CornelP University Library HD4918.F73 THE LIBRARY OF THE NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS AT CORNELL UNIVERSITY Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924001765597 OBSGON MINIMUM WA&E CASES Supreme court of the United States October term, I916 Nob. 25 and 26 Frank C. Stettler, plaintiff in error re. Sdwin 7. O'Hara, et al. constituting the Industrial welfare commission Elmira Simpson, plaintiff in error vs. Edwin V. O'Hara, et al. constituting the Industrial welfare commission Brief for defendants in error upon re-argument FELIX FRANKFURTER counsel for the Industrial welfare commission Assisted hy Josephine Goldmark publication secretary, National consumers' league New York city Reprinted by National consumers' league TABLE OF CONTENTS. Pagb ARGUMENT A 1 Statement of Cases Al Facts A3 Outline of Plaintiff's Claims A 5 Oregon was prohibited from enacting the legislation by: (1) The equal protection clause A 5 (3) The privileges and immunities clause A 5 (3) The due process clause A 6 Marshall's Canon A 7 The Issue A 7 Outline Argument A 9 (1) Oregon by this legislation aimed at "ends" that are "legitimate and within the scope of the Constitution" A 9 (3) The "means" selected by Oregon are "appropriate and plainly adapted" to accomplish these ends A 9 (3) No right of the plaintiff secured under the Constitution of the United States "prohibits" the use of these appropriate means so adopted by the State of Oregon to accomplish these legitimate public ends A 9 POINT I. "The End Is Legitimate and Within the Scope oe the Constitution" A 9 First. — ^The "welfare of the State of Oregon required 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" A 10 Second. — ^The purpose of the statute was to provide for the deficit between the cost of women's labor — i. e., the means necessary to keep labor going — and any rate of women's pay below the minimum level for living, and so eliminate all the evils attendant upon such deficits on a large scale A 13 POINT II. The Means Selected by Oregon "Are Appropriate" and "PLAINLY Adapted" To Accomplish the Legitimate End A 13 First. — From among the alternative means which Oregon might have adopted for accomplishing these public ends, the particular one adopted was reasonable and appropriate A 14 Second. — Even though this Court might think that some other means would have greater chance of effectiveness, it was open to Oregon to try this method unless it was affirmatively prohibited by the Constitution A 16 j; TABLB Of CONTENTS. POINT III. No Rights of Plaintiffs Secured Under the Constitution OF THE United States Prohibit the Use of the Means so ABOPTED BY THE State of Oregon to Accomplish These Legiti- mate Public Ends.. Pack A 17 First.— The so-called "liberties" of which the plaintiff claims to have been deprived were merely nominal and theoretical and not asserted bom fide. Therefore it was not "arbitrary," "wanton" or a "spoliation" for Oregon to allow great public interests to prevail over them "■ ^^ Second.— The alleged deprivations of property are either merely nominal and not bona fide like the so-called "liberties," or hypothetical and unsubstantiated; and therefore were not dealt with arbitrarily or wantonly or as a spoliation A 24 Third.— It is not arbitrary, wanton or a spoliation for the State to require Stettler to pay the cost of Simpson's labor if he chooses to use it A 28 Fourth.— The State's action was not arbitrary, wanton or a -spoliation because the State's own direct interest in these par- ticular wage contracts gave it a special justification for controlling them A 32 Fifth.