a car- penter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption. No trade, no occupation, no mode of earning one's living could escape this all-per- vading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the abil- ity of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the busi- ness of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers and other employes. Upon the assumption of the val- idity of this act under review it is not possible to say that an act, prohibiting lawyers or bank clerks, or others,' from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to' work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer's clerk, the real estate clerk, or the broker's clerk in such offices is, therefore, unhealthy, and the legis- lature, in its paternal wisdom, must, therefore, have the right to legislate on the subject of, and to limit, the hours for such labor ; and if it exercises that power, and its val- idity be questioned, it is sufficient to say, it has referent to the health of the employe condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be ques- tioned by the courts." Lochner v. New York, 198 U. S. 45, 56. This decision has been vigorously attacked, and it is even asserted that the dissenting opinion in this case "is the law in this country today." Report Mass. Com. Minimum Wage Boards, 1912, p. 24. 32 But the dissenting opinion in that case did not support or urge any principle which could be the foundation for a statu- tory minimum wage in private employment. It was based upon the proposition that, as the Legislature of New York had de- clared, that the bakery industry was peculiarly dangerous to the health of employes, the contrary fact was not so well established and well known that an, appellate court could say of its own motion that the finding of the Legislature was wrong upon this question of fact, nor that the state appellate court was wrong in refusing to reverse the state legislature as to that finding of fact. Lochner v. New York, 198 U. S. 45, dissenting opinion, 65-74. But in this decision there is emphasized the principle which I have above stated as controlling the consideration of the consti- tutionality of this minimum wage statute, and my present con- tention is supported even more by the dissenting opinion than by the main opinion. Taken together, they form a complete confirmation of my proposition, and a complete answer to the claim of constitutionality for this minimum wage statute. They clearly establish the rule that in these matters the hazard to safety, health or comfort of the employe which may be pro- tected by the statutory regulation must be a hazard peculiar to the occupation in question. A statutory restriction, even as to hours of labor, which had no relation between the occupation affected and the question of the safety, health or morals of the employe, could have no validity based upon the police power of the state. Yet this minimum wage statute applies to any occupation and to each and all occupations, businesses and industries, and to every branch thereof, without any reference or consideration to any peculiarity of any such occupation, much less of any peculiar- ity with reference to its being hazardous to safety, health or morals. Accordingly, a regulation of hours made in the broad terms of this statute could not be justified; much less a regu- lation of wages, computed by the living needs of the employe, which are not even remotely connected with, but are absolutely divorced from, anything arising out of the occupation itself. There is no "real or substantial relation" between the employ- ments affected by such a statute and the objects which it pur- 33 ports to accomplish. In other words, there is no real or sub- stantial relation between the occupation of, for instance, the retail merchant and the natural necessity or the natural desert of an employe to receive a living wage, even though a living wage be necessary for the reasonable health and comfort of the employe. Even if we admit that it is the ethical or religious duty of an employer to supply this need, still there is no legal basis for compelling him to do so, merely because in some occu- pation he holds to the person in need the relation of employer to employe. As has been said by the United States Supreme Court many times, and reiterated by the dissenting opinion in the Lochner case, a court should declare such statute invalid if it, though "purporting to have been enacted to protect the public health, the public morals or the public safety, has no real, substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of the rights secured by the fundamental law." Lochner v. New York, 198 U. S. ; dissenting opinion, p. 68. No statutory regulation of labor, whether as to labor condi- tions, hours or wages which involved a payment or charge upon the employer in favor of the employe has ever been sustained, unless such charge has been to compensate the employe for or to relieve him from some hazard or disadvantage arising di- rectly out of the employment in question. On this principle, hours may be restricted as to employes to whom in the occupa- tion in question longer hours are unhealthy or dangerous. Safe and healthful conditions of work may be required, including safety appliances in machinery. Also, under workmen's com-' pensation acts, casualty from accident in the employment may be insured against at the expense of the employer. It could never be seriously claimed, however, that an employer could be compelled to provide reasonably necessary sick benefits or death benefits for his employe or employe's family, on the ground that such misfortunes occurred directly or indirectly to the employe while employed, — meaning, of course, sickness and death of the employe, or members of his family, which are not results of contact with the employment. Nevertheless, such benefits would be promotive of the health and comfort of the employe and are included in the reasonable necessaries of life. 34 Such benefits cannot be imposed where their necessity does not originate from the employment itself. For the same reason, the minimum wage benefit is entirely different from other statu- tory benefits to employes, at the expense of the employer, which have been sustained by the courts. The fulfilling of the neces- sity in question is, as a general proposition, promotive ot health, morals and comfort, but it is not a necessity which arises out of the employment, nor one which is connected with it. So far as considerations of legal obligations are concerned, the employer is a stranger to such necessities. Therefore, he cannot be compelled by law to pay a wage based solely upon the living necessities of the individual employed. THE OREGON CASE — WOMEN IN LAUNDRIES The case of Midler v. Oregon, 208 U. S. 412, is cited in sup- port of this minimum wage statute for women employes, as establishing a right of the legislature, under the police power, to have enforced this legislation as to women employes, which, it is demonstrated, under the decisions already cited, could not be enforced as to adult male employes. It is claimed that this case establishes the right to place women as a class under the purview of statutes regulating hours and wages and other con- ditions; and that such restrictions may be made applicable to any and all occupations independently of the questions of any hazard to safety, health or morals peculiar to the occupation in question. ' On the contrary, this Oregon case again confirms the prop- osition upon which my argument is based, that in order to warrant such restrictions, with reference to any occupation, on the ground of police power to protect against hazards to safety or health or morals, the hazard in question must' be shown to arise from the occupation in question, and in connec- tion with the employment in question. More than that, a re- striction as to hours might be justified as having "real, sub- stantial relation'' with the purposes of the statute. But a regulation requiring a living ^Yage would have no relation whatever to the occupation or to the employment in question. The Legislature of Oregon passed an act limiting the hours for work by females "in any mechanical establishment, or fac- * 35 tory, or laundry in this state more than ten hours during any day." The question in this case was as to whether the pro- hibition as applicable to laundries could be enforced. Now, from what has already been said, and before we pro- ceed to examine the decision of the federal supreme court in this Oregon case, we can readily see that the principles which we have stated, as already drawn from the decisions above noted, would be confirmed or repudiated in the Oregon case according to whether the basis of that decision was one or the other of the following propositions: (1) The occupation of laundry women, as laundries are generally conducted, involves such requirements of the employe that excessive hours would hazard the safety and health of the employe in question ; and, furthermore, as the employes in question are women, the hazard involved is peculiarly danger- ous to women; or (2) Under the police power restrictions may be applied to women employes as a class, irrespective of the character of the occupation or kind of employment in which their work is done, and irrespective of the kind' of work which the women employes in question have to do in that occupation, and also irrespective of whether or not the hazard to their safety, health and com- fort, against which it is the object of the act to protect them [in the case of the minimum wage statute it is the abstract right to or need of living, and is not a question of hours] has, in the words of the Court, "any real or substantial relation" to the objects sought to be accomplished. Now, a reading of that decision shows that it is based exactly upon the former proposition and that it squarely repudiates the latter proposition. The case, therefore, not only fails to support the argument for the constitutionality of the minimum wage statute, but is directly against it. The Court held that an occupation might be injurious to a woman employe when it was not to a man, and that, therefore, hours of more than ten a day for a woman might be prohibited, if the facts warranted, when such prohibition in the case of a man would not be sustained; and that this distinction, when reasonably made the basis of a statute, would be sustained. Then, referring to the occupation in question, that of a woman worker in a laundry, requiring her day after day to be for a long time on her feet at work, it was held that the State Legislature was warranted in finding that there was as to 36- women a peculiar hazard to health, if the hours were not re- stricted. This is the scope and limit of that decision. The Court said: "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fra- ternity, continuance for a long time on her feet at work, respecting this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offsprings, the physical wellbeing of woman be- comes an object of public interest and care in order to preserve the strength and vigor of the race. "Still again, history discloses the fact that woman has always been dependent upon man. He established his con- trol at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him ; but looking at it from the viewpoint of the effort to main- tain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legis- lation 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, per- sonal and contractual rights were taken a\v;:v, 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 37 protection; that her physical structure and a proper dis- charge of her maternal functions. — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. 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 wellbeing of the race, the self-reliance which en- ables one to assert full rights, and in the capacity to main- tain the struggle for "subsistence. This difference justifies a difference in legislation, and upholds that which is de- signed to compensate for some of the burdens which rest upon her. "We have not referred in this discussion to the denial of the elective franchise in the State of Oregon, for while that may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes, and in the different functions in life which they perform. "For these reasons, and without questioning in any re- spect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question . is in conflict with the Federal Constitution, so far as it respects the work of a female in a laundry, and the judg- ment of the Supreme Court of Oregon is affirmed." Midler v. Oregon, 208 U. S. 412, 421-23. DISTINCTION BETWEEN (1) MAXIMUM HOURS FOR WOMEN AND (2) MINIMUM WAGES FOR WOMEN It has, in fact, never been held by this court that, irrespective of the nature of the occupation to which the restriction applies, a restriction of maximum hours for women employes is within the police power. The Statute upheld by this court in the case of Mutter v. Ore- gon, limited hours for work by females "in any mechanical es- tablishment or factory or laundry in this State more than ten hours during any day." The decision in that case was expressly 38 based, as above shown, upon the factsi (1) that work in laun- dries involved physical requirements such as "continuance for a long time on her feet at work," and (2) that woman's peculiar physical structure and her peculiar burdens and duties made such work tend "to injurious effects upon the body." From these facts this court concluded that "so far as it respects the work of a female in a laundry" the State Statute there in ques- tion must be sustained as a proper exercise of the police power. That decision has been claimed as a support for the proposi- tion that a state could constitutionally legislate maximum hours for any and all women in any and all employments. Such proposition has not been sustained by this court. The Statute of Massachusetts, discussed in the case of Riley v. Massachu- setts (232 U. S. 671, 679), provided for a ten hour day for wom- en employed "in any manufacturing or mechanical establish- ment." The precise question presented in that case was the constitutionality of the requirement that the employer should post a printed notice, stating the number of hours work re- quired of employes on each day of the week, and the hours of commencing and stopping work, etc. (232 U. S. 679). This provision was upheld as proper means to secure certainty in the observations of the law (p. 681). The maximum hour provis- ion was not held constitutional, except as to the mechanical fac- tories to which alone the Statute applied. The case of Muller v. Oregon, is cited by this court as a precedent, not for gen- eral maximum hour provisions for women, but for maximum hour provisions for women "in mechanical factories or laun- dries" (p. 679). The Ohio Statute in question in the case of Hawley v. Walk- er (232 U. S., p. 718), provided for maximum hours for adult females employed in "any factory, work shop, telephone or tele- graph office, millinery or dressmaking establishment, restau- rant, or in distributing or transmitting of messages" (Ohio Act of May 31, 1911 ) . Indeed, the contention of the Defend- ant in Error in that case, as shown by the argument and con- clusion in the brief of his counsel, was confined to urging the con- stitutionality of the hour regulation for women in the "enumer- ated employments." The judgment of the Supreme Court of the State of Ohio sustaining that Act as constitutional was af- firmed by this court on the authority of Muller v. Oregon (see 232 U. S. 718). 39 Therefore, it has not been established by this court that it is within the police power of the State to legislate maxi- mum hours for women as applied to all private occupations. But even if such had been the holding of this court, or even if such is to be the holding of this court, when the question shall arise, still such holding would not be authority for sus- taining a compnJsory minimum wage statute in private employ- ment. The difference between the prevention of physically ex- cessive hours, and the compulsory monitary contribution to. the individual needs of the one employed, is so great that the con- stitutionality of the latter could not "be based upon the con- stitutionality of the former. The former would be a regulation to protect against the dangers which arise out of and are connected with the fact of employment and which arise out of and are connected with the employment itself and the methods by which such employment is conducted. Without the employment, the need or hazard or danger against which the Statute intends to protect, does not exist. The employment involves physical ex- actions, to the burdens of which the natural, physical endur- ance of woman are peculiarly susceptible; and, for the protec- tion of womankind and, therefore, for the welfare of the com- munity, any excessive physical requirement is prohibited. This is the theory, and the only theory, on which a general, maxi- mum hour regulation as to women could be sustained. But the enforcement of a minimum wage statute must have another and different basis. It cannot be based, and is not at- tempted to be based, upon any need, hazard or danger to the employe existing or arising in any way out of the fact of em- ployment, or out of the employment itself. It is based upon a purely individual need of the person concerned and it is a need to such person which exists and continues just as much with- out employment as with employment. It is the natural, human, individual need of subsistence and of health. It is a need to which, except upon purely ethical considerations, the employer- is a stranger. He may be paying all that the employe earns or is capable of earning. The employment in question may be merely incidental as a means of subsistence to the employe. She may have other and independent means of support. The record in this case shows that many of Stettler's employes, af- fected by this Statute, are of that class. The observance of the 40 most altruistic rule of duty between one individual and another would under the circumstances probably require less than that which is compelled by this Statute. But the Statute makes no distinction on the basis of the circumstances of the different employes. Ik is not based and is not attempted to be based upon any ethical duty. It is based solely upon the rigid rule, which must be applied in every case without exception, that the mere fact of employment creates a legal obligation upon the employer, with criminal and civil penalties for its non-ob- servance, to furnish to every woman employe, as wages, an amount which is adequate to supply her with the necessary cost of living and to maintain her in health. Such an obligation cannot be imposed through any reasona- ble construction or extension of the police power of the State. Such legislation is inconsistent with the rights of property and of liberty and of equality which are vouchsafed to the citi- zens of this constitutional democracy. It means the establishment of the discretion of the respective legislatures of the States as paramount to the protective pro- visions of our constitutional safeguards. If this new species of paternalistic legislation be sustained, it means the establish- ment of the arbitrary power of State legislatures, under the guise of the so-called police power, to circumvent constitutional prohibitions. It would constitute a return to the oppressive legislative interference in the conduct of business which' char- acterized those discredited systems of government where regu- lation of prices and regulation of wages and regulation of all conditions of labor and of business were instituted and en- forced, because there existed no enforcible bill of rights and no fundamental law, standing in the way of legislative oppres- sion. In every case where the principle of the minimum wage in private employment has been discussed it has, with the excep- tion of the cases at bar, been repudiated as unconstitutional and not within the police power of the State. 