— It is not arbitrary, wanton or a spoliation for the State to require Stettler to obtain a license from the Commis- •sion before he can buy labor at less than cost, because that is a reasonable means of preventing a possibility of "cut-throat" and unfair competition between manufacturers A 35 Sixth. — It is not arbitrary, wanton or a spoliation for the State to require the consent of the Commission before allow- ing an employee to sell labor below cost, because that is a reasonable means for preventing unfair competition between employees A 40 Seventh. — ^It is not arbitrary, wanton or a spoliation for the State to require the consent of the Commission before allowing a wage contract at below cost, because of the actual inherent inequality of bargaining power between the parties A 41 Bi'ghth. — It is not arbitrary, wanton or a spoliation for the State, to require the consent of the Commission before allow- ing wage contracts at below cost, because that is a reasonable exercise of the State power to minimize danger of unfair and oppressive contracts A 48 Ninth. — It is not arbitrary, wanton or a spoliation for the State to require the consent of the Commission before allow- ing wage contracts at below cost, because that is a reasonable exercise of the State's power to foster the productivity of industry A 49 TABLe OP CONTENTS. Ill Pagb PART FIRST.— Legislation Providing for the Establishment of a Minimum Wage for Women 1 1. THE FOREIGN LEGISLATION 1 Victoria 2 GrBat Britain 5 8. THE AMERICAN LEGISLATION 10 Arkansas 10 California 15 COI^RADO 24 Kansas 89 Massachusetts 37 Minnesota ii Nebraska _ 50 Oregon 55 Utah 65 Washington 66 Wisconsin 73 PART SECOND. — Experience upon which the Legislation Pro- viding for the Establishment of a Minimum Wage for Women is based. I. THE EVILS OF LOW WAGES 77 A. Bad Effect of Low Wages on the Pubuc Health 77 (1) Injuries to the Workers 77 (2) Injuries to the Next Generation 99 B. Bad Effect of Low Wages on Morals 114 C. Bad Effect of Low Wages on the Public Welfare 127 (1) Injuries to General Standards of Living. 127 D. Economic Aspect of Low Wages. 147 (1) No Present Standards for Women's Wages 147 (2) Wages and Irregularity of Employment 182 (a) Difference between Nominal Rates and Actual Earnings 183 (b) Seasonal Fluctuations 227 (c) Time Lost in Shifting 262 (3) The "Pin Money" Fallacy. Contribution of Work- ing Women to the Family Income 290 (4) Underpayment a Root Factor of Poverty 333 (5) Underpayment Destroys Reasonable Competitioti Among the Workers 330 E. The Financial Burden Imposed Upon the State 356 (1) The Deficit between Wages Paid and the Cost of Living 356 (a) General 356 (b) Some Statistical Studies 370 iv TABLE OF CONTENTS. Page (2) Paying the Deficit: Underpaying Industries are Sub- sidized 384 (a) The Direct Tax Upon the State : the Increase in Public Expenditures 384 (b) The Tax Upon the Workers or their Families.... 416 II. BENEFITS OF INCREASED WAGES 424 (1) Relation to Cost of Production 424 (3) Stimulus to Industrial Efficiency 475 (a) On the Part of Employers 475 (b) On the Part of the Workers 485 (3) Benefits to General Standards of Living 497 III. BENEFITS OF THE LEGAL MINIMUM WAGE 506 (1) Relation to Profits and Commercial Prosperity 506 (a) General 506 (b) The Effect on Export Trade 532 (2) Effect on Prices 539 (3) Stimulus to Industrial Efficiency 556 (a) On the Part of Employers 556 1. General Management 556 2. Elimination of Lost Time in the Factory 575 (b) On the Part of the Workers 581 (4) Benefit to Wages 597 (5) The Minimum Wage is not a Maximum 633 (6) Effect on Employment: Displacement of Workers 663 (7) Benefit to Industrial Peace 686 (8) Benefit to Competing Employers 694 (9) Increasing Scope of the Acts 710 (10) Success of the Acts 722 IV. COMPARISON WITH OTHER LABOR LEGISLATION.. 749 TABte OF CONTBNTS. V CASES CITED. Page Armour & Co. vs. North Dakota, 240 U. S., 510, 517 A 5 Atchison, etc.. Railroad vs. Matthews, 174 U. S., 96 A 31 Atlantic Coast Line vs. Riverside, 219 U. S., 186 A 46 Bacon vs. Walker, 204 U. S., 311 A 50 Barhier vs. Connolly, 113 U. S., 27 A 44 Booth vs. Illinois, 184 U. S., 425, 429 A 13 Booth vs. Indiana, 237 U. S., 391 A 45 Bosky vs. McLaughlin, 236 U. S., 385 A 44 Brass vs. North Dakota, 153 U. S., 391 A 46 Brazee vs. Michigan, 241 U. S., 346 A 43, 47 Butler vs. Perry, 240 U. S., 328, 333 A 47 Central Lumber Co. vs. South Dakota, 226 U. S., 157 A 14, 39 Chicago vs. Sturges, 222 U. S., 313 .'. A 32 Chicago & Alton Railroad vs. Kramberger, 238 U. S., 67, 77 A 14 Chicago, Burlington & Quincy Co. vs. McGuire, 219 U. S., 549 A 14, 45 Chicago Railway vs. Wellman, 143 U. S., 339, 344 A 20, 22, 25, 37 Chicago Railway vs. Zernecke, 183 U. S., 582 A 32 Chicago Street Railway vs. Anderson, 242 U. S A 35 note Davidson vs. New Orleans, 96 U. S., 97, 104 A 20 Des Moines Gas Co. vs. Des Moines, 238 U. S., 153 A 35 Don vs. Beidelman, 125 U. S., 680 A 46 Eighty-Cent Gas Case, 213 U. S., 19 A 25 Brie Railroad Co. vs. Williams, 233 U. S., 685, 699, 704 A 14, 45 Frisbie vs. U. S., 157 U. S., 160, 165 A 47 German Alliance Ins. Co. vs. Kansas, 233 U. S., 389 A 46 Grenada Lumber Co. vs. Mississippi, 217 U. S., 433 A 14 Grimth vs. Conn., 218 U. S., 563 A 45 Gundling vs. Chicago, 177 U. S., 183 A 21, 35, 28 Hadacheck vs. Los Angeles, 239 U. S., 394 A 5 Hatch vs. Reardon, 204 U. S., 152 A 20 Hawley vs. Walker, 232 U. S., 718 A 44 Holden vs. Hardy, 169 U. S., 366 A 23, 53 Hudson Water Co. vs. McCarter, 209 U- S., 349 A 49 Hurtado vs. California, 110 U. S., 516 A 53 Interstate Ry. Co. vs. Mass., 307 U. S., 79 A 19 Jacobson vs. Mass., 197 U. S., 11 A 15 Jeffrey vs. Blagg, 335 U. S., 571 A 5, 20, 45 Jones vs. Brim, 165 U. S., 180, 183 A 13, 31 Keokee Co. vs. Taylor, 334 U. S., 224 A 45 Knoxville Iron Co. vs. Harbison, 183 U. S., 13 A 45 Lehon vs. Atlanta, 242 U. S., 53 A 20, 21 Lemieux vs. Young, 211 U. S., 489, 496 A 14 L. &■ N. R. R. Co. vs. Mottley, 319 U. S., 467 A 46 Martin vs. District of Columbia, 305 U. S., 135, 139 A 30 vi TABLE OF CONTENTS. Page McLean vs. Arkansas, 211 U. S., 539, 548 A 14, 15, 45 Mount Vernon Cotton Co. vs. Alabama, etc., Co., 340 U. S., 30 A 49 McCulloch vs. Maryland, 4 Wheat, 316, 421 A 7 Miller vs. Wilson, 236 U. S., 373 A 44 Mondon vs. N. Y., N. H. & H. R. R., 233 U. S., 1 A 45 Mailer vs. Oregon, 308 U. S., 412 A 15, 44 Munn vs. Illinois, 94 U. S., 113 A 46 Mutual Film Corp. vs. Ohio Industrial Com., 336 U. S., 330 A 6, 31, 38 Mutual Loan vs. Martell, 323 U. S., 225 A 45 Noble State Bank vs. Hackell, 219 U. S., 104, 110-11 A 14, 19 Northern Pacific Ry. Co. vs. North Dakota, 216 U. S., 579 A 26, 27 Orient Ins. Co. vs. Daggs, 172 U. S., 557 A 46 Otis vs. Parker, 187 U. S., 606 A 45 Pacific, etc., Co. vs. Oregon Water Board, 241 U. S., 440... A 6, 49 Patterson vs. Bark Budorn, 190 U. S., 169 A 46 Philadelphia, etc., R. R. vs. Schubert, 224 U. S., 603 A 45 Plymouth Coal Co. vs. Pennsylvania, 232 U. S., 531 A 20 Price vs. Ill, 238 U. S., 446 A 35n Quong Wing vs. Kirkendall, 223 U. S., 59 A 5 Rail Coal Co. vs. Yaple, 236 U. S., 338 A 45 Rast vs. Van Deman, 240 U. S., 342, 357 „ A 5 Riley vs. Mass., 232 U. S., 671 A 44 St. Louis, etc., Ry. vs. Matthews, 165 U. S., 1 A 31 St. Louis, etc., Ry. vs. Paul, 173 TJ. S., 404 A 44 Schmidinger vs. Chicago, 226 U. S., 578 A 14 Second Employer^ Liability Cases, 223 U. S., 1 A 45 Simpson vs. O'Hara, 70 Ore., 261 A 4 Smyth vs. Ames, 171 U. S., 361 A 46 Soliah vs. Heskin, 223 U. S., 522 AS Soon Hing vs. Crowley, 113 U. S., 703 A 44 Standard Oil Co. vs. U. S., 221 U. S., 1 A 38 Stettler vs. O'Hara, 69 Ore., 519 A 4 Sturgis vs. Beauchamp, 331 U. S., 320 A 46 Tanner vs. Little, 340 U. S., 369 ~_ A 14 Taylor vs. Brown, 147 U. S., 640 " a 46 Vernon vs. Bethell, 3 Eden., 110, 113 ~"".".ZI."a 46 47 Welch vs. Swasey, 314 U. S., 91, 104 A 6 Western Union vs. Con. Milling Co., 318 U. S., 406 "" A 47 Western Union vs. Richmond, 324 U. S., 160, 167 A 6 Willcox vs. Consolidated Gas Co., 312 U. S., 19 ".. A 25 Williams vs. Johnson, 239 U. S., 414 a 4g INTRODUCTORY NOTE. For the first argument of this case in December, 1914, Part Second of this brief was prepared under the direc- tion of Mr. Louis D. Brandeis before his nomination by- President Wilson as associate justice of the Supreme •Court of the United States. For re-argument, it has been amplified and brought down to date, all publications since 1914 being placed first, under eadti separate head. SUPEEME COUET OF THE UNITED STATES, OcTOBEE Teem, 1916. Nos. 25 AND 26. Feank C. Stettleb, Plaintiff in Error, vs. Edwin V. O'Haea, et al., constituting the Industrial "Welfare Commission. Elmiba Simpson, Plaintiff in Error, vs. Edwin V. O'Haea, et al., constituting the Industrial "Welfare Commission. BRIEF FOR DEFENDANTS IN ERROR UPON RE- ARGUMENT. ARGUMENT. Statement of Cases. These are writs of error to review the decrees of the Supreme Court of Oregon, affirming the decrees of one of the Circuit Courts of Oregon, dismissing suits by Frank C. Stettler