41 CASES DISCUSSING A LEGISLATIVE MINIMUM WAGE FOR PRIVATE EMPLOYMENT Having shown that the authorities cited in support of a legis- lative minimum wage do not furnish any such support, but rather the contrary, I next cite authorities expressly passing upon the minimum wage question. The Legislature of Indiana passed an act prohibiting under penalty any employer engaged upon public work of the state, counties, cities or towns from paying for any unskilled labor less than twenty cents an hour. The Supreme Court of Indiana held the act unconstitutional as infringing the liberty of the citizen, that it was class legislation, and had the effect to de- prive the employer of his liberty and property without due process of law, and denied to him the equal protection of the laws. The question in this case was different from that de- cided in the case of Atkin v. Kansas, 191 U. S. 207. There the only question was the right to legislate as to hours of employes engaged in public work, irrespective of the hazards of the work. This, as we have seen, was decided on grounds independent of any question of police power, but was based solely on the power of the State to legislate as to the terms and conditions under which work for itself, — that is, public work — should be done. The Washington Supreme Court, in the case of Malette v. Spo- kane, decided December 31, 1913, ( 71Wash., 205 ) as we have seen, extended that rule to a minimum wage for laborers employed in public work. The Indiana Supreme Court, however, refused to extend the application of the rule in Atkin v. Kansas, to a com- pulsory minimum wage in public work. It will be for the Su- preme Court of the United States to say which of these two state courts has been right in regard to these decisions. The ques- tion of the minimum wage even in public work has not yet been decided by the Federal Supreme Court. It is certain that if that court should sustain the Washington decision, or reverse the Indiana decision, it will be on the ground that because the employment involved is public work, there is no question in- volved as to police power, and this for the same reasons as stated in the case of Atkin v. Kansas. Accordingly, then, though the Federal Supreme Court shall sustain the power of the State to fix a minimum wage in public work, such decision 42 will in no wise support the claim of the right of .the State to fix a minimum wage in private employment. On the other hand, if the Federal Supreme Court shall refuse to confirm such power in the State, it will be for the reason that a minimum wage, even for public work, does not come within the power or the State, either as controlling to that extent its own contracts, or under any proper exercise of police power. The Indiana Supreme Oourt approached the question as though it stood upon the same ground as would a legislative minimum wage in private employment. We have, therefore, in the decision of the Indiana Supreme Court, the views of the highest court of one of the states with respect to the power of the State to fix the minimum wage in private employment. In deciding that such attempted exercise of power was unconsti- tutional, and did not come within the proper exercise of the State's police power, the Indiana Court said : "If the legislature has the right to fix the minimum rate of wages to be paid for common labor, then it has the power to fix the maximum rate. And if it can regulate the price of labor, it may also regulate the prices of flour, fuel, mer- chandise, and land. But these are powers which have never been conceded to the legislature, and their exercise by the state would be utterly inconsistent with our ideas of civil liberty. Among the most odious and oppressive laws ever enacted by the English Parliament, in the worst of times, were the statutes of labor of Hen. VI and Edw. III. These enactments fixed a maximum rate of wages for the laboring man, prohibited him from seeking employment outside of his own' country, required him to work for the first em- ployer who demanded his services, and punished every vio- lation of the -statute with severe penalties. In the very nature and constitution of things, legislation which inter- feres with the operation of natural and economic laws de- feats its own object, and furnishes to those 'whom it pro- fesses to favor few of the advantages expected from its pro- visions. The circumstance that the act of March 9, 1901, reverses the conditions of the statutes of labor of Hen. VI and Edw. Ill, and lays the burden and the penalty upon the employer instead of the laborer, does not render it any less pernicious and objectionable as an invasion of natural and constitutional rights. Statutes similar to this have been before the courts of other states, and in nearly every instance have been held unconstitutional. People, r® re j m> Rodgers v. Coler, 166 N. Y. 1, 52 ~L. R. A. 814, 59 N. e! 716 ; State, ex rel., Bramley v. Norton, 5 Ohio, N. P. 183 ; 43 Com. v. Perry 155 Mass. 117, 14 L. E. A. 325, 28 N. E. 1126; Ramsey v. People, 142 111, 380, 17 L. R. A. 853, 32 N. E. 364; Jones v. Great Southern Fireproof Hotel Co., 79 Fed. 477 ; State v. Julow, 129 No. Car. 163, 29 L. R. A. 257, 31 S. W. 781 ; Sharer v. Pennsylvania Co., 71 Fed. 931 ; At- kins v. Randolph, 31 Vt. 237; Palmer v. Tingle, 55 Ohio St. 423, 45 N. E. 313; Cleveland v. Clements Bros. Vonstr. Co., 67 Ohio St. 197, 59 L. R. A. 775, 65 N. E. 885. "The statute of March 9, 1901, is obnoxious to the fur- ther objection that through its operation a citizen may be deprived of his property without due process of law. If the minimum price to be paid by municipal subdivisions of the state for unskilled labor on public works exceeds the rate at which such labor can be obtained by other persons at the same place, then the excess so paid for labor on public im- provements is taken from the citizens assessed for such works, not by due process of law, but by a mere legislative fiat. The citizens of the state, who must, through assess- ments made upon their property, pay for the public works of counties, cities, and towns, are entitled to have such work done at such rate of wages as the local agents and official representatives of such municipal subdivisions of the state may be able to secure by contract. They cannot be required arbitrarily to pay higher wages than laborers employed on private works or improvements in their par- ticular district demand, any more than they could be com- pelled by similar legislation to pay a minimum rate of wages to laborers employed by them in their private busi- ness. If the minimum rate fixed by the statutes exceeds the market value of such wages, the excess is a mere do- nation exacted under color of law from the citizens liable to assessment for the public improvement, and bestowed upon the unskilled laborer. Public revenues cannot be ap- plied in this way. McClelland v. State, 138 Ind. 321, 37 N. E. 1089; State, ex rel., Tie-man v. Indianapolis, 60 Ind. 375, 35 Am. Rep. 223; Warner v. Curran, 75 Ind. 309. Lastly, we think the statute obnoxious to the objection of class legislation. In fixing the minimum rate of wages to be paid for unskilled labor to be employed by counties, cities, and towns, on public improvements, a classification is made which is unnatural and unconstitutional. The la- boring men of the state may, for some purposes, constitute a class concerning which particular legislation may be proper. This classification has been recognized and sus- tained in statutes requiring the payment of wages in law- ful money of the United States, forbidding the assignment of future and unearned wages, and in similar acts. But 44 no legal and sufficient reason can be assigned for placing unskilled labor in a class by itself for the purpose of fix- ing by law the minimum rate of wages at which it shall be employed by counties, cities, and towns on their public works. Why exclude the skilled mechanic from the benefits, of the act? Why compej the payment of a higher rate of wages to the unskilled laborer than may be demanded by the skilled mechanic for more difficult and important work, requiring special training, experience and a higher degree of intelligence? Unless the Legislature has the power to fix the minimum rate of wages to be paid by counties, cit- ies, and towns to carpenters, stone masons, brick layers, plumbers, and painters employed on local improvements, treating each trade as a separate class, it has not the power to enact laws fixing the compensation of unskilled laborers employed on similar works. No sufficient reason has been assigned why the wages of the unskilled laborer should be fixed by law, and maintained at an unalterable rate, re- gardless of their actual value, and that all other laborers should be left to secure to themselves such compensation for their work as the conditions of supply and demand, competition, personal qualities, energy, skill, and experi- ence may enable them to do. After the most careful and thorough examination of all the questions of law presented by the demurrer in this case, we are satisfied that the ruling of the lower court was not erroneous, and its judgment is therefore affirmed." Street v. Varney Electrical Co., 160 Ind. 338. The highest authority on the law of Master and Servant, after a consideration of all the modern arguments for and against a minimum wage in private employment, holds that there is no authority or power in a State to establish or enforce such a wage: "In the American States it would seem that no legisla- tion of this type has ever been enacted, except with respect to public employments. So far as respects work in ichich neither the state itself nor any political subdivision there- of is concerned, there can be no reasonable doubt that, even where the matter is not covered by an explicit provision in an organic law, a restrictive statute would, under the general principles of American constitutional jurispru- dence, be treated by the courts as invalid, whatever might be the nature of the business affected." Labatt, Master and Servant, Sec. 846, p. 2285. 45 • Judge Cooley, in his Constitutional Limitations, says: "In the early days of the Common Law, it was sometimes thought necessary in order to prevent extortion to inter, fere by royal proclamation or otherwise, and establish the charges that might be exacted for certain commodities or services. The price of wages was oftener regulated than that of anything else, the local magistrates being generally allowed to exercise authority over the subject. The prac- tice was followed in this country and prevailed to some extent up to the time of independence. Since then it has been commonly supposed that a general power in the state to regulate prices was inconsistent with constitutional lib- erty." Constitutional Limitations, p. 820. The establishment of the right to regulate prices in a certain public or quasi-public enterprise operated under grants from the State, furnishes no parallel. In such cases, so far as pri- vate property is affected, the private property is used under a public grant and for that reason subjected to regulation by the State, including the regulation of rates. The public, through the State, has a certain interest carrying with it the right of control necessary to regulate such rates. Before the adoption of the Fourteenth Amendment, this right in the State was car- ried to an extreme in fixing maximum charges, and even at ar- bitrary rates, for all classes of industries. But with reference to such regulations, the Federal Supreme Court has said : "Down to the time of the adoption of the Fourteenth Amendment it was not supposed that statutes regulating the use or even the price of the use of private property nec- essarily deprived an owner of his property without due process of law. Under some circumstances they may, but not in all. * * * This brings us to inquire as to the prin- ciples upon which this power of regulation rests, in order that we may determine what is within and without its op- erative effect. Looking then to the common law from whence came the right which the Constitution protects, we find that when private property is affected with a public interest, it ceases to be juris privati only. * * * When one devotes his property to a use in which the public has an in- terest, he, in effect, grants to the public an interest in the use and must submit to be controlled by the public for the common good to the extent of the interest he has thus creat- ed. He may withdraw his grant by discontinuing the use." Mumn v. Illinois, 94 U. S. 125. • 46 Certainly the occupations of the merchant, wholesale or re- tail, and other occupations made subject to the minimum wage statutes, are not of the class specified by Judge Cooley as being subject to price regulation, either in the form of minimum wage regulation, or otherwise. For recent decision declaring Minnesota Minimum Wage Statute unconstitutional, see mfra, page 82-a. If a State is warranted, under the exercise of its police pow- er, in fixing a compulsory minimum wage in private employ- ment, it would be by the same token warranted in fixing prices of any or all commodities, which are the subject of contract and which are marketed and sold at prices governed by the economic law of competition. It is because such legislation defies the natural laws of competition and creates artificial and arbitrary interference therewith, that it is repugnant not only to our fun- damental law, but also to the policy of our laws. In this con- nection I will call attention to certain objections based upon public policy, under the head of "Economic Objections." Ill Economic Objections As preliminary to a discussion of economic objections, and for the purpose of better understanding what follows, I will pre- sent some observations upon the minimum wage as an ethical measure. THE MINIMUM WAGE AS AN ETHICAL MEASURE It is unnecessary to discuss the advocacy of the minimum wage made by that class of social and political antagonists to restraint from either constitutional or economic law who represent modern socialist doctrines. The socialist demands as a matter of fundamental human right the equal division among all citizens of the state of an ownership or direct property in- terest, not only of all private and public property within the jurisdiction of the State, but also of all profits, revenue and proceeds therefrom. Both the theory and practice of wages as 47 such are repudiated as a part of a prevailing fundamental system of injustice. An orthodox socialist could not, therefore, be a consistent advocate of the minimum wage. The socialistic spirit of compulsory division, of disregard for economic law, and of defiance of constitutional restraint, has, however, per- vaded the advocacy of the minimum wage, in so far as it bases the absolute right to a minimum wage, — computed by the full measure of the necessities of living in comfort and in health, — upon the mere fact of the existence of the wage earner, re- gardless of his efficiency, regardless of his wage-earning ability, regardless of the benefits of his labor to his employer, and re- gardless of every other consideration. Such advocacy of the minimum wage is but one phase of a socialistic attitude, de- manding concessions and even division of property and income, on the theory that the fact alone of possessing life entitles its possessor to share in all other possessions or advantages held by other living beings. In justice to Father Ryan, it should be borne in mind that while he is an extreme advocate of the minimum wage, particularly upon ethical and religious grounds, he is an active antagonist of the socialistic system (See Debate on Socialism between Morris Hillquit — affirmative — and John A. Ryan — negative — in October, 1913, and following numbers of Everybody's Magazine). In the purely ethical phases of the question there is little field for contention; because this, as any question of ethics, involving the abstract question of duty, of right and wrong, of charity, of benevolence, of sacrifice for others, becomes from its ethical viewpoint more like a question of religion. It must be solved in fact by each individual or each community of in- dividuals according to the dictates of conscience. The means for accomplishing beneficial results are enlightenment and mor- al suasion, inducing so far as possible voluntary co-operation and thereby bringing promised benefits in proportion to the ex- tent of the co-operation secured. Such ethical advocacy of the minimum wage is based on an assumed right of every person to have and receive that certain amount of material goods which is sufficient to afford him a decent livelihood ; that this right is a moral right, based on his intrinsic worth as a person; and that it is a right as valid, even if of less importance, as his right to life. It is said that the laborer's right to a living 48 wage is but the specific form of his generic right so belonging to every person ("A Living Wage, Its Ethical and Economic Aspects," by John A. Ryan, published by McMillan Co., New York and London, 1912, Chap. XIX, page 324). With such advocates the question involved is one between the method of unrestricted bargaining as to wages and a "profes- sedly ethical standard." ("A Living Wage," page 22). Eco- nomic law is an abstract bogey with which the question has no real relation, because moral forces may overcome the forces of economic law, and in any event the moral right of the laborer is paramount to the economic rights of the employer, Whose moral duty to his employe is gauged by the asserted moral right of the latter. "As a determinant of rights, economic force has no more validity or sacredness than physical force." The em- ployer's right to any return on his investment is subordinate to the laborer's right to receive from him a living wage ( "A Liv- ing Wage," pages 10, 326, 261). The living wage doctrine, then, to this class of advocates, is an ethical question and even a question of purely religious ethics; and the remedy to be thereby accomplished is to be brought about through moral suasion addressed to individuals, furthered by organized effort. "There must be an appeal to the minds and hearts of individuals and the fullest utilization of the latent power of organization and social institutions" ("A Living Wage," page 34, page 331). The ethical advocate, also, recognizes no practical obstacle to the establishment of a minimum wage arising from the forces of economic law. He casts aside such opposing forces as non- existent because in practice they will be found to be actual only in the minds of the abstract economists ; or, if it transpires that they are real, then any disastrous economic result should be submitted to because of the paramount nature of the moral or ethical laAv establishing the right to the minimum wage. Volun- tary recognition of this right and co-operation in the establish- ing of the minimum wage should be brought about by persua- sion and by organization. Compulsory submission can be only brought about indirectly by influence and example. In short, to the ethical advocate, the minimum wage can be established only to the extent that volutary co-operation may be induced. A preliminary requisite to any legislative minimum wage would be necessary changes in the federal constitution and in the con- 49 stitutions of the several states, and these necessary changes would be very difficult to obtain ("A Living Wage," page 313. Also "The Minimum Wage as a Legislative Proposal in the United States,'' by Prof. Lindsay, page 52, in Annals of Ameri- can Academy of Political and Social Science, July, 1913). The foregoing summary of the advocacy of the establishment of a minimum wage through the general recognition of a moral or religious right or duty is of more than incidental interest. Its urgency of co-operation as a means of accomplishing the benefits to low-paid labor suggests a practical means of obtain- ing beneficial results through the minimum wage. It is evident, as I shall show further on, that, wherever conditions have been improved by the establishment of a minimum wage, even in con- nection with legislative enactments, the compulsory features of such enactments have not been so much directly ameliorative of the status of the laborers as they have been a moral and practical assistance in encouraging organized co-operation. It was for that reason that the first minimum wage statute adopt- ed by any of the United States was not made compulsory upon any employer. The Massachusetts act of 1912 makes the State Wage Commission simply a board to investigate and recom- mend a minimum wage as to any occupation; and while, even then, the statute provides for notice and hearing to the employ- ers to be affected, and for review by the courts of any recom- mendation made by the Commission, it provides no penalty. It empowers the Commission to report and to publish its recom- mendations with the names of the employers who do not submit to the recommendation made. By such statute the State be- comes an additional means of promoting co-operation, not only among employers, but between employers and employes in rais- ing the wage of the lower classes of labor to a living wage. It adds to the efforts for amelioration by purely individual ini- tiative and by privately organized co-operation, the encourage- ment and assistance of investigations and recommendations made under official authority. It naturally results in bringing in line with the employers of more humanitarian tendencies those who, from avarice, neglect or indifference, would remain inactive without some such stimulating incentive. (Massachu- setts Minimum Wage Statute, Chapter 706, Acts of 1912, as amended by Chapters 330 and 673, Acts of 1913) . The Massa- 50 chusetts example was followed by Nebraska in the enactment of the minimum wage statute of 1913 in that state. (Chapter 211, Laws 1913). The minimum wage by voluntary co-operation, including that of the State through non-compulsory statutes, is altogether, as it must be admitted, a logical, workable measure. Whether we agree that it is properly based upon the natural and par- amount right of a laborer to receive, and the controlling duty of the employer to provide, in all instances, a living wage, is unimportant. Its object is beneficent; it is hunmanitarian, and as such its accomplishment must be recognized as desirable, so far as any concrete beneficial results are not necessarily at- tained at the expense of other resulting disadvantages of greater importance. The preservation of the voluntary element, however, is the means through which are obviated many of the obstacles to the practical working of a compulsory mimiinum wage. Under the system of voluntary co-operation, employers cannot be driven out of business; neither will the prices of their products be increased so as to deprive the recipient of a minimum wage of its benefits; neither will the minimum wage tend so much to become the maximum wage. Under a system of co-operation, the necessary adjustments, more in accordance with the natural economic law, will be worked out, and thereby artificial and unfair discrimination between competitors in the same industry will tend to be obviated. The argument for the voluntary co-operative establishment of a mimimum wage, whether as an ethical or a humanitarian measure, is far from answering the objections based upon economic and constitutional grounds to the expediency or prac- ticability of a legislative mimimum wage. THE MINIMUM WAOe AS AN ECONOMIC MEASUEE There are certain rules of economics which, when formally expressed, are merely the statement of certain natural laws of industrial science and of the science of trade and commerce. Such economic laws are controlling in the same way, even if not to the same extent, as natural laws of physics are controll- ing in respect of the phenomena of nature to which they are 51 applicable. Disregard or violation of such natural law, wheth- er it be economic or physical, tend in all instances to cause, and in many instances inevitably cause, disturbance and even dis- aster. Sometimes the disturbance is merely local or temporary, and its effects may be overcome or remedied by either natural or artificial adjustments. When, therefore, a course of action is proposed which from its very nature is in conflict with natural economic laws, it is wise to proceed with caution, lest the re- sulting disturbance bring injurious effects greater than the proposed or possible benefits. The solution of any such ques- tion cannot be based solely upon the desires, necessities or the resulting benefits to any particular individual nor, indeed, to any particular class of individuals. There is no system of governmental or industrial organization or policy which can be so perfectly organized and administered that, with all their varying talents, degrees of efficiency or of frailty, can act with equal benefit to all persons; or which even can fail to leave some individuals or some class of individuals not only without benefits, but with comparative disadvantage resulting from the system itself. The rule of measure of merit is "the greatest good to the greatest number." This is a rule not only of ethics and of economic law, but also of the law of governmental and legislative policy. Any artificial interference with the wages to be paid to labor in private employment is an interference with the natural economic law of supply and demand. It is also an interference with the natural economic law of industrial competition. This is true as to the compulsory establishment of a wage for labor, whether the fixed wage be a minimum or a maximum. A com- pulsory minimum wage, whether computed upon the basis of a sum adequate to provide a decent livelihood with reasonable comforts, or upon any other basis, has inevitably the tendency, to say the least, and, it must be admitted, in some cases it has the necessary effect, to disturb the natural conditions governed by the law of supply and demand, by the law of competition and by other economic laws. From this fact there have been urged with greater or less reason, and by some as insuperable, certain economic objec- tions to a compulsory minimum wage, as presenting obstacles 52 to its successful application in the modern industrial world. Examination of some of these objections will throw light upon the discussion with reference to the legislative minimum wage as applied in this country. ECONOMIC OBJECTIONS STATED 1. The first objection is, that it necessarily creates an arti- ficial discrimination in any occupation or industry to the dis- advantage of those employers subject to the fixed wage, and in favor of others who are competitors. A federal minimum wage statute would be impossible without changing our system of government and by amendment of the Federal Constitution. Such an amendment would forever do away with the well-estab- lished principle that there should be and has been reserved to the several States all the powers of self-government and of legislation touching internal affairs and business and the rela- tions between their citizens which are not properly powers of federal control and as such expressly imposed upon the federal government or which are not expressly prohibited to the states. So far, then, as concerns a minimum wage, the United States comprises forty-eight separate, competing sover- eign countries with widely varying conditions of employment and wage standards. The market for products of state industries, however, is not only nation-wide, but world-wide. In many industries the mar- gin of profit is so small that with the slightest disturbance of their extra-state market, the industry could not survive. If wages which are now fixed by competition and by the law of supply and demand were artificially raised in one locality, the competitors in other localities would control the price of com- modities and shut out of business those whose wage-rate was artificially kept above the rate made by their competitors. For the same reason similar results within a state would fol- low upon the enforcement of a minimum wage fixed for one city or locality, or for one class of cities or localities, as against a different wage for other localities. An artificial discrimination would be created as to any particular occupation or industry against the localities with higher wage and in favor of those with a lower one. Nevertheless, the minimum wage statute 53 generally contemplates just this sort of discrimination between different localities in the same state. The fact that the cost of living is different in different localities is not a justification for a lack of uniformity in the minimum wage. The employer in the industries located in the larger urban localities, while at a disadvantage with the higher minimum wage based upon the greater local cost of living, has the advantage of better transportation and market facilities; whereas, the employer in the country, with a less minimum wage than where the cost of living is more, has the disadvantage of his less central location, poorer transportation facilities and less advantageous market. The actual cost of production does not vary with the cost of living of the employe. A state compulsory minimum wage, therefore, based up- on the cost of living necessarily results in artificial and unfair discrimination. And this is true, even if fixed wages were established for the same industry or occupation throughout the state. But the result is even more disastrous when it is proposed, as under the present statute, to establish a minimum wage as to a certain occupation in one locality without at the same time interfering in any way with the wage in the same occupation in another locality." The discrimination resulting is all the more obnoxious to those industries in states where the margin of profit has already been cut by the establishment in practice of a higher wage rate than similar industries pay in other states. For instance, Massachusetts is near the head of the list of states in high wages. A still further raise of wages there, by com- pulsion, would create against the industries of that state a dis- crimination more serious than it would be in a state having already low wages. It would be a penalty upon that locality whose citizens by co-operation had raised the standard of its employes. Through their mail order departments Massachu- setts merchants are direct competitors in the same industries with the merchants of other large cities who pay less wages. Discrimination, which is unfair and which would tend to become destructive of industry, is, therefore, a valid economic objection to a compulsory mimimum wage. 2. The compulsory minimum wage would also necessarily tend to, and in many instances would, drive employers out of 54 business, by destroying profits or by turning profits into losses. This' would be the result of the artificial discrimination be- tween different localities, already noted. It would also be the natural result even where there was no local discrimination. From varying conditions affecting different industries, the mar- gin of profit varies greatly. Many employers are already so near the restrictive limit of profit that they could not continue if additional expense were added by increasing wages by com- pulsion. We may view such destruction of business as eco- nomically wrong, and we may view it as resulting in the taking of property for the benefit of the employe class without due process of law. The force of both these views is recognized by the advocates of the minimum wage who base the right of the employe to have from his employer at least a certain wage upon the generic right of the employe to receive, and the correspond- ing duty of the employer to furnish; at least a minimum living wage, and make that right of the employe paramount to any right of the employer. But, they argue, if the result is to "drive any employer or any industry out of existence, the tendency should be welcomed." The employer, individual or corporate, who may be unable to survive, and whose income from his in- vestment is destroyed by enforcement of the' minimum wage, is relegated to the class of undesirable citizens or of "soulless trades" whose extinction, as "social parasites," should be hast- ened. ( "Minimum Wage Legislation," by John A. Ryan, Catho- lic World, February, 1913. Also, Annals American Academy Political and Social Science, July, 1913 : "The Minimum Wage as a Legislative Proposal in the United States." by Prof. Lind- say, page 45). 3. Another inconsistent result, due to the inevitable work- ing of natural economic laws, is that the general enforcement of a minimum wage in any industry would necessarily result in increase in the price of the product or wares in the market. Such rise in prices would increase the necessary cost of living, which cost is to be the basis at which the minimum wage is maintained. Experience has shown that increase in price is generally greater than a proportionate increase in the expense, by reason of which prices are raised. The uncertainty of application of the compulsory minimum wage has to be guarded against and on account of that hazard the rise 55 in prices would' naturally be greater than that warrant- ed at any particular time by the then arbitrary increase in expense. The resulting change in the cost of living calls for a further increase in the minimum wage and that in its turn results in a further increase in the cost of living; and so, at least to certain limits, the tendency is to establish a sort of automatic lever acting at recurring intervals constantly to- wards a rise not only in wages, but also in prices, with the rise in one direction counteracting the effects of the rise in the other. That this is the necessary tendency, and to some extent the inevitable result, of a compulsory minimum wage, is admitted by its advocates. They say, however, not without reason, that the menace of such an effect is not as great in practice as indi- cated by theory. The laboring class, much less that portion of it directly affected by the minimum wage, does not constitute the entire class of consumers. The effect, therefore, on prices, they say, would not be to the fullest extent claimed by those who urge fully these economic objections. The distinction thus made seems to be sound; but in any event it has to be admitted that the resulting tendency would be to eliminate the beneficial effect upon the laborer of the minimum wage and to unsettle the basis upon which such wage is from time to time computed. A part of this same objection is, that the increased prices would, under economic laws, result in decreased demand for the product or wares in question and thereby diminish production. Diminished production in its turn is necessarily followed by diminished employment; and thus again the artificial inter- ference with the natural law of supply and demand would in this instance result in an artificial increase of the number of unemployed ; thereby decreasing, if not eliminating, the ultimate benefits to the laborer of a compulsory wage. 4. Again it is objected that the minimum wage, established by compulsion, while it might raise the wages of the lower classes of labor, would at the same time lower the higher wages paid under the present system to the higher classes of labor. In other words, the minimum wage would tend to become the maximum wage. This question was much discussed during the last political campaign in connection with the Third Term party platform for a minimum wage for women, to be estab- 56 lished by authority of the states and the federal government. President Wilson, in one of his campaign arguments, said with reference to this question : "If a minimum wage were established by law, the great majority of employers would take occasion to bring their wage scale as near as might be down to the level of the minimum ; and it would be very awkward for the working- men to resist that process successfully, because it would be dangerous to strike against the authority of the federal government." ("The Legal Minimum Wage,'' by James Boyle, Forum, May, 1913). The only logical remedy to obviate this and many of the ob- jections to the minimum wage would be the impossible one of establishing by law a general minimum wage scale for all classes of wage-earners. That the compulsory minimum wage would threaten existing trades union scales and the present standard of wages for all classes of labor, has been shown by the experience in Australia, where the tendency is for the established minimum wage soon to become the standard wage scale. The class of unthinking employes, as well as their voluntary protectors who are appar- ently uninformed of the economic significance of a statutory wage, overlook this objection. The skilled students of labor questions, including labor leaders of experience, agree that the warning given by President Wilson is well founded. The San Francisco Labor Council recently declared itself "opposed to the principle of establishing the rate of wages, whether for men or women, by legislation." Samuel Gompers, President of the American Federation of Labor, while favoring a living wage, opposes a legislative or compulsory minimum wage for wage earners in private employ. He says : "I recognize the danger of such a proposition. The minimum wage would become the maximum, from which we should find it necessary to depart." ("The Legal Minimum Wage," by James Boyle, Forum, May, 1913 ) . Mr Gompers also has stated with reference to the com- pulsory minimum wage : "I fear an outcome that has not been discussed, and that is, that the same law may endeavor to force men to work for the minimum wage scale, and when government compels men to work for a minimum wage, that means slavery." E. F. McSweeney, in American Labor Legislation Eeview, February, 1913.) 57 The objections, then, to the minimum wage are not all from the side of the employer. 5. Still another objection which involves many and varied difficulties is the fact that the compulsory minimum wage will not only throw out of employment entirely a large class of laborers dependent in whole or in part upon their earnings, but will maintain a barrier against the possible employment of all labor whose efficiency is below the standard of those entitled to the fixed wage. The employer cannot be compelled to, and he certainly will not voluntarily for any extended period, keep in his employ one whose efficiency is not up to or does not closely approach that measured by the minimum wage. Those below that standard would be gradually weeded out and after- wards kept out of employment. Under the present system those receiving a less wage than sufficient by itself to amount to a full living wage as defined, comprise generally those whose training, skill and experience are insufficient to enable them to give in return a service warranting the compensation of such wage. They comprise also those who by reason of indolence or other peculiar characteristics, inaptitude or indifference, can never reach the standard of accomplishment measuring up to the minimum wage. There are also those who, by reason of advanced years, fall below the standard required for the fixed wage. Then there are the hosts of those to whom employment in their earlier years is the main education and preparation for the power to earn, and whose employment for considerable periods at merely nominal or at comparatively low wages pro- vides for them the means, or assists them in the means, of sus- taining life while in the preparatory stages for their later work. Excluded altogether . from employment by reason of the mini- mum wage, they would be compelled at their own expense of time and money to school themselves to the point of efficiency measured by that wage. These and other classes would be barred from any wage-earning opportunity, some of them per- manently and some of them for long periods of time; and this deprivation of advantage would be accompanied by the burdens of preparation now shared between the employer and the em- ploye. It is true that the legislative minimum wage generally con- templates exceptions in favor of the weak, the aged, or those 58 otherwise physically incapacitated. The scheme does not, how- ever, provide in any way for the great mass of the unemployed which will be created and increased by its adoption. For this reason alone the results must be disastrous, at least until the same paternal government which has provided the minimum wage shall have provided for those who are thereby subjected to disadvantage and even to disaster. At the same time that the slow or inefficient or infirm worker is driven out of indus- try altogether into want and even pauperism, with the conse- quent deprivation not only to himself but to those dependent or partially dependent upon him, neither he nor those of his class can in this country ever look to a gradual betterment of their condition. The immigration of the lower class workers from Europe will continue to swell the hordes of the unem- ployed in this country. The arbitrary law of compulsory mini- mum wage, violating the law of supply and demand, will have the effect, as to every class of labor for whose benefit it is pro- posed, to decrease the demand at the same time that it multi- plies the supply. The inevitable result must be such a lack of balance and adjustment in the social and political forces of the nation that catastrophe will follow. No remedy or preven- tion for the result of the over-strain of natural forces will be found. PREREQUISITES TO A LEGISLATIVE MINIMUM WAGE Too many advocates of the minimum wage assume that it lies within the power of the State, through its legislature, to furnish a panacea for all evils experienced under the present wage sys- tem. They and their proposed beneficiaries assume, that once the Government fiat has been issued in legislative form, then immediate relief for all the lower classes of labor will come in the form of wages sufficient to maintain them in health and comfort. They do not consider, and if they do they blindly disregard the inevitable workings of the natural law of eco- nomics which from its very nature will not of necessity yield to statutory law. There are certain laws of nature, economic as well as physical, which are and will remain paramount to human, statute law. They are Nature's limitations upon the legislative power of man, and as such they are paramount law, without being subject to amendment, even more controlling than 59 the written prohibitions of our Federal Constitution are con- trolling upon the legislative power of the federal and state legislatures. Any state which sets up an artificial standard repugnant to economic law must, if it hopes ever to establish and enforce such standard, provide in advance for the neces- sary readjustments inexorably demanded by the natural law which is infringed, and for the remedies of evils incident to the displacements resulting from natural forces. The resulting evils of the enforcement of a compulsory wage standard, due to economic laws, have just been pointed out. They suggest the protective provisions desired and measures for which, so far as the State has the power, it would be the duty of the State to provide. The army of workers, male and female, with their families dependent upon them, who suf- fer from old age or from other misfortunes to which wage earners are liable and against which they have not them- selves been able to make adequate provision, including those who by the minimum wage are relegated, perhaps forever, to the class of the unemployed, should be insured in some way by the State against the disasters of such misfortune. Such in- surance may include (1) an adequate system of workmen's casualty compensation; (2) organized illness insurance, co- operative or obligatory to the extent of the legislative power of the State, including invalidity and old age benefits. One of the greatest needs for preliminary measures would be (3) providing for. the misfortune of non-employment, through official and throughly organized employment ex- changes, with bureaus collecting and reporting data with refer- ence to the employment needs of the different occupations and the number and locality of various classes of employes. Such organized efforts in behalf of labor have been established in England, including even insurance against unemployment made obligatory upon a large class of employes and industries. The next of the most important reforms to accompany or to precede minimum wage statutes should be (4) a comprehensive system in industrial trade education and for vocational guid- ance. These should be made not only a part of the public school system, but should be made the subject of special schools open to all present and prospective wage earners. By such means may be acquired, with less loss to the worker, that efficiency 60 which shall measure up to the standard of the established mini- mum wage. The State has no right to bar from employment the worker of less than ordinary ability, or to deprive him of paying for his tuition by a diminution of his wages through his preparatory period, as would be done by the compulsory minimum wage law, without providing, to some degree, at least, a substitute for the advantages of which he is deprived. Incidentally also, (5) should be the enactment and enforce- ment of proper eugenic laws, in order to diminish the perpetua- tion of defective traits, physical or moral. Next ( 6 ) should be retained, and if necessary, extended in scope, the present sys- tem, so far as proper, of protective labor laws limiting the age of children workers, and protecting not only children but also women and men as to hours of employment in dangerous or unhealthy occupations and as to sanitary and healthful con- ditions in all occupations. These are all necessary to promote efficiency and to diminish the tendency of the minimum wage law to increase the number of unemployed. (Annals Ameri- can Academy Political and Social Science, July, 1913, page 3 ; "The Minimum Wage as Part of the Program for Social Ee- form," by Henry E. Seager, Professor of Political Economy, Columbia University). But of primary importance as a preliminary remedial meas- ure ( 7 ) , there must be more effective and more stringent restric- tions upon immigration. All other reforms for the advance- ment of the employe and for the care of the unemployed will be worse than futile, while the gates at Ellis Island pour into this country a constantly arriving horde of the lower class of wage earners from Europe and other foreign countries. So long as the army of the unemployed and of the incompetent is recruited through the present unrestricted immigration, the evil results due to economic laws, of compulsory minimum wage will be increased and intensified. Mora than th..t, all attempts at remedies or readjustments, whether by the State or by organized co-operative effort, will be rendered futile. (Annals American Academy Political and Social Science, July, 1913, page 66 : "Immigration and the Minimum Wage," by Paul U. Kellogg, Editor of The Survey) . When these reforms are set in motion and made effective, and only then, would it be possible to expect any substantial benefits 61 from a compulsory legislative minimum wage. These consid- erations are entirely apart from the question of the practica- bility of any particular minimum wage statute, or of the con- stitutional power of the legislature to pass and have enforced any particular statute, or a minimum wage statute at all. THE EFFICACY OF PROMOTING CO-OPERATION To these objections upon economic grounds above enumerated might be added many others which have been urged ; but these are sufficient to show that the advisability of a compulsory minimum wage, though based upon a living wage, is not a self- evident or self-supporting fact. The questions involved are far- reaching. The objections shown by a consideration of natural economic laws are serious questions, to say the least. They must be answered satisfactorily before it is demonstrated that a compulsory minimum wage is either a practicable or wise policy. The economic objections do not apply to the same extent to a non-compulsory minimum wage, — that is, one which is worked out by individual and organized co-operation, or where even under a legislative minimum wage the practical effect is only to promote voluntary co-operation, — as they do to a compulsory wage in the United States. The success claimed for the minimum wage in New Zealand and Australia is not at all a conclusive answer. It has been in operation there only during times of prosperity. It must be considered an experiment until it is demonstrated that such laws can stand the stress of adversity. Neither has its success been demonstrated by the experience in Great Britain, where the minimum wage has been applied only to a few sweated indus- tries and also to workers in mines. The British expert, Mr. Ernest Aves, after a thorough investigation in Australasia, re- ported to his government as follows : "The evidence does not seem to justify the conclusion that it would be advantageous to make the recommenda- tions of any special Boards that may be constituted in this country legally binding, or that if this power were granted it could, with regard to wages, be effectively exercised." ("The Legal Minimum Wage," by James Boyle, Forum, May, 1913). 62 How much more difficult, then, would it be in this country, where the statutes of its legislatures are not at the same time the fundamental constitutional law. The question before the British Parliament as to a minimum wage statute was alone a question of policy or expediency. In this country the same question is involved and always at the same time the question of consistency with our system of government, expressly lim- iting legislative powers of the states or of the nation as against infringements of the right of contract, of personal liberty, and of the preservation of property rights. Another reason, as stated by Mr. Aves, for the inapplicability of the experiment, as applied in New Zealand or in Australia, to a country like Great Britain or the United States, is the fa'ct that there only a comparatively small number of workers have been or were intended to be affected by the minimum wage. So small is their number, he says, that it is "as though the whole machinery of propaganda and of the government were concentrated on a city somewhat smaller than Birmingham." ("The Legal Minimum Wage," by James Boyle, Forum, May, 1913). Mr. Aves says, too referring to results in New Zealand and Australia, that under the minimum wage law men find great difficulty in retaining situations when they pass middle age; and it becomes harder for the slow or inefficient worker to get a job, as the employers will not pay them the legal wage. Re- ferring to the system in Victoria, the Massachusetts Commis- sion on Minimum Wage Boards says that : "These special boards, although authorized to secure a 'living wage,' in practice have served rather to formulate common rules for a trade, to bring employes and employ- ers into co-operative rules and to provide suitable ma- chinery for the readjustment of wages and other matters to changing economic conditions." (See Report Massachu- setts Commission on Minimum Wage Boards, January, 1912, pages 14-15 ; "The Principle of the Minimum Wage," by A. C. Pijou, Nineteenth Century, March, 1913; "Mini- mum Wage and Its Consequences," by Sidney Brooks, The Living Age, May 11, 1912 ; "The Economic Theory of a Le- gal Minimum Wage," by Sidney Webb, the Journal of Po- litical Economy, December, 1912 ; "Massachusetts and the Minimum Wage," by H. LaRue Brown, Chairman of Mas- sachusetts Minimum Wage Commission, Annals Academy Political and Social Science, July, 1913, pages 13, 16, 17). 63 The system as so administered is not considered antagonistic to the interests of either the employer or the employe. Therefore, so far as the practical application of the statutory ininmium wage is concerned, any practical benefi- cial effects have been, not through the enforcement of its com- pulsory features, but by reason of the official promotion of co- operation between employers in raising the standard of wages. IV "Preponderant Opinion" It is now nearly four years since the question of the extent of the police power of the state was discussed by the Federal Supreme Court in the case of Noble State Bank v. Has- kell. Since then, two sentences, picked out of that decision and disconnected from their context or application, have been quoted as supporting every extreme theory repugnant to the fundamental principles of our constitutional system of govern- ment. They have been the solace and plaything of visionaries. They have been put forward as authoritative support, from the highest judicial tribunal, of every political vagary which has been advanced since they were uttered. From them the social- ist claims not only justification for his creed, but also a promise of the effective accomplishment of his ends, and this, too, by the instruments by which he has said he would work out those ends; because, under his construction, they would compel all constitutional protection to property to yield to the forces of a "preponderant opinion." The pseudo-reformer who confounds change with progress cites these excerpted sentences as author- ity in favor of his proposition to do away with all constitu- tional safeguards and to turn every judge and every judicial decision over to the arbitrary caprice of a temporary majority. Every possible change in the administration of the law or in our system of government is advanced not only as justifiable, but as feasible and consistent with constitutional law ; because, as it is alleged, these excerpts extend the limits of the police 64 power as theretofore established and make the police power of the respective states, without limit, paramount to every other constitutional consideration. In the same way they are cited by advocates of the constitu- tionality of the minimum wage statute as involving a new doc- trine with regard to the police power in accordance with Which all objections to the constitutionality of that statute are over- come. (Report Massachusetts Commission on Minimum Wage Boards, 1912, page 24; and "Minimum Wage Legislation," by John A. Ryan, Catholic World, February, 1913). These sentences are, in the words of Justice Holmes, who wrote the decision (Noble State Bank v. Haskell, 219 U. S., page 104, 111) : "It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the pre- vailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public wel- fare." What Justice Holmes said in the Oklahoma Bank case was no new doctrine of the police power, nor a rule extending any former doctrine. As he protests (in his opinion denying rear- gument; 219 U. S., p. 580) : "The analysis of the police power, whether correct or not, was intended to indicate an interpretation of what has taken place in the past, not to give a new or wider scope to the power." In a former case the Supreme Court, speaking through Jus- tice Brewer, had said what was intended to be the same, and to have the same application, as was stated by Justice Holmes in the Oklahoma case. With reference to the claim that a woman's peculiar physical structure and duties would make an employment in which she is required to stand for long hours hazardous and peculiarly hazardous to her as a woman, Jus- tice Brewer had said (Muller v. Oregon, 208 U. S., 412, 420-1) : "The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question pre- sented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify spe- 05 cial legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitu- tional questions, it is true, are not settled by even a con- sensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a per- manence and stability to popular government which other- wise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long con- tinued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowl- edge." There was no new principle and no extension of former prin- ciples announced nor intended to be announced in the Okla- homa Bank case. The question there was, as to the police power of the State of Oklahoma to regulate banking within the state and to provide guaranties under the authority of the State and under its direction against the insolvency of banks organized, maintained and operated with the sanction and under the authority of the State. It was held that the com- pulsory assessments, for the purpose of making up the guaranty fund, provided to be paid by the various banking institutions were, under all the circumstances, within the police power of the State. ' ' There is absolutely nothing in that case from which it can be argued that it is within the police power of a State to com- pel the payment of a minimum wage in connection with em- ployment in any occupation, without distinction as to kind, and especially when the basis of the attempted exercise of the police power is merely a personal need, — having no relation to the occupation or employment itself, — of the employe. While not controlling, the inquiry is here proper, whether the Minimum Wage Statute is one which is "put forth in aid of what is sanctioned by usage or held by the prevailing moral- ity or strong and preponderant opinion to be greatly and imme- diately necessary to the public welfare." I have already outlined the economic objections and the oppo- sition of representative public men, based upon such economic objections. One of these is a. recognized statesman, now 66 President of the United States. Besides others, I have cited the opinion of one who is so situated as to speak from experience, from scientific study and as an authoritative representative of labor. These are men, who in their respective spheres, have made a study of the question from its economic and political viewpoints, as well as from the viewpoint of public policy. I have outlined the views of the British expert, Aves, whose conclusions are based upon an extended official expert inves- tigation. I have also noted the conclusion of the only delib- erate official investigation of the question which has been made by any official body in the United States, the Massachusetts Commission on Minimum Wage Boards, which led to the adop- tion in the State of Massachusetts of a non-compulsory mini- mum wage. It is significant that the only compulsory mini- mum wage statutes were all passed by the Legislatures of 1913;— in Oregon (Chapter 62, Laws of 1913); Washington, (Chapter 174, Laws, 1913) ; Colorado, (Chapter 110, Laws of 1913); Wisconsin, (Sections 1729, s-1 to 12, Statutes 1913; Chapter 712, Laws 1913); Minnesota (Chapter 547, Genl. Laws 1913); California, (Chapter 324, Statutes 1913); and Utah, (Chapter 63, Laws of 1913). These were the same Leg- islatures which, as to most of them, showed, by other enact- ments and by proposals for constitutional amendments, that their attitude toward economic and constitutional questions was affected by the wave of extremism and radicalism which at that time was altogether too prevalent. Constitutional measures which those Legislatures, or many of them, proposed for adoption by the people, have since been discussed, deliber- ated upon, and have been demonstrated to be repugnant to the existing prevalent opinion of the electorate of those States. The Judicial Becall Amendment, which was proposed by a very large majority in the 1913 Legislature of Minnesota, was re- pudiated by the electorate of that State in the election of this Fall. So with the Recall Amendment in Wisconsin, the Initia- tive and Referendum in Minnesota, and, indeed, most of the amendments which were voted upon in these States under pro- posals adopted by the Legislatures of 1913. The fact that several State Legislatures have already enacted it, is not, therefore, any support of the claim that the compul- sory Minimum Wage is demanded or favored by a prevailing 67 public opinion. The extent of the existence of such statutes, is, nevertheless, an interesting fact; to be taken into considera- tion, however, only in connection with other facts. MINIMUM WAGE LEGISLATION IN THE UNITED STATES In the United States the methods contemplated by the dif- ferent statutes vary from the voluntary legislative minimum wage in Massachusetts to the arbitrary statutory wage estab- lished, without the intervention or investigation of a Commis- sion or Conference, by the legislature of Utah. The people of Massachusetts, through their legislature, approached this question in a judicial attitude, and with the utmost caution. Their conservatism did not spring from the prejudice of the propertied interests, but rather from the consciousness of an enlightened citizenship which recognized, after deliberate con- sideration and study, the difficulties presented by reason of the inevitable effects of natural, economic laws. They chose the method in the application of which the obstacles presented by the natural laws of business and of competition would be the most minimized. This, too, was only after a state com- mission under the legislative resolution of 1911 had spent a year in careful investigation followed by a full report of its findings and recommendations. (Report 1912 Massachu- setts Commission on Minimum Wage Boards). Following this report, the Massachusetts legislature of 1912 adopted a non- compulsory act which provided for investigation and recom- mendation by a Commission of a minimum wage for women and minors, and with power to publish their recommendations and the names of employers not submitting thereto. But even such power of publication could not exist until after full hear- ing and adjudication upon notice to the employer and with privilege to the employer to appeal to the courts to have ad : judicated the question as to whether the minimum wage rate imposed upon him was, under all the circumstances, fair and reasonable (Chapter 706, Acts 1912; and Chapters 330 and 673, 1913). That act recognized the fact that the principal efficacy of legislation is the promotion of co-operation in the effort to raise wages, and that a drastic compulsory act would result, not only in consternation among employers, but also in (38 discrimination and even in disaster to business, at the same time that it prevented the necessary readjustments which only co-operation would be adequate to bring about. The Nebraska statute of 1913 follows substantially that of Massachusetts (Chapter 211, Laws of 1913). Compulsory acts with penalties for refusal to comply with the order of the State Commission fixing the minimum wage, were passed by the leg- islatures of 1913 in Oregon, Washington, Colorado, Wisconsin and Minnesota. Also in California, together with a proposal for the adoption of a constitutional amendment authorizing a compulsory legislative minimum wage. These compulsory minimum wage statutes are generally upon the lines of the Oregon Statute. They apply to all occupa- tions. They all base the right to impose a minimum wage and the amount at which it may be fixed upon the individual needs of the employes. Except as to apprentices and minors, they all apply to women workers. Both civil and criminal penalties are provided, as in the Oregon Statute. The power to fix the minimum wage, as defined, is vested in a Commission. The Washington Statute (Chapter 174, Laws 1913) prohib- its employment of women workers "at wages which are not adequate for their maintenance" and authorizes the establish- ment of a minimum wage such "as shall be held to be reasona- ble and not detrimental to health and morals and which shall, be sufficient for the decent maintenance of women." The Colorado Statute (Chapter 110, Laws of 1913) applies to "any mercantile, manufacturing, laundry, hotel, restaurant, telephone or telegraph business." The minimum wage is fixed on the basis of what is adequate "to supply the necessary cost of living, maintain them in health and supply the necessary comforts of life." The Wisconsin Statute (Sections 1729, s-1 to 12, Statutes 1913; Chapter 712, Laws 1913) prohibits less than a "living wage," to any female or minor employe; which is defined to mean compensation by time or piece work or otherwise "suffi- cient to enable the employe receiving it to maintain himself or herself under conditions consistent with his or her welfare." The Minnesota Statute (Chapter 547, Genl. Laws 1913) pro- hibits any employer from employing any "worker" at less than a "living wage." "Worker" is defined to mean a "woman * * * 69 employed for wages" ; and it includes also minors, a woman or minor learner, and a woman or minor apprentice. "Living wage'' is denned as "wages sufficient to maintain the worker in health and supply him with the necessary comforts and con- ditions of reasonable life.'' The California Statute (Chapter 324, Statutes 1913) fixes the minimum wage as "the necessary cost of proper living and to maintain the health and welfare of such women and mi- nors." In Ohio in 1912 there was adopted a constitutional amend- ment authorizing laws establishing a minimum wage. In Utah (Chapter 63, Laws 1913) the Wage Commission feature of other state statutes is entirely eliminated, and the 1913 legislature passed a statute making it unlawful to em- ploy females at less than a specified rate for minors, another specified rate for adult learners and apprentices, and another specified rate for experienced adults. There is no distinction between different classes of employments, and a breach of the law by any regular employer is made a misdemeanor. Most of these statutes are made ostensibly under an assumed police power of the state to protect, through the minimum wage, the health and morals of the employes affected. They generally provide for a hearing upon notice to the employer before the fi- nal order of the Commission is promulgated fixing the minimum wage applicable to such employer, and with the right of appeal to the courts in case such final order shall be unsatisfactory. MINIMUM WAGE STATUTES IN OTHER COUNTRIES The legislative wage is not a new idea. It appeared first in the form of a maximum agricultural wage at several periods in the early history of England. These maximum wage stat- utes were the outcrop of the oppression of the lower classes, and particularly laborers, and in favor of the landed interests, which was indulged in from time to time by Parliaments not sufficiently representative of the common people. They were of the same unscientific class as statutes regulating the prices of land, of flour, of fuel, and of other necessaries of life. These odious statutes of labor, in the time of Henry VI and Edward III prohibited the laboring man from seeking employment out- 70 side of his own country, compelled him to work for the first em- ployer demanding his service, and punished him for any viola- tion. Keferring to these statutes, as well as to the modern mini- mum wage statutes, the Supreme Court of Indiana recently said (Street v.' Varney Electrical Co., 160 Ind. 338) : "In the very nature and constitution of things, legisla- tion which interferes with the operation of natural and economic laws defeats its own object, and furnishes to those whom it professes to favor few of the advantages expected from its provisions." From the beginning of the nineteenth century, English labor statutes have been framed for the protection of the laborer. These include the factory acts promoting safe and sanitary con- ditions for labor, limiting the hours for dangerous or unhealthy occupations, and the acts for workmen's compensation in case of casualty, and other measures, many of which in form or in spirit have become or are becoming statutory measures in this country. The statutory minimum wage, however, is a modern idea. It first appeared in Belgium in 1887 in the form of a minimum wage statute for laborers employed in public work. This, as we have seen, is far different, upon both economic and constitu- tional grounds, from legislating a minimum wage for private employment. In jurisdictions with constitutions, limited or un- limited, the power of the State has generally been recognized, to legislate as to the terms of labor contracts in which the State itself or any of its municipal subdivisions, arms of the State, should be a party. The first legislative minimum wage applying to private em- ployment was adopted in Victoria in 1896 and was soon fol- lowed by similar statutes in other Australian provinces and in New Zealand, and has been in force in England since January, 1910 (The Trade Boards Act, 9 Edw. 7, Chap. 22, adopted Oct. 20, 1909; Report Massachusetts Commission on Minimum Wage Boards, 1912, pages 14-161 ; Annals of Academy Political and Social Science, July, 1913, "The Minimum Wage as a Legislative Proposal in the United States," by Prof. Lindsay, pages 45-46, and "The Minimum Wage in Great Britain and Australia," by Prof. Hammond, pages 25-26 ) . These Austra- lian and English acts applied to both male and female em- 71 ployes. It should be kept in mind that there is no consti- tutional limitation of the power of Parliament in such mat- ters. When Parliament has determined the question of the expediency of a policy, its expression in statutory form be- comes both the statute and the constitution. The English Par- liament had the benefit of the experience of New Zealand and the Australian provinces, and also of the special investigation and report by the British expert, Aves, upon the results, theo- retical and practical, of such legislation in Australasia. As already shown, his report was that the real practical benefit of these statutes was to promote voluntary co-operation on the part of the employer (Eeport Massachusetts Commission on Minimum Wage Boards, June, 1912, page 14); and that the conclusion was not then (in 1909) justified that the recommen- dations of any special wage board should be made legally bind- ing in a country like England, or that such power, if granted, could be effectively exercised. He deemed these attempts in the Australian provinces and in New Zealand as yet mere ex- periments, even in those countries, and that their apparent success was due to the prevalence of good times since their adoption, and to the fact that they applied to a small, central- ized government, and were limited to only a very small number of workers, and thereby presented much less and entirely differ- ent difficulties of application from those which would be con- fronted in a country like England or the United States ("The Legal Minimum Wage," by James Boyle, Forum, May, 1913). England, therefore, proceeded cautiously, and the act of 1909 was applicable to only four trades in which much sweating existed, and it was also extended to all workers underground. The English statutes must still be considered experimental. They are being applied by thoroughly organized wage boards, but dissatisfaction is expressed, not so. much as to the rate of wages established, as to the system of the minimum wage, and not only by employers, but by employes. The adoption of a minimum wage in this country, beginning with the Massachutetts act of 1912, was borrowed, as was other labor legislation from England. It is obvious that the fact of the adoption of such legislation by England, and even of its practicability and enforcibility in that country, would not be conclusive of its practicability or enforcibility in this country. CJ. Its attempted application here is confined by the statutes to fe- males and minors, in order to make its proposed beneficiaries within a class sufficiently distinctive for the basis of some ar- gument in favor of justification for such legislation under the police power of the State. This is on the theory that women and minors are generally, as a class, weak in bargaining power, and peculiarly entitled to the protection of their health and morals through paternalistic legislation which could not be enforced here as to male adult workers (Annals American Acad- emy. Political and Social Science, July, 1913: "The Minimum Wage as a Legislative Proposal in the United States," by Sam- uel M. Lindsay, Professor of Social Legislation, Columbia Uni- versity; also, "The Minimum Wage in Great Britain and Aus- tralia,'' by Matthew B. Hammond, Professor or Economics and Sociology, Ohio State University). TEMPORARY PUBLIC IMPRESSION AS AGAINST SEASONED PUBLIC OPINION The "public opinion" which is to sanction or justify the exer- cise of the police power, is too often mistaken as indicated by what is merely the temporary public impression. As to any measure, even if a preponderant majority of the entire citizen- ship should for the time demand its passage and, after its pass- age, demand its enforcement, such fact does not constitute a justification for the measure in question. Measures of public interest and great decisions of the courts are often viewed in opposite ways, between one period of time and another. Ex- perience has shown that, while temporary public impression may be vacillating and erroneous, the public opinion which is formulated after experience, deliberation and enlightenment, generally settles itself upon correct lines. Public impression, en- lightened by time and consideration, evolves into the seasoned public opinion, the deliberate conviction of the citizenship; it then becomes the prevailing morality, the preponderant opin- ion, to which courts give consideration, but nevertheless not un- duly, in their decisions as to the constitutionality of legislation ostensibly enacted for the public welfare and put forth as meas- ures justified by the police power. There is not today any substantial prevalent public opinion either demanding or favoring a compulsory minimum wage in private employment as a public welfare measure, either through the exercise of the police power or otherwise. The only two political parties which are now left are united in their opposition to such measures and their objections are based not only upon constitutional grounds, but upon economic objections and upon public policy. The only parties which as organized political bodies or which through their representa- tive leaders, have advocated the minimum wage, are the Social- ist Party and the Third-Term Party. The recent elections have brought a refutation from the citizenship of the nation of the vagaries of those parties and of their leaders. This statement is not to inject politics into this argument. It is to emphasize the fact, that hue and cry for the extension of the police power is coincident with, and a part of, the tendency to eliminate constitutional safeguards; and that this tendency, at present too apparent, is only local and temporary, and that it is not indicative of the existence of that "preponderant opinion" which is worthy to be taken into consideration by the courts. The decision of the Oregon Supreme Court here in question, cites the opinion of certain writers, most of them obscure, in favor of the minimum wage. These are all opinions based upon the purely ethical view of the question. They mistake a purely philanthropic, altruistic duty for an obligation which may and should be enforced by statute, regardless of any economic or constitutional objections. Most of such views are urged with- out any consideration of the proper scope or limits of legisla- tive power. Conclusion The Oregon Minimum Wage Statute has the effect: (1) to create an arbitrary and unjustified discrimination (a) between employers of the same class and (b) between employes of the same class; (2) to deprive both the employer and the employe of the liberty of contract; (3) to take the property of the em- ployer for the benefit of other persons, either for their benefit as individuals or for the general public benefit thereby accru- 74 ing, and to destroy his profits and business; and (4) to de- prive the employe of employment and means of subsistence. The Statute, therefore, has the effect, as against the Plain- tiffs in Error, and each of them, to abridge their privileges and immunities as citizens of the United States and deprives them of their liberty and property without due process of law and denies them the equal protection of the laws, contrary to the XlVth Amendment of the Federal Constitution. It is not necessary to argue further in detail that the Statute lias all the effects just stated. As heretofore shown, in the sum- mary of the complaints which present the facts in these cases and in the summary of the decisions of the State Supreme Court, it is stated, without dispute in these cases, that the Stat- ute has, against these Plaintiffs in Error, and each of them, the effect to violate each of these prohibitions of the XlVth Amend- ment. But the decisions of the State Court, sustaining the validity of the Statute, are based on the police power of the State, the exercise of which, in pi»oper cases, it is recognized, may have the effect, indirectly or in some instances directly, to conflict with private, personal or property rights. It should be kept in mind, however, that these discriminations and damage to personal and property rights, arising out of the enforcement of such a law, are not merely theoretical but are serious and may be disastrous to the business or industry af- fected. As already shown, the enforcement of such a statute, by raising the normal expense account of the employer- affected, creates a discrimination against him and in favor of other em- ployers in the same occupation, situated not only in other lo- calities of the State, if the rates fixed vary in different locali- ties, but also in favor of his competitors located outside of the state where no such law, or where a different rate under a simi- lar law, is enforced. There results a tendency to depress an industry in one locality as against a similar industry in other localities, or in one state as against similar in- dustries in another state. The depression may be only to the extent of a diminution of profits. But it may, and in many cases probably would, extend to an entire deprivation of profits, and therefore the closing out of the business or industry affect- 75 ed. Employers whose expenses are thus increased cannot re- coup themselves by a rise in prices, because of competition in localities where business is not similarly affected. If such diffi- culties were overcome by a uniform minimum wage law, co- extensive with the markets controlling the prices of the product in question, then the cost of living tends to increase and at the same time, of course, the standard by which the minimum wage is computed also rises, with no resultant benefit to the wage earner. The legislative regulation of wages necessarily leads to a legislative regulation of prices. An arbitrary discrimination is also created between the employes themselves, without any legal basis for the dis- tinction made in the classes of employes, in the appli- cation to labor of the minimum wage. As we have seen, there can, under the Oregon statute, be given no consid- eration to the experience, capacity or ability of the dif- ferent employes to whom the minimum wage is applied. The basis of computation must be the same for all classes, and the standard of living must be taken as the same for all. No allowance can be made for the value to the employe of the op- portunity for practical instruction ; she is deprived of any wage until she shall reach the efficiency measured by the wage fixed. As we have seen, also, the result in any occupation will be to eliminate from employment all those whose efficiency is not proportionate to the minimum wage; for no employer can be compelled, and could not be expected, especially under vain threats of official compulsion, to pay for labor more than it is worth. As we have already seen, another resulting tendency is to make the minimum wage established also the maximum wage. At the same time that lower wages are artificially and by com- pulsion brought up to a minimum standard, the inevitable re- sult is to make the wages above the minimum remain sta- tionary, or be diminished to or towards the minimum. Such difficulty can be obviated only by the fixing of wages for all classes of labor, both minimum wages, and those above the ' minimum. This, of course, cannot be accomplished by legisla- tive enactment; although it has been done in certain occupa- tions! through the co-operative agency of trades unionism. The legislative minimum wage is antagonistic to trades unionism, 76 and by that I mean to the features of trade unionism which are generally recognized as proper and efficient. The Supreme Court of the United States must at some time, and very soon, set 'precisely the limits beyond which the police power of the State cannot constitutionally be exercised in regu- lating hours of labor. It will also rest with this court to set the limits for the exercise of the police power of the State in regu- lating prices, not only of labor in private employment, but of all other commodities in private transactions of trade and commerce. It is only the limits so fixed by the courts which will be regarded by legislatures. There is an increasing ten- dency on the part of legislatures, Federal and State, to disre- gard or to attempt to circumvent constitutional limitations. A local or temporary public impression is formulated over night into a statute. Indeed, as in the cases of these minimum wage statutes, many statutes palpably repugnant to constitutional limitations, are hastily put through the legislature of a State without any consideration on the part even of the legislators of their constitutionality, or, if any such consideration is given, they are put through in definance of constitutional considera- tions, in order that the authors of such statutes may curry favor with their constituents, Those legislators who fall into line in favor of the statute generally do so on the theory that it will be easier to explain to their constituents a vote in favor than it would be to explain a vote against. Moreover, such statutes, as in the case of these minimum wage statutes, are passed by legislatures without any demand of public opinion. It is safe to say that not five per cent of the voters of the States whose leg- islatures passed minimum wage statutes in 1913 ever gave any consideration to the subject until after the legislatures ad- journed and they found that such a statute had been passed. In this and similar ways, the tendency of the modern legisla- tor is toward an almost reckless disregard of constitutional lim- itations. He shirks the responsibility of gauging legislation by the rule of the Constitution and puts that responsibility en- tirely upon the courts. In many cases the object of the legisla- tor has been accomplished by the mere passing of the statute. He has made a record; and in many cases his selfish object is promoted, rather than otherwise, when his statute is afterwards 77 declared by the courts to be invalid. He then poses as a cham- pion of the "oppressed" and trys to accumulate further politi- cal capital by prating about a "Government by Judges" as a system of oppression. This tendency on the part of legislators to disregard their expressly limited powers has been rebuked by the Federal Su- preme Court. In the case of Knoxville v. Water Company (212 U. S. 1, 18), that court said : v _ "The Courts ought not to bear the whole burden of sav- ing propertv from confiscation, though, they will not be found wanting where the proof is clear. The legislatures and subordinate bodies, to whom the legislative power has been delegated, ought to do their part. Our social system rests largely upon the sanctity of private property, and that State or community which seeks to invade it will soon dis- cover the error in the disaster which follows." This minimum wage statute is one of those "errors," referred to by this court, which, if sanctioned by the courts, will lead to disaster ; for logically the right of the legislature to fix prices for labor in private employment must establish the principle by which the legislature may fix prices of all commodities. Fur- thermore, if it can fix a minimum wage it can also fix a maxi- It could be held more consistently that the legislature has the power to fix maximum hours as to private employments and as to all classes of workers, men and women, than it could be held that the legislature can fix minimum wages for women in pri- vate employment. The first step, which, as this court has held, was along lines consistent with the constitutional exercise of the police power, was the establishment of the power to fix maxi- mum hours in private employment in occupations of such a char- acter as made greater hours dangerous. Next, maximum hours for women were allowed to be fixed in certain occupations where the dangers of greater hours were peculiar to women. This is as far as this court has gone. It will soon be asked to declare, as a principle of constitutional law, that the legislature under its police power may fix maximum hours for women in all occupa- tions, irrespective of character. It will then be asked to extend the fixing of maximum hours to men in all private occupations. 78 Under the limitations of the police power of the State, as al- ready declared by this court, the fixing of maximum hours in all occupations and for all workers, men or women, would not be within the constitutional limits of the police power of the State. But even if such extension of the police power should be made, the principle established would be far different in kind and much less far-reaching than the principle involved in a mini- mum wage istatute for any class of workers. If once it be held that the police power of the State extends to the fixing of a mini- mum wage for women, whether in a limited class of employ- ments or in all occupations, there will be no logical objection to the constitutionality of a statute fixing prices. It is now claimed that the fixing of maximum hours, for instance for wom- en, is inadequate for their protection, unless it is accompanied by the power to fix a minimum wage for the same class. The fixing of a minimum wage, as has been shown above, increases the cost of production and must inevitably, to some extent at least, result in an increase of prices. But the increase of prices increases the cost of living and the cost of living is the basis of a statutory minimum wage. As soon as it is established as a proper statutory measure, it will be claimed that the minimum wage is inadequate to furnish the protection intended by it unless it be accompanied with the power to regulate prices, and that, as the statutory minimum wage is a regulation of the price of one commodity, there is no reason for denying the right to regulate the price of any other commodity. If the right of the legislature to establish a minimum wage in private employment is upheld, there can logically be no limit to the extent to which th^ legislative power may interfere with competition and with the conduct of all private business. It is obvious, without further argument, that the well recog- nized personal privilege and liberty of contract, both of em- ploye and employer, are diminished by the enforcement of the minimum wage statute. The resulting disadvantages are altogether, I believe, to the employe, more than to the em- ployer; but the fact that either of them is thereby prejudiced is sufficient to require a holding by the courts that the statute is void, unless it can be held as a proper exercise of the police power. 79 Manifestly, the enforcement of such statute has the effect to compel the private employer to contribute money for the bene- fit of others, whether these others be regarded as individuals or the general public. It results in an arbitrary assessment upon the employer for the benefit of others. This, and other effects of the law, including those already dis- cussed, make it repugnant to constitutional prohibitions 1 ; be- cause no theory of the police power can warrant its enforcement by the courts. This lack of warrant for claiming the power to enact and enforce this sort of legislation has already been shown. There is no attempt in this discussion to contravert the theory advanced upon an ethical basis, that every employe, has, as a part of his generic right to exist as a person, the natural and moral right to be furnished with sufficient sustenance to main- tain life and to maintain him in health and reasonable com- fort. This, however, is far from admitting that that natural right of his to receive either proves, or tends to prove, a corres- ponding duty on the part of one who happens to be his employer to furnish all that sustenance and means for life, health and comfort, or any part of it, except in so far as healthful and comfortable conditions of work, while employed, are concerned. The forces of the inexorable law of supply and demand and of other natural economic laws, cannot with impunity be defied by the legislative fiat of man. Eelief from their effects may be achieved, and to a large decree they may be overcome, by co- operative organization. Such co-operation may be promoted by proper constitutional measures; but the efficacy of any legislative enactment relating to a minimum wage is not so much from its compulsory features as it is from its encourage- ment and assistance to the co-operation of those more benevo- lently inclined or having a higher ethical sense. For this rea- son, the non-compulsory statutes of Massachusetts and Nebras- ka are based upon a scientific theory and consistent with and promotive of practical benefit for the classes who are intended as the beneficiaries of such legislation. A compulsory legislative minimum wage necessarily results in such disarrangement of the conditions of labor, trade, com- merce and industry, that the evils resulting require greater 80 remedial agencies for reform than are comprised in any reform attempted through the minimum wage itself. The State has no right to inject such disturbing elements as the compulsory minimum wage into the social and industrial life of its citizens, unless and until it has provided in advance the remedies for the resulting evils. It, must provide for the army of lower wage earners who are thereby rendered job-less. It must provide , special education for the occupations to which the minimum wage is to be applied. It must raise and maintain the lower class of laborers to the standard of efficiency established by the minimum wage. It must prevent, by stricter immigration laws, the influx into the labor markets of this nation of a continuous stream of incompetents. Until such immigration restrictions are established, no remedy for the evil conditions resulting from the legislative defiance of the natural law of supply and de- mand, can be adequately provided. The compulsory legislative minimum wage, particularly as contemplated by the Oregon statute of 1913, is not only in- advisable, because it is impracticable and unworkable, and be- cause it is inimical to the interests of both employes and em- ployers ; but it is also unconstitutional and cannot be enforced against those employers who do not choose voluntarily to sub- mit to the proceedings taken under it. The police power of the State is not a sufficient basis for such legislation. The regulation of hours or even of wages in public work has no relation to the question, because such regulations are supported upon a basis entirely apart from that of the po- lice power. The decisions sustaining those restrictions upon private employment which have been sustained in the case of particular employments in connection with particular classes of employes, with the distinction between employments which are hazardous and those which are not, and the distinction as to those which are hazardous to women, although perhaps not to other classes, — all these decisions show that the legisla- tive minimum wage in private employment cannot be based upon the police power. As already pointed out, the need of the employe in question, which it is made the duty of the employer to supply, is a need which does not arise out of the occupation in question, nor out of the connection of the employe in question with that occupa- 81 tion. It is a need which exists independently of the occupa- tion; because the need of an income sufficient to sustain life in health and comfort is a personal need, and not a need arising from the capacity of employe. Even if we assume that there is a natural moral right to have that need supplied, still, the duty to supply it does not rest and cannot be made to rest, as a legal duty, upon the employer. There are, therefore, lacking the elements upon which to base any such legislation. While the subjects of health, morals, comfort, and general social welfare, are, generally speaking, the subjects out of which arise the right of the State to exercise its police power in legislation, nevertheless, as has already been shown, the mere insertion in an act of the statement that its purpose is to promote health, morals or comfort, or any other elements of social welfare, does not make the act within the police power of the State. Neither does the mere fact suffice that the results obtained by the act would, in themselves, be promotive of the health, morals or comfort of the beneficiaries for whose advantage the act is intended. In order to impose upon a particular occupation or a particular employer the com- pulsory burden of contributing, either directly or indirectly, to his employe, whether by concessions or by cash payments, for providing for his health, morals or comfort, it must appear that the object sought to be accomplished by the act has some "real, substantial relation" to the occupation of the employer in question or to the employment in question. There is no such source or relation in the cases now under discussion ; for the need which is to be supplied does not arise from or in connection with the employment. The fact of employment, therefore, can- not be made the basis of compelling the employer to supply that need. The Oregon Statute here in question, so far as it establishes or authorizes the establishment of a compulsory minimum wage in private employment, is an attempt to exercise the legislative power of the State beyond the constitutional limits of the po- lice power. The Judgments of the Supreme Court of the State of Oregon here in question, and each of them, wherein that State Statute 82 is held to be valid, as against the contentions of the Plaintiffs in Error herein, should be reversed. Respectfully submitted, Rome G. Brown, Attorney for Plaintiffs in Error. Hbbenba On November 23rd, 1914— since this brief was first printed —the district court of Ramsey county, Minnesota, has declared the Minnesota Minimum Wage Statute unconstitutional. The Minnesota Statute, (Chapter 547, Genl. Laws 1913) in all its essential features and particularly those held by the Minnesota court to be repugnant to the Federal Constitution, is similar to the Oregon Statute. It establishes the "Minimum Wage Commission," composed of the State Commissioner of Labor with two others appointed by the Governor (Section 1). That Commission may investigate the "wages paid to women and minors in any occupation in the State" (Section 2). Em- ployers must keep a register of names, addresses and wages paid. (Section 3). Commission may hold public hearings at which all interested persons may appear and testify. (Sec- tion 4). If the Commission forms the opinion that one-sixth or more of the women or minors employed therein are receiving less than "living wages" the Commission may establish mini- mum rates of wages for said occupation. ( Section 5 ) . It may determine such wages, for women and minors of ordinary abil- ity and also for learners and apprentices, and issue its order, effective as to said occupation throughout the State, or within any area of jthe State if differences in cost of living warrant such restriction; which order shall be mailed to employers affected, posted by such employers and filed with the Commissioner of Labor (Section 6). The Commission may establish and appoint as to any occupa- tion an Advisory Board of thirty persons, one-third represent- ing employers, one-third employes and one-third disinterested ( Section 7 ) . Such Advisory Board may investigate and recom- mend to the Commission its estimates of the minimum wages sufficient for "living wages" in any occupation (Section 8) ; which estimates may be adopted by the Commission and made effective by its final order (Section 9). The Commission may change old rates and order new minimum rates ( Section 10 ) . Special licenses allowing employes to work at a less wage 82a 821) than the minimum ordered in any occupation, and under a special wage ordered as to such persons excepted, may be is- sued by the Commission, but such licenses shall not extend to more than one-tenth of the whole number of workers in any establishment (Section 11). Every employer in any occupation is prohibited from employ- ing any worker at less than the living or minimum wage so fixed. (Section 12). Discrimination against employes testi- fying prohibited (Section 13). A worker receiving less than the minimum wage ordered by Commission may recover the difference with costs and attorney's fees, notwithstanding any agreement to work for a lesser wage (Section 14). Sections 15 to 18 require Commission to enforce orders and make re- ports and provide for financing the Commission. Any employer violating any of the provisions of the Act is punishable by fine or by imprisonment ( Section 19 ) . "Living wage" or "minimum wage" defined as "wages sufficient to main- tain the worker in health and supply him with the necessary comforts and conditions of reasonable life." "Woman" means a female of eighteen years or over. "Minor" means a male per- son under twenty-one years or a female person under eighteen years. "Learner" and "apprentice" mean either a woman or minor. "Occupation" means any business, industry, trade or branch of a trade in which women or minors are employed ( Sec- tion 20). Under this Act the Minnesota Commission ordered and pro- mulgated certain minimum wages (detailed in the decision be- low) effective November 23rd, 1914. Two employers brought suits in the district court of Ramsey county for an injunction prohibiting the State Auditor from supplying funds for the Commission, and against the Commission itself from attempt- ing to enforce the order in question, on the ground that the Statute was repugnant to the XlVth Amendment of the Federal Constitution; and pending final determination, asked for tem- porary injunction. Such injunction was granted by decision filed November 23rd, 1914. Judge F. M. Catlin presided. The decision of the court, filed by Judge Catlin, is as follows : Decision This action (A. M. Ramer Company v. Eliza P. Evans, et al.) and the case o'f Williams v. Eliza' P. Evans, et al, which was submitted to the court at the same time and upon the same arguments, were both commenced in this court, as a necessary preliminary step in established court procedure, to obtain a con- 82c elusive determination, by an appellate court, of the serious ques- tion, whether Chapter 547 of the General Laws of Minnesota appioved April 26, 1913, entitled "an Act to establish a Mini- mum Wage Commission and to provide for the determination and establishment of minimum wages for women and minors" is a legitimate exercise of legislative power or transcends the fixed limitations of our fundamental law. After organizing pursuant to the provisions of this Act, a "Commission" composed of the defendants, did on October 23rd, 1914, promulgate two, so-called, orders to become effective No- vember 23rd, 1914, one of which purports to fix a minimum wage of $8.50 for women and minors "of ordinary ability ( exclusive of learners and apprentices)" engaged "in any mercantile, office, waitress or hair-dressing occupations" in cities of the second, third and fourth class, and the other purports to fix a minimum wage of $8.25 for women and minors "of ordinary ability (ex- clusive of learners and apprentices)" engaged "in any manfac- turing, mechanical, telephone, telegraph, laundry, dyeing, dry- cleaning, lunch-room, restaurant or hotel occupation" in cities of the second, third and fourth class. The Act and the orders issued thereunder created a radical and far-reaching innovation in tins state. Manifestly it will be necessary for employers of women and minors in all the enumer- ated occupations, to re-adjust their business arrangements to an untried standard. Manifestly many women and minors, in- capable of earning "the minimum wage" must lose their employ- ment. It would seem, therefore, that common fairness and public interests should require a court of equity to maintain the status quo until the ultimate determination of the constitutional ques- tions involved, especially when this Act itself ( Section 14 ) pro- tects the workers from loss, while on the other hand employers suffer inconvenience and injury by enforcement of the statute. Moreover, the act involved is drawn along the general lines of an Oregon Statute from which some of its provisions are taken ipdssimis verbis although the Oregon Act includes "minimum hours and standard conditions of labor" as well as "minimum wages." The validity of that Act is to be determined by the United States Supreme Court in a case there pending and to be submitted December 7th next, and the decision therein will doubtless dispose of all the main questions involving the Minne- sota Statute. With this decision in prospect, plaintiff's coun- sel suggested at the hearing hereof that defendants stipulate for a suspension of the Commission's so-called orders until the validity of the act is settled— allowing the commission otherwise to proceed with its work. However, the defendants refused to consent thereto. 82d All the facts and conditions cited in the foregoing are, however, insufficient alone to warrant a court of equity in grant- ing an injunction in this case, but they are not to be wholly ignored by the court in reaching its conclusions and have not been. Inasmuch as the decision of this court is as indicated, a mere step towards the determination of the case by a higher court, it will serve no useful purpose to here review or analyze the decisions cited bj counsel as bearing upon the constitutional questions involved, nor to indicate this court's lines of reason- ing nor to argue conclusions therefrom. Suffice it here to say that this court is of the opinion that Chapter 547 of the General Laws of 1913 is unconstitutional because : First : It delegates legislative power to an appointive com- mission and places in that commission a discretion as to wheth- er there shall be a minimum wage or not ; leaves it for the com- mission, as purely discretionary, to determine what (if any) such wage shall be and when, where and under what circum- stances it shall become effective, and under what circumstances and when a wage once fixed by it can be changed or repealed merely by virtue of its own orders; and further, it makes the Commission a sort of independent supervisor or pater familias of the women workers and their employers such as the State can- not lawfully become until the form of our government has been entirely changed. Naturally resulting from this delegation of such legislative discretion the orders issued as aforesaid by the Commission are indefinite, unequal in application and not uniform in operation (assuming for the illustration that in any given locality the cost of supplying "the necessary comforts and conditions of rea- sonable life'' is exactly the same for a telephone girl as for an office girl whose "living wage" is made greater) . Second: The statute necessarily abridges the right of in- dividuals to make contracts, interferes with the right of both employe and employer to contract for the labor to be furnished one by the other ; and it therefore violates the provisions of the 14th Amendment of the Federal Constitution and is invalid un- less it be a legitimate exercise of the police power of the State. But there is no reasonable foundation for holding this act to be necessary or appropriate to protect the safety, health or morals of working women nor is it reasonably calculated to promote the general welfare of the public in the manner claimed by its advocates. On the contrary, it is quite as likely in actual re- sults to increase both distress and immorality if morals are de- pendent on wages. Hence, it is not a valid police regulation and therefore the temporary injunction is granted. — Catlin, J. HppenMx Containing the following, all referred to in the foregoing brief : I. Extracts from the State Constitution of Oregon. II. Chapter 62, General Laws of Oregon for 1913. III. Opinion of Supreme Court of Oregon in the Stettler case. IV. Opinion of Supreme Court of Oregon in the Simpson case. 83 84 EXTRACTS FROM THE STATE CONSTITUTION OF OREGON Article 1, Section 10. No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation. Article 1, Section 18. Private property shall not be taken for public use, nor the particular services of any man be de- manded, without just compensation; nor except in case of the state, without such compensation first assessed and tendered. Article 1, Section 20. No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. Lord's Oregon Laws, 1910, Volume 1, pages 75, 79 and 80. II CHAPTER 62, GENERAL LAWS OF OREGON FOR 1913 An Act, To protect the lives and health and morals of women and minor workers," and to establish an Industrial Welfare Com- mission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act. Whereas, the welfare of the State of Oregon requires that women and minors should be protected from conditions of labor which have a pernicious effect on their health and morals, and inadequate wages and unduly long hours and unsanitary conditions of labor have such a pernicious effect; therefore, Be it enacted by the People of the State of Oregon: Section 1. It shall be unlawful to employ women or minors in any occupation within the State of Oregon for unreason- ably long hours; and it shall be unlawful to employ women or minors in any occupation within the State of Oregon under such surroundings or conditions — sanitary or otherwise — as may be detrimental to their health or morals; and it shall be unlawful to employ women in any occupation within the State 85 of Oregon for wages which are inadequate to supplv the nec- essary cost of living and to maintain them in health; and it shall be unlawful to employ minors in any occupation within the State of Oregon for unreasonably low wages. Section 2. There is hereby created a commission composed of three commissioners, which shall be known as the "Indus- trial Welfare Commission"; and the word "Commission" as hereinafter used refers to and means said "Industrial Welfare Commission"; and the word "Commissioner" as hereinafter used refers to and means a member of said "Industrial Wel- fare Commission." Said Commissioners shall be appointed by the Governor. The Governor shall make his first appoint- ments hereunder within thirty days after this bill becomes a law; and of the three Commissioners first appointed, one shall hold office until January 1, 1914, and another shall hold office until January 1, 1915, and the third shall hold office until January 1, 1916; and the Governor shall designate the terms of each of said three first appointees. On or before the first day of January of each year, beginning with the year 1914, the Governor shall appoint a Commissioner to succeed the Commissioner whose term expires on said first day of January; and such new appointee shall hold office for the term of three years from said first day of January. Each Commissioner shall hold office until his successor is appointed and has qualified; and any vacancy that may occur in the membership of said Commission shall be filled by appointment by the Governor for the unexpired portion of the term in which such vacancy occurs. A majority of said Commission- ers shall constitute a quorum to transact business, and the act or decision of such a majority shall be deemed the act or decision of said Commission; and no vacancy shall impair the right of the remaining Commissioners to exercise all the powers of said Commission. The Governor shall, so far as practicable, so select and appoint said Commissioners — both the original appointments and all subsequent appointments— that at all times one of said Commissioners shall represent the interests of the employing class and one of said Commis- sioners shall represent the interests of the employed class and the third of said Commissioners shall be one who will be fair and impartial between employers and employees and work for the best interests of the public as a whole. Section 3. The first Commissioners appointed under this act shall, within twenty days after their appointment, meet and organize said Commission by electing one of their number as Chairman thereof and by choosing a secretary of said Commission; and by or before the 10th day of January of 86 each year, beginning with the year 1914, said Commissioners shall elect a chairman and choose a secretary for the coming year. Each such chairman and each such secretary shall hold his or her position until his or her successor is elected or chosen; but said Commission may at any time remove any secretary chosen hereunder. Said secretary shall not be a Commissioner; and said secretary shall perform such duties as may be prescribed and receive such salary as may be fixed by said Commission. None of said Commissioners shall receive any salary as such. All authorized and necessary ex- penses of said Commission and all authorized and necessary expenditures incurred by said Commission shall be audited and paid as other State expenses and expenditures are audited and paid. i ' ' ' : Section 4. Said Commission is hereby authorized and em- powered to ascertain and declare, in the manner hereinafter provided, the following things: (a) Standards of hours of employment for women or for minors and what are unreason- ably long hours for women or for minors in any occupation within the State of Oregon; (ft) Standards of conditions of labor for women or for minors in any occupation within the State of Oregon and what surroundings or conditions — sani- tary or otherwise — are detrimental to the health or morals of women or of minors in any such occupation; (c) Standards of minimum wages for women in any occupation within the State of Oregon and what wages are inadequate to supply the necessary cost of living to any such women workers and to maintain them in good health; and (d) Standards of minimum wages for minors in any occupation within the State of Oregon and what wages are unreasonably low for any such minor workers. Section 5. Said Commission shall have full power and authority to investigate and ascertain the wages and the hours of labor and the conditions of labor of women and minors in the different occupations in which they are employed in the State or Oregon; and said Commission shall have full power and authority, either through any authorized repre- sentative or any Commissioner to inspect and examine any and all books and payrolls and other records of any employer of women or minors that in any way appertain to or have a bearing upon the questions of wages or hours of labor or conditions of labor of any such women workers or minor workers in any of said occupations and to require from any such employer full and true statements of the wages paid to and the hours of labor of and the conditions of labor of all women and minors in his employment. 87 Section 6. Every employer of women or minors shall keep a register of the names of all women and all minors employed by him, and shall, on request, permit any Commissioner or any authorized representative of said Commission to inspect and examine such register. The word "minor," as used in this act, refers to and means any person of either sex under the age of eighteen years; and the word "women," as used in this act, refers to and means a female person of or over the age of eighteen years. Section 7. Said Commission may hold meetings for the transaction of any of its business at such times and places as it may prescribe; and said Commission may hold public hear- ings at such times and places as it deems fit and proper for the purpose of investigating any of the matters it* is author- ized to investigate by this act. At any such public hearing any person interested in the matter being investigated may appear and testify. Said Commission shall have power to subpoena and compel the attendance of any witness at any such public hearing or at any session of any Conference called and held as hereinafter provided; and any Commissioner shall have power to administer an oath to any witness who testifies at any such public hearing or at any such session of any Conference. All witnesses subpoenaed by said Commission shall be paid the same mileage and per diem as are allowed by law to witnesses in civil cases before the Circuit Court of Multnomah County. Section 8. If, after investigation, said Commission is of opinion that any substantial number of women workers in any occupation are working for unreasonably long hours or are working under surroundings or conditions detrimental to their health or morals or are receiving wages inadequate to supply them with the necessary cost of living and maintain them in health, said Commission may call and convene a Conference for the purpose and with the powers of consider- ing and inquiring into and reporting on the subject investi- gated by said Commission and submitted by it to such Con- ference. Such Conference shall be composed of not more than three representatives of the employers in said occupation and of an equal number of the representatives of the em- ployees in said occupation and of not more than three dis- interested persons representing the public and of one or more Commissioners. Said Commission shall name and appoint all the members of such Conference and designate the chair- man thereof. Said Commission shall present to such Confer- ence all information and evidence in the possession or under the control of said Commission which relates to the subject, of 88 the inquiry by such Conference; and said Commission shall cause to be brought before such Conference any witnesses whose testimony said Commission deems material to the sub- ject of the inquiry by such Conference. After completing its consideration of and inquiry into the subject submitted to it by said Commission, such Conference shall make and transmit to said Commission a report containing the findings and recommendations of such Conference on said subject. Accord- ingly as the subject submitted to it may require, such Con- ference shall, in its report, make recommendations on any or all of the following questions concerning the particular occupation under inquiry, to- wit: (a) Standards of hours of employment for women workers and what are unreasonably long hours of employment for women workers; (ft) Standards of conditions of labor for women workers and what sur- roundings or conditions — sanitary or otherwise — are detri- mental to the health or morals of women workers and (c) Standards of minimum wages for women workers and what wages are inadequate to supply the necessary cost of living to women workers and maintain them in health. In its recommendations on a question of wages such Conference shall, where it appears that any substantial number of women workers in the occupation under inquiry are being paid by piece rates as distinguished from time rate recommend mimimum piece rates as well as minimum time rate and recommend such minimum piece rates as will in its judgment be adequate to supply the necessary cost of living to women workers of average ordinary ability and maintain them in health; and in its recommendations on a question of wages such Conference shall, when it appears proper or necessary, recommend suitable minimum wages for learners and ap- prentices and the maximum length of time any woman worker may be kept at such wages as a learner or apprentice, which said wages shall be less than the regular minimum wages recommended for the regular women workers in the occu- pation under inquiry. Two-thirds of the members of any such Conference shall constitute a quorum ; and the decision or recommendation or report of such a two-thirds on any subject submitted shall be deemed the decision or recom- mendations or report of such Conference. Section 9. Upon receipt of any report from any Con- ference said Commission shall consider and review the recommendations contained in sand reoort; and enid Com- mission may approve any or all of said recommendations or disapprove any or all of said recommendations; and sa^'d Com- mission may re-submit to the same Conference or a new Con- ference any subject covered by any recommendations so dis- 89 approved. If said Commission approves any recommendations contained in any report from any Conference, said Commission shall publish notice, not less than once a week for four succes- sive weeks in not less than two newspapers of general circula- tion published in Multnomah County, that it will on a date and at a place named in said notice hold a public meeting at which all persons in favor of or opposed to said recommenda- tions will be given a hearing; and, after said publication of said notice and said meeting, said Commission may, in its discretion, make and render such an order as may be proper or necessary to adopt such recommendations and carry the same into effect and require all employers in the occupation affected thereby to observe and comply with such recommendations and said order. Said order shall become effective in sixty days after it is made and rendered and shall be in full force and effect on and after the sixtieth day following its making and rendition. After said order becomes effective and while it is effective, it shall be unlawful for any employer to violate or dis- regard any of the terms or provisions of said order or to em- ploy any woman worker in any occupation covered by said or- der for longer hours or under different surroundings or con- ditions or at lower wages than are authorized or permitted by said order. Said Commission shall, as far as is practicable, mail a copy of any such order to every employer affected there- by ; and every employer affected by any such order shall keep a copy thereof posted in a conspicuous place in each room in his establishment in which women workers work. No such order of said Commission shall authorize or permit the employment of any woman for more hours per day or per week than the maximum now fixed by law. Section 10. For any occupation in which only a minimum time rate wage has been established, said Commission may issue to a woman physically defective or crippled by age or otherwise a special license authorizing her employment at such wage less than said minimum time rate wage as shall be fixed by said Commission and stated in said license. Section 11 Said Commission may at any time inquire into wa°-es or hours or conditions of labor of minors employed m anv occupation in this state and determine suitable wages and hours and conditions of labor for such minors. When said Commission has made such determination, it may issue an obligatory order in the manner provided for m Section 9 of this Act, and, after such order is effective, it shall be unlawful for any emplover in said occupation to employ a minor at less wages or "for more hours or under different conditions of labor than are specified or required in or by said order; 90 but no such order of said Commission shall authorize or permit the employment of any minor for more hours per day or per week than the maximum now fixed by law or at any times or under any conditions now prohibited by law. Section 12. The word "occupation" as used in this Act shall be so construed as to include any and every vocation and pursuit and trade and industry. Any Conference may make a separate inquiry into and report on any branch of any occupation; and said Commission may make a separate order affecting any branch of any occupation. Any Confer- ence may make different recommendations and said Commis- sion may make different orders for the same occupation in dif- ferent localities in the State when, in the judgment of such Con- ference or said Commission, different conditions in different localities justify such different recommendations or different orders. Section 13. Said Commission shall, from time to time, in- vestigate and ascertain whether or not employers in the State of Oregon are observing and complying with its orders and take such steps as may be necessary to have prosecuted such employ- ers as are not observing or complying with its orders. Section 14. The "Commissioner of Labor Statistics and Inspector of Factories and Work Shops" and the several offi- cers of the "Board of Inspection of Child Labor" shall, at any and all times, give to said Commission any information or statistics in their respective offices that would assist said Commission in carrying out this act and render such assistance to said Commission as may not be inconsistent with the per- formance of their respective official duties. Section 15. Said Commission is hereby authorized and em- powered to prepare and adopt and promulgate rules and regu- lations for the carrying into effect of the foregoing provisions of this act, including rules and regulations for the selection of members and the mode of procedure of Conferences. Section 16. All questions of fact arising under the fore- going provisions of this act shall, except as otherwise herein provided, be determined by said Commission, and there shall be no appeal from the decision of said Commission on any such question of fact ; but there shall be a right of appeal from said Commission to the Circuit Court of the State of Oregon for Multnomah County from any ruling or holding on a ques- tion of law included in or embodied in any decision or order of said Commission, and on the same question of law, from said Circuit Court to the Supreme Court of the State of Oregon. In all such appeals the Attorney General shall appear for and represent said Commission. 91 Section 17. Any person who violates any of the foregoing provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five ($25.00) dollars nor more than one hun- dred ($100.00) dollars or by imprisonment in the county jail for not less than ten days nor more than three months or by both such fine and imprisonment in the discretion of the court. Section 18. Any employer who discharges or in any other manner discriminates against any employee because such em- ployee has testified, or is about to testify, or because such em- ployer believes that said employee may testify, in any investiga- tion or proceedings under or relative to this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than twenty-five ($25.00) dollars nor more than one hundred ($100.00) dollars. Section 19. If any woman worker shall be paid by her em- ployer less than the minimum wage to which she is entitled under or by virtue of an order of said Commission, she may recover in a civil action the full amount of her said minimum wage less any amount actually paid to her by said employer, together with such attorneys fees as may be allowed by the Court; and any agreement for her to work for less than such minimum wage shall be no defense to such action. Section 20. Said Commission shall, on or before the first day of January of the year 1915 and of each second year there- after, make a succinct report to the Governor and Legislature of its work and the proceedings under this act during the pre- ceding two years. Section 21. There is hereby appropriated out of the general fund of the State of Oregon the sum of Thirty-five Hundred ($3500.00) dollars per annum, or so much thereof as may be necessary per annum, to carry into effect the provisions of this act and to pay the expenses and expenditures authorized by or incurred under this act. Filed in the office of Secretary of State, February 17, 1913. General Laws, Oregon, 1913, Ch. 62. 92 III OPINION OF SUPREME COURT OF OREGON IN THE STETTLER CASE Eakin, J.: (Stating facts.) • On February 17, 1913, the legislative assembly passed an act entitled: "To protect the lives and health and morals of women and minor workers, and to establish an Industrial Wel- fare Commission and define its powers and duties, and to pro- vide for the fixing of minimum wages and maximum hours and standard conditions of labor for such workers, and to provide penalties for violation of this act." The title is followed by a declaration of the evils that it is desired to remedy as follows : "Whereas, the welfare of the state of Oregon requires that women and minors should be protected from conditions of labor which have a pernicious effect on their health and morals, and inadequate wages and unduly long hours and unsanitary con- ditions of labor have such a pernicious effect; therefore, be it enacted by the people of the state of Oregon." The first sec- tion provides: "It shall be unlawful to employ women or mi- nors in any occupation within the state of Oregon for unreason- ably long hours; and it shall be unlawful to employ women or minors in any occupation within the state of Oregon under such surroundings or conditions — sanitary or otherwise — as may be detrimental to their health or morals ; and it shall be unlawful to employ women in any occupation within the state of Oregon for wages which are inadequate to supply the necessary cost of living and to maintain them in health; and it shall be un- lawful to employ minors in any occupation within the state of Oregon for unreasonably low wages." Then follows the crea- tion of the commission under the name of "Industrial Welfare Commission," to be appointed by the Governor, and provisions defining its duties. Section 4 provides: "Said commission is hereby authorized and empowered to ascertain and declare, in the manner hereinafter provided, the following things: (a) Standards of hours of employment for women or for minors and what are unreasonably long hours for women or for minors in any occupation within the state of Oregon ; • ( b ) standards of conditions of labor for women or for minors in any occupa- tion within the state of Oregon and what surroundings or con- ditions — sanitary or otherwise — are detrimental to the health or morals of women or for minors in any such occupation; (c) standards of minimum wages for women in any occupation within the state of Oregon and what wages are inadequate to 93 supply the necessary cost of living to any such women work- ers and to maintain them in good health; and (d) standards of minimum wages for minors in any occupation within the state of Oregon and what wages are unreasonably low for any such minor workers." Section 8 provides, among other things, that the "commission may call and convene a conference for the purpose and with the powers of considering and inquiring into and reporting on the subject investigated by said commis- sion and submitted by it to such conference. Such conference shall be composed of not more than three representatives of the employers in said occupation and of an equal number of the representatives of the employees in said occupation and of not more than three disinterested persons representing the public and of one or more commissioners," and the duties of such conference which shall report the result of its investiga- tions with recommendations to the commission. Section 9 provides that upon the receipt of the report from the confer- ence, and the approval of its recommendations, the commis- sion may make and render such order as may be proper or nec- essary to adopt such recommendations and to carry the same into effect, and require all employers in the occupation affected thereby to observe and comply with such recommendations and said order. The act contains other provisions giving the com- mission and conference power and authority to investigate the matters being considered, and that from the matters so deter- mined by the commission there shall be no appeal on any question of fact ; but that there shall be a right of appeal from the commission to the circuit court from any ruling or hold- ing on a question of law included or embodied in any decision or order by the commission, and from the circuit court to the supreme court. The defendants were duly appointed by the Governor as such commission. It thereafter called a confer- ence as provided, which reported to the commission, making certain recommendations, which were approved.; and based upon such recommendations, it made the following order : "The Industrial Welfare Commission of the state of Oregon hereby orders that no person, firm, corporation, or association owning or operating any manufacturing establishment in the city of Portland, Oregon, shall employ any woman in said establish- ment for more that nine hours a day, or fifty hours a week ; or fix allow, or permit for any woman employee in said establish- ment a noon lunch period of less than forty-five minutes in length ; or employ any experienced adult woman worker, paid by time rates of payment, in said establishment at a weekly wage of less than $8.64, any lesser amount being hereby declared inadequate to supply the necessary cost of living to such woman factory workers, and to maintain them in health." The amend- 94 ed complaint sets out all these matters; in greater detail, to which the defendants demurred on various grounds, the first of which raises the questions here discussed, namely, that "it does not state facts showing that the act and order com- plained of is an unreasonable exercise of the police power of the state." The demurrer was sustained, and the plaintiff elected to stand on the amended complaint. Judgment was rendered dismissing the suit, and the plaintiff appeals, Eakin, J.: (Opinion.) The purpose of this suit is to have determined judicially whether either the fourteenth amendment of the federal con- stitution, or section 20, article I, of the Oregon constitution is an inhibition against the regulation by the legislature of the hours of labor during which women may be employed in any mechanical or manufacturing establishment, mercantile occu- pation, or other employment requiring continuous physical la- bor ; or against the establishment of a minimum wage to be paid therefor. Some features of these questions are practically new in the courts of this country. There have been some utterances by the courts of last resort to the effect that it is such an inhibi- tion. Some of these cases relate exclusively to the limitation of the hours of employment, others to the wages to be paid on contracts with the state or municipality; but the cases so hold-i ing are based largely on the fact that such regulation deprives the individual of liberty and property without due process of law, namely, that it is not within the police power of the state and violates the liberty of contract. The first case holding such a statute unconstitutional is Lochner v. New York, 198 U. S. 45 ; 25 Sup. Ct. 539 ; 49 L. Ed. 937, annotated in 3 Ann. Cas. 1133. A similar case is Ritchie v. People, 155 111. 98 ; 40 N. E. 454 ; 29 L. R. A. 79 ; 46 Am. St. Rep. 315. In the former case, in the appellate division of the state court, two of five judges were in favor of upholding the law; in the supreme court of the state three of the seven judges were so minded ; and in the United States court four of the nine judges favored such a dis- position of the case. The opinions in those decisions are based upon very different theories, showing that judicial opinion has not reached any settled or stable basis upon which to rest. It has only been during the last few years that the matter of legis- lation upon the question of the limitation of hours of labor has been agitated in legislative bodies or in the courts, The decisions of the courts have been based upon first impression and may be liable to fluctuation from one extreme to the other before the extent of the power of legislation on these ques- tions is finally settled. The entry of woman into the realm of many of the employments formerly filled by man, in which 95 she attempts to compete with him, is a recent innovation ; and It has created a condition which the legislatures have deemed it their duty to investigate and to some extent to govern. It is conceded by all students of the subject, and they are many and their writings extensive, that woman's physical structure and her position in the economy of the race renders her in- capable of competing with man either in strength or in en- durance. This is well emphasized by Justice Brewer in Mul- ler v. Oregon, 208 U. S. 412; 28 Sup. Ct. 324; 52 L. Ed. 551; 13 Ann. Cas. 957, an appeal from Oregon questioning the con- stitutionality of the law fixing the maximum hours of labor for woman, where he says : "That woman's physical structure and the performance of maternal functions place her at a dis- advantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. Still, again, history discloses the fact that woman has always been dependent upon man. He estab- lished his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. * * * Dif- ferentiated 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 * * * that her physical struc- ture and a proper discharge of her maternal functions — hav- ing in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The limitations which this stat- ute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not im- posed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. * * * This dif- ference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her." The conditions mentioned in the above quo- tation lie at the foundation of all legislation attempted for the amelioration of woman's condition in her struggle for sub- 96 sistence. In many of the states as well as in foreign coun- tries special study and investigation have been given to this question as to the effect of long hours of labor and inadequate wages upon the health, morals, and welfare of woman, with a view to remedy the evil results as far as possible. There seems to be a very strong and growing, sentiment throughout the land, and a demand, that something must be done by law to counter- act the evil effects; of these conditions. In the case of Lochner v. New York, supra, in which the constitutionality of the labor law of New York, limiting the hours of labor in bakeries, is questioned, Justice Peckham wrote the opinion holding the law invalid. Justice Harlan filed a dissenting opinion which should not be overlooked as the parts here quoted are general state-, ments of the law recognized by judicial opinion and not in conflict with the main opinion. Justices White and Day con- curred also therein; Justice Holmes dissenting. In that opin- ion it is said: "While this court has not attempted to mark the precise boundaries of what is called the police power of the state, the existence of the power has been uniformly recognized, both by the federal and state courts." In quoting from Patter- son v. Kentucky, 97 U. S. 501, he says: "It (this court) has nevertheless with marked distinctness and uniformity, recog- nized the necessity, growing out of the fundamental conditions of civil society, of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each state owes to her citizens. But neither the (14th) Amendment — broad and comprehensive as it is — nor any other Amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regu- lations to promote the health, peace, morals, education, and good order of the people. * * * Granting then that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment, but assuming, as ac- cording to settled law we may assume, that such liberty of con- tract is subject to such regulations as the State may reasonably prescribe for the common good and well-being of society, what are the conditions under which the judiciary may declare such regulations to be in excess of legislative authority and void? Upon this point there is no room for dispute; for, the rule is universal that a legislative enactment, federal or state, is never to be disregarded or held invalid unless it be, beyond ques- tion, plainly and palpably in excess of legislative power." The opinions of the justices who hold the maximum hours laws un- constitutional are based largely upon the fact that they violate the liberty of contract; holding that such acts are not within the fair meaning of the term "a health law," but are an ille- 97 gal interference with the rights of the individual and are not within the police power of the legislature to enact. The right of the state to prescribe the number of hours one may work or be employed on public works is generally upheld for the rea- son that the state may determine for itself what shall con- stitute a day's work of a laborer on public works, which vio- lates no individual right of property or liberty of contract. Perm Bridge Go. v. United Mates, 29 App. Cas. (D. C.) 452, 10 Ann. Cas. 720 ; Byars v. State, 2 Okla. Crim. 481, 102 Pac. 804, 22 Ann. Cas. 765; People v. Chicago, 256 111. 558, 100 N. E. 194, 30 Ann. Cas. 304. So it is held that work underground or in a smelter is unhealthy and may be regulated in ex parte Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47, 1 Ann. Cas. 66; Eolden v. Hardy, 169 U. S., 366; ex parte Kair, 28 Nev. 127, 425, 80 Pac. 463, 82 Pac. 453, 6 Ann. Cas. 893. In the Loohner case, supra, employment in a bakery and candy factory is held not to be unhealthy, and that a statute limiting the hours of labor therein is void. A statute fixing the hours of labor for women is held valid in State v. Muller, 48 Or. 252, 85 Pac. 855, 120 Am. St. Eep. 205, annotated in 11 Ann. Cas. 88, which case is af- firmed in 208 U. S. 412 and annotated in 13 Ann. Cas. 957. In Ritchie v. People, supra, the law limiting hours of work for women was held void. However, in Ritchie & Co. v Way- man, 244 111. 509, 91 N. E. 695, 27 L. K. A. (N. S.) 994, such a law was held valid as within the police power of the legisla- ture; and again, in People v. Chicago, supra, and in People v. hlerding, 254 111. 579, 92 N. E. 982, the law was upheld. Thus it appears that Illinois has wholly receded from the decision in the case of Ritchie v. People, supra, and it may now be con- sidered as established that a statute which limits the hours of labor of certain occupations or for certain classes of per- sons for the protection of the health and welfare of society is within the police power of the state. Commonwealth v. Riley, 210 Mass., 387, 97, N. E. 367, 25- Ann. Cas. 388; State v. Somer- ville, 67 Wash. 638, 122 Pac. 324. It was said in People v. Elerding, supra, wherein a statute limiting the .working hours per day for males was held constitutional as a valid exercise of the police power : "That under the police power of the state the general assembly may enact legislation to prohibit all things hurtful to the health, welfare, and safety of society, even though the prohibition invade the right of liberty or property of the individual, is too well-settled to require discussion or the citation of authority. * * * While, in its last analysis, it is a judicial question whether an act is a proper exercise of the police power, it is the province of the legislature to deter- mine when an exigency exists calling for the exercise of this power. When the legislative authority has decided an exigency 98 exists calling for the exercise of the power and has adopted an act to meet the exigency, the presumption is that it is a valid enactment, and the courts will sustain it unless it appears beyond any reasonable doubt, that it is in violation of some con- stitutional limitation." On the same subject it is said in Lochner v. New York, supra, quoting from Jacobson v. Massa- chusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, relating to the vaccination statute, that "the power of the courts to re- view legislative action in respect of a matter affecting the general welfare exists only 'when that which the legislature has done comes within the rule that if a statute, purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is beyond all question a plain, palpable invasion of rights secured by the fundamental law." * * * If there be doubt as to the validity of the statute that doubt must there- fore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the respon- sibility for unwise legislation." In re Spencer, 149 Cal. 396, 9 Ann. Cas. 1105, it is said : "The presumption always is that an act of the legislature is constitutional, and when this de- pends upon the existence or non-existence of some fact, or state of facts, the determination thereof is primarily for the legis- lature, and the courts will acquiesce in its decision, unless the error clearly appears." The legislative power of the state is not derived by grant of the constitution, but exists as to all subjects not inhibited by the state or federal constitution. There is only one federal inhibition urged against this stat- ute, namely: "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction an equal protection of the law." Fourteenth amendment. It may probably be conceded that the public welfare statute in question here violates this clause as abridging privileges of citizens if it can not be jus- tified as a police measure; and we will assume, without enter- ing into a discussion of that question or citation of authorities, that provisions enacted by the state under its police power that have for their purpose the protection or betterment of the public health, morals, peace, and welfare, and reasonably tend to that end, are within the power of the state notwithstanding they may apparently conflict with the fourteenth amendment of the federal constitution. So that the first and principal question for decision is wheth- er the provisions of the act before us are within the police power of the state. Professor Tucker, in 8 Gyc. 863, says: 99 "Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy, in a broad sense, demands, for the benefit of society at large, regulations to guard its mor- als, safety, health, order, or to insure in any respect such eco- nomic conditions as an advancing civilization of a highly com- plex character requires." This is a comprehensive definition and we will accept it without further detailed analysis or cita- tion of authority. As will appear from the cases cited above we can accept as settled law statutes having for their purpose and tending to that end provision for a maximum hours law of labor for employees upon public works, a maximum hours law for women and children employed in mechanical, mercan- tile, or manufacturing establishments, a maximum hours law for laborers in mines or smelters, a law fixing minimum wages for employees upon public works. The latter is held in Malette r. Spokane, (Wash.) 137 Pac. 500, even where the expense is borne by private individuals, so that the only question for de- cision here is as to the power of the legislature to fix the minimum wage in such a case. We use the language of Mr. Malarkey : "The police power, which is another name for the power of government, is as old and unchanging as government itself. If its existence be destroyed government ceases. There have been many attempts to define the police power and its scope ; but because of confusing the power itself with the chang- ing conditions calling for its application, many of the defi- nitions are inexact and unsatisfactory. The courts have lat- terly eliminated much of this confusion by pointing out that, instead of the power being expanded to apply to new conditions, the new conditions are, as they arise, brought within the im- mutable and unchanging principles underlying the power. When new conditions arise which injuriously affect the health or morals or welfare of the public, we no longer say that we will expand the police power to reach and remedy the evil. Instead we say that a new evil has arisen which an old princi- ple of government— the police power— will correct," If the statute tends reasonably to accomplish the purposes intended by the legislature, it should be upheld by the court. Justice Harlan in Jacobson v. Massachusetts, supra, quoting from Vie- meister v. White, 191 U. S. 223, states: "A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts. * * * The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws 100 which, according to the common belief of the people, are adapt- ed to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action ; for what the people believe is for the com- mon welfare must be accepted as tending to promote the com- mon welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and with this fact as a foundation we hold that the statute in ques- tion is a health law, enacted in a reasonable and proper exercise of the police power." In speaking of the Oregon ten hour law, Chief Justice Bean, in the case of State v. Midler, supra, says: "Such legislation must be taken as expressing the belief of the legislature, and through it of the people, that the labor of females in such establishments in excess of 10 hours in any one day is detrimental to health and injuriously affects the pub- lic welfare. The only question for the court is whether such a regulation or limitation has any real or substantial relation to the object sought to be accomplished, or whether it is 'so utterly unreasonable and extravagent' as to amount to a mere arbitrary interference with the right to contract. On this ques- tion we are not without authority." These are some of the grounds upon which maximum ten hours laws are sustained, and we have cited them here as applying with equal force to sustain the women's minimum wage law and as bringing it within the police power of the legislature. The state should be as zealous of the morals of its citizens as of their health The "whereas clause" quoted above is a statement of the facts or conclusions constituting the necessity for the enactment and the act proceeds to make provision to remedy these causes. "Common belief" and "common knowledge" are sufficient to make it palpable and beyond doubt that the employment of female labor as it has been conducted is highly detrimental to public morals and has a strong tendency to corrupt them. Elizabeth Beardsley Butler in her "Women of the Trades" says : "Yet the fact .remains that, for the vast bulk of sales girls, the wages paid are not sufficient for self-support; and where girls do not have families to fall back on, some go under- nourished, some sell themselves. And the store-employment which offers them this two-horned dilemma, is replete with op- portunities which in gradual, easy, attractive ways beckon to the second choice; a situation which a few employers not only seem to tolerate, but to encourage." The legislature of the 101 state of Massachusetts appointed a commission known as the Commission on Minimum Wage Boards to investigate condi- tions. In the report of that commission in January, 1912, it is said : ''Women in general are working because of dire nec- essity, and in most cases the combined income of the family is not more than adequate to meet the family's cost of living. In these cases it is not optional with the woman to decline low- paid employment. Every dollar added to the family income is needed to lighten the burden which the rest are carrying. * * * Wherever the wages of such a woman are less than the cost of living and the reasonable provision for maintain- ing the worker in health, the industry employing her is in re- ceipt of the working energy of a human being at less than its cost, and to that extent is parasitic. The balance must be made up in some way. It is generally paid by the industry employ- ing the father. It is sometimes paid in part by future ineffi- ciency of the worker herself and by her children, and perhaps in part ultimately by charity and the state. * * * If an industry is permanently dependent for its existence on under- paid labor, its value to the Commonwealth is questionable." Many more citations might be made from the same authorities and from such students of the question as Miss Caroline Glea- son, of Portland, Oregon, Louise B. More, of New York, Irene Osgood, of Milwaukee, and Kobert C. Chapin, of Beloit College. With this common belief, of which Justice Harlan says "we take judicial notice," the court cannot say, beyond all ques- tion, that the act is a plain, palpable invasion of rights secured by the fundamental law, and has no real or substantial relation to the protection of public health, the public morals, or public welfare. Every argument put forward to sustain the maximum hours law or upon which it was established applies equally in favor of the constitutionality of the minimum wage law as also within the police power of the state and as a regulation tending to guard the public morals and the public health. Plaintiff by his complaint, questions the law also as a viola- tion of section 20, of article I, of the constitution of Oregon. As we understand this contention it is that the order applies to manufacturing establishments in Portland alone, that other •persons in the same business in other localities are unaffected by it, and that it is discriminatory. The law by which plain- tiff is bound is contained in section 1 of the act quoted above. If he will, he can comply with this provision without any ac- tion by the commission, and it applies to all the state alike. The other provisions of the act are for the purpose of as- certaining for those who are not complying with it what are reasonable hours of labor and what is a reasonable wage in the various occupations and localities in the state to govern 102 in the application of section 1 of the act and for the purpose of fixing penalties for violations thereof. Counsel seem to con- sider the order of the commission as a law which the commis- sion has been authorized to promulgate, but we do not under- stand this to be its province. Section 4 provides : "Said com- mission is hereby authorized and empowered to ascertain and declare * * * (a) standards of hours," etc. By section 8 it is only after investigation by the commission, and when it is of opinion therefrom that any substantial number of women in any occupation are working unreasonably long hours or for inadequate wages, that it shall by means of a conference, ascertain what is a reasonable number of hours for work and a minimum rate of wages, when it may make such an order as may be necessary to adopt such regulation as to hours of work and minimum wages; and section 1 of the act shall be enforced on that basis. There is nothing in the record suggesting that there is a substantial number of women workers in the same oc- cupation as those included in the order complained of here working unreasonably long hours or for an inadequate wage in any other locality than Portland. Other cases as they are dis- covered are to be remedied as provided therefor, but the law is state-wide and it does not give to plaintiff unequal protection of the law nor grant to others privileges denied to him; neith- er does it delegate legislative power to the commission. It is authorized only to ascertain facts that will determine the localities, businesses, hours and wages to which the law shall apply. Counsel urges that the law upon this question inter- feres with plaintiff's freedom of contract, and refers to the lan- guage used in re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, to-wit: "Liberty, in its broad sense as understood in this country, means the right, not only of freedom from actual servitude, im- prisonment, or restraint, but the right of one to use his facul- ties in all lawful ways, to live and work where he will," etc!, as a change brought about by the larger freedom enjoyed in this country and guaranteed by the federal constitution and the constitutions of the various states in comparison with condi- tions in the earlier days of the common law, when it was found necessary to prevent extortion and oppression by royal procla- mation or otherwise, and to establish reasonable compensation for labor; but he fails to take note that by reason of this larger freedom the tendency is to return to the earlier condi- tions of long hours and low wages, so that some classes in some employments seem to need protection from the same con- ditions for which royal proclamation was found necessary. The legislature has evidently concluded that in certain localities these conditions prevail even in Oregon; that there are many women employed at inadequate wages — employment not secured 103 by the agreement of the worker at satisfactory compensation, but at a wage dictated by the employer. The worker in such a case has no voice in fixing the hours or wages, or choice to refuse it, but must accept it or fare worse. As said in Wells v. Great Northern Ry. Co., 59 Or. 165, 114 Pac. 92, 116 Pac. 1070, 34 L. E. A. (N. S.) 818, as to a baggage contract printed on the ticket of a passenger : "l n this case neither was it the subject of agree- ment between the company and the carrier .( passenger ) , but was imposed by the company as a condition of the sale of the ticket, and in signing the ticket the plaintiff was laboring under such an inequality of conditions as that he was com- pelled to enter into the contract, whether he would or not." In the dissenting opinion in the Lochner case, supra, it is said: "It is plain that this statute was enacted in order to protect the physical well-being of those who work in baker- ies and confectionery establishments. It may be that the stat- ute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal foot- ing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be that as it may, the statute must be taken as expressing the be- lief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who labor." Counsel suggest it is only quite recently that it has been seri- ously contended that the states may lawfully establish a mini- mum wage in private employment. This is undoubtedly true, and it may be that there is an occasion for it. The legislature seems to have acted on the idea that conditions have changed, or that private enterprises have become so crowded that their demands amount to unreasonable exactions from women and children; that occasion has arisen for relief through its police power; and that it has determined the public welfare demands the enactment of this statute. Justice Washington, in Ogden v. Scwnders, 12 Wheat. 269, says that the question which he has been examining is involved in difficulty and doubt, "but if I could rest my opinion in favor of the constitutionality of the law on which the question arises on no other ground than this doubt so felt and acknowledged, that alone would in my estima- tion be a satisfactory vindication of it. It is but a decent re- spect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt." Plaintiff further contends that the statute is void for the rea- son that it makes the findings of the commission on all qnes- 104 tions of fact conclusive, and, therefore, takes his property with- out due process of law ; relying on the decision of Chicago, etc., Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. Rep. 462, 33 L. Ed. 970, as conclusive upon that question. That case was an at- tack upon the law creating a railway and warehouse commis- sion, which was held valid by the state of Minnesota, but the United States court reversed the judgment there for the reason that the law does not provide for a hearing by the parties af- fected by the order, which is not due process of law, and that no notice and opportunity to be heard is provided for, which is the principal ground upon which the state court was reversed. Louisville & N. B. Co. v. Garrett, 34 Sup. Ct. Rep. 48, is a case very much in point, in which was had a bearing before the railroad commission of Kentucky, fixing freight rates between certain points within the state: The plaintiff attacked the le- gality of these orders because they were final and conclusive without right of appeal, and that by reason thereof plaintiff was deprived of property without due process of law. In de- ciding this question, the court said: "It (the law) required a hearing * * * and a determination by the commission wheth- er the existing rates were excessive. But on these conditions being fulfilled, the questions of fact which might arise * * * would not become, as such, judicial questions to be re-exam- ined by the courts. The appropriate questions for the court would be whether the commission acted within the authority duly conferred." Thus, in the present case, plaintiff was given the right and opportunity to be heard before the commission, as provided for by section 9 of the act. In the third subdi- vision of the opinion in the latter case it is held that even though the law gives no right of appeal from the final finding of facts, a party aggrieved is not without remedy as to matters that would be the appropriate subject of judicial inquiry, name- ly, if the rates fixed are confiscatory; but, where such a board has fully and fairly investigated and fixed what it believes to be reasonable rates, the party affected thereby has not been de- prived of due process of law. Sun Diego Land & Town Co. v. National City, 174 U. S. 739, 19 Sup. Ct, Rep. 804, 43 L. Ed. 1154; Spring Valley Water Works v. San Francisco, 82 Cal. 286, 22 Pac. 910, 1046 ;Louisville & N. R. Co. v. Garrett, supra. Many other cases are cited in the briefs of defendants fully sup- porting their contention. Due process of law merely requires such tribunals as are proper to deal with the subject in hand. Reasonable notice and a fair opportunity to be heard before some tribunal before it decides the issues are the essentials of due process of law. It is sufficient for the protection of his con- stitutional rights if he has notice and is given an opportunity 105 at some state of the proceedings to be heard. Towns v. Kla- math Comity, 33 Or. 225, 53 Pac. 604. We think we should be bound by the judgment of the legis- lature that there is a necessity for this act, that it is within the police power of the state to provide for the protection of the health, morals, and welfare of women and children, and that the law should be upheld as constitutional. The decree of the Circuit Court is affirmed. McBride, C. J., not sitting. Vol. 139, Pac. Rep., p. 743. IV OPINION OF SUPREME COURT OF OREGON IN THE SIMPSON CASE ' McBride, C. J., (stating facts) : This is a suit the object of which is to have judicially deter- mined the question whether an act passed by the legislature on February 17, 1913 (Session Laws 1913, chap. 62), and com- monly known as the minimum wage act, is inimical to the four- teenth amendment to the Constitution of the United States, or to section 20, article I, of the Constitution of Oregon. The defendants demurred to the complaint, The court sustained the demurrer, and dismissed the complaint. Plaintiff appeals. McBride, C. J. : (Opinion.) This suit is similar in substance and is brought for the same purpose as the case of Stettler v. O'Hara, 139 Pac. 743, in which Mr. Justice Eakin, speaking for the court, held the act in ques- tion to be a valid exercise of the police power, and not in con- flict with either the Constitution of the United States or of this state. It is suggested, however, on this appeal that in the case of Stettler v. O'Hara, before cited, this c6urt did not pass upon the contention raised in the pleadings and upon theargu- ment, that the minimum wage act is inimical to that portion of 'section 1 of the fourteenth amendment to the Constitution of the United States, which provides: "No state shall make or enact any law which shall abridge the privileges or immunities of citizens of the United States." While this particular clause of the amendment is not specially discussed, it was certainly intended by that opinion to express the conviction of this court 106 •that the act in question ^violated no ;pi?ecept of the fourteenth amendment, which it will he moted does not attempt to define the nature^ or extent ..of ttthe privileges and immunities therein protected. Having determined in the preceding case that the •pdlice power of the state 'legitimately extended to the right to prevent the employment of women and children If or unreason- ably long hours or at unreasonably small wages, and that the state had a right to use the machinery of a