and Elmira Simpson, respectively, (hereinafter called plaintiffs), to vacate an order of the A2 Industrial Welfare Commission of Oregon and enjoin its enforcement. This order provided that no manufac- turing establishment in the City of Portland shall 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 de- clared inadequate to supply the necessary cost of living to such woman factory workers, and to maintain them in health." Facts. The facts, briefly, are these : Oregon on February 17, 1913, provided, among other things, that "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 condi- tions of labor have such a pernicious effect, there- fore Sec. 1. — It shall be unlawful to employ women in any occupation within the State of Oregon . . . for wages which are inadequate to supply the nec- essary cost of living and to maintain them in health. . . . Sec. 10. — For any occupation in which only a minimum time wage rate has been established, said commission [the Industrial Welfare Commission] may issue to a woman physically defective or crippled by age or otherwise, a special license author- izing her employment at such wage less than said minimum time rate wage as shall be fixed by said commission and stated in said license." (Chap. 62, Laws of Oregon, 1913, pp. 92, 97.) A3 The Act provides as the machinery for determining the adequacy of wages prevailing at different times and in different localities and trades, and for enforcing the above prohibition, an "Industrial Welfare Commission," of which the defendants are the first appointees. That Commission, pursuant to Sec. 8 of the Act, appointed a conference on wages, hours and conditions of work ia manufacturing establishments in Portland, the nine con- ferees consisting in equal numbers of representatives of the manufacturers and of the employees affected, and of the general public. Pursuant to a unanimous report of this conference (Stettler, E., 6-7; Simpson, E., 7-8) the Industrial Welfare Commission entered the following order: "No person, firm, corporation or association own- ing or operating any manufacturing establishment in the City of Portland, Oregon, shall employ any woman in said establishment for more than nin& hours a day or fifty-four hours a week ; or fix, allow or permit for any woman employee in said estab- lishment, 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 inade- quate to supply the necessary cost of living to sucb women factory workers, and to maintain them ia health" (Stettler, E., 7-8; Simpson, E., 8). The plaintiff, Stettler, is a paper box manufacturer in Portland. (Stettler, E., fol. 12.) The plaintiff, Simpson, is in his employ at a weekly- wage of $8.00. (Simpson, E., fol. 15.) The plaintiffs made no claim that Simpson was not an "experienced, adult woman worker" within the facta A4 as found by the Industrial Welfare Commission, and neither plaintiff invoked the provisions of Sec. 10 of the Act for a special license authorizing employment at less than the minimum time rate wage of $8.64 fixed by the Commission. Nor did either plaintiff seek to review the findings of the Commission as wholly unfounded in fact and therefore vdthout basis in law, which right of review is provided by Sec. 16 of the Act. On the contrary, with- out challenging the correctness of the facts found by the Commission or attempting to avail themselves of the provision for relief from such finding by license, the plaintiffs brought separate suits to enjoin the enforce- ment of the order of the Commission (Stettler, E., 5; Simpson, E., 5). The complaints were denied upon de- murrers, and decrees dismissing the suits were affirmed by the Supreme Court of Oregon (Stettler, E., 25-26; Simpson, E., 15-16). The opinions of the Supreme Court of Oregon are now reported in Stettler v. O'Hara, 69 Or., 519 (Stettler, E., 14 et seq.), and Simpson v. O'Hara, 70 Or., 261 (Simpson, E., 14). The Oregon Supreme Court sustained the con- stitutionality of the Act against attacks based both upon the Oregon and the United States Constitutions. As to the validity of the Act under the Oregon Con- stitution the decisions of the Oregon Supreme Court put an end to the matter. The eases are now here on objections based upon the Fourteenth Amendment. A5 Outline of Plaintiffs' Claims. « The plaintiffs make a threefold attack upon the sub- stantive provisions of the Act and the machinery for its enforcement. Oregon, it is claimed, was prohibited from enacting this legislation by the equal protection clause; the privileges and immunities clause ; the due process clause. (1) The equal protection clause may be dismissed sum- marily, at the outset of this brief, because it will be cov- ered by the brief of the Attorney-General of Oregon. Suffice it to say here that the case presents a simple application of the doctrine of appropriate classification now rendered commonplace by a long series of decisions {Quong Wing v. Kirkendall, 223 U. S., 59; Jeffrey v. Blagg, 235 U. S., 571; Hadacheck v. Los Angeles, 239 U. S., 394; Bast v. Vcm Deman, 240 U. S., 342, 357; Armour <& Co. v. T^orih Dakota, 240 U. S., 510, 517). In this instance there is a patent appropriateness in classi- fying the City of Portland differently from the rural communities in Oregon as to the cost of living and the different wage basis to maintain such living. (2) Similarly, the privileges and immunities clause is not separately discussed here because it involves no con- siderations separate from those raised by the due process clause. (Of. opinion in Simpson case, Simpson, E., 14.) *The Constitutional objection set up by the two plaintiffs are sub- stantially identical and call for substantially the same discussion. Where differences exist they will be noted where they occur. A6 In fact the clause is wholly irrelevant to the present case. Stettler and Simpson are here not asserting any rights peculiar to citizens of the United States as distinguished from citizens of Oregon, or, for that matter, from non- citizens of Oregon. (3) The due process clause may likewise summarily be disposed of in so far as it is invoked on the ground a. That the Act denies plaintiffs the right to have the reasonableness of the order judicially reviewed because there is in fact opportunity for judicial review similar "to that which this court has held adequate as tO' public utilities commissions and other administrative bodies. {Sec. 16 of the Act.) 'Pacific hive Stock Co. v. Oregon Water Board, 241 U. S., 440, is the last of a series of cases which disposes of this objection. b. That the Act confers legislative power upon the Commission and the conference. This contention is not fopen for discussion before this court. The extent of ^delegating such power upon administrative boards is for Oregon to determine and not controlled by the Four- teenth Amendment. {Welch v. Swasey, 214 U. S., 91, 104; Soliah v. Heskin, 222 U. S., 522; Western Union v. .Richmond, 224 U. S., 160, 167.) On its merits, it is no more "delegation" than has been repeatedly sanctioned by this Court (e. ff., MutuM Film Corporation v. Ohio Industrial Commission, 236 U. S., 230, 245, 246). The plaintiffs' contentions, therefore, reduce them- selves to a claim under the due process clause in its -central feature, namely, have they been deprived of lib- erty or property without due process of law? A7 The decision in this case will, in effect, determine the constitutionality of all the statutes in force in the United States relating to a minimum wage for women, namely, the laws of Arkansas, California, Colorado, Kansas, Massachusetts, Minnesota, Nebraska, Oregon, Utah, "Washington, Wisconsin, and will likewise prevent the trial of this legislation which has been awaiting, all over the United States, the fate of the Oregon Act. Marshall's Canon. We believe this case reduces itself, simply enough, to an application of Marshall's canon of constitutional con- struction to the complicated and extensive facts of mod- em industrial life and, more particularly, to those in Oregon. "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" (M'Culloch v. Maryland, 4 Wheat., 316, 421). The Issne. There is a specific state of facts, depending upon a specific scheme of legislation, before this Court in this case and not a general or vague theory of wage fixing by legislation. Throughout, our discussion will be focussed on this specific controversy. We believe the following accurately formulates the precise issue: An Act having been adopted by the State of Oregon, "dictated by the welfare of the State" to "protect women and minors" "from conditions of labor which have a pernicious effect upon their health A8 and morals" and from "inadequate wages," and which seeks these objects by forbidding the employ- ment, in any occupation, of adult experienced women workers at wages "inadequate to swpply the neces- sary cost of living to women workers and maintain them in health," and such mdnimmn. wage for manu- facturing establishments in the City of Portland hav- ing been ascertained and fixed by the Commission to be $8.64 per week and this amount, $8.64, conceded to\ be not in excess of said living necessities, and' having been so fixed in accordance with the findings of at conference for the particular industry, in which both the employers and employees were represented and had full opportunity for hearing; and the said Act having a provision (Sec. 10) that even the mini- mum, requiremients should not be required where the Commission should "issue to a woman physically defective or crippled by age or otherunse" a special license authorizing her em/ployment at such a wage less than said minimmn tim-e rate wage as shall be fixed by said commission and stated in said license; and said Act having a provision (Sec. 16) that "there shall be a right of appeal from, said commis- sion to the Circuit Coywrt of the State of Oregon for Multnomah County from, any ruling or holding on a question of law included in or emliodied in any deci- sion 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"; and the plaintiff, Stettler, having continued to employ in his paper box factory in Portland, adult experienced women workers, not shown or alleged to be "physic- ally defective or crippled by age or otherwise" at wages less than the said minimum of $8.64 per week, without having applied for or been denied such spe- cial license from the Commission; and the plaintiff, Simpson, havimg continued to accept from the said employer, Stettler, wages less than the said minimum, without having applied for or been denied such special license, and without now alleging or showing that she is "physically defective or crippled by age or otherwise"; are they or either of them entitled A9 to a reversal of the decrees of the Supreme Court of Oregon dismissing their com^plaints to enjoin the enforcement of the order of the Commission and re- fusing to declare the legislative Act arbitrary, wanton or spoliative, and therefore not in excess of the legislative power of the State, as limited by the Due Process Clause? Outline of Argnmexit. We shall contend: I. — Oregon by this legislation aimed at "ends" that are "legitimate and within the scope of the Constitution." II. — The "means" selected by Oregon are "appropri- ate and plainly adapted" to accomplish these ends. , III. — No right of the plaintiffs secured under the Con- stitution of the United States "prohibits" the use of these appropriate means so adopted by the State of Oregon to accomplish these legitimate public ends. POINT I. "The end is legitimate and within the scope of the Constitution." The first point in Marshall's canon is that the end sought by legislation must be "legitimate and within the scope of the Constitution." That this primary re- quirement is met in this ease cannot be, and practically is not denied, but we proceed briefly to explain the pur- poses sought by the Oregon legislature. A 10 First.— Charged with the responsibility of safeguarding the State's welfare, the Oregon legislature was confronted with the outstanding fact that the "welfare of the State of Oregon required 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." This statement of the preamble of the Act is based upon indisputable facts. In summary of the overwhelm- ing array of details which are contained in Part Two of this brief, it is only necessary to say here that the minimum cost in Oregon, corroborated by many other authoritative findings from all over the United States, for the rudimentary needs of the body, in the year 1912, as disclosed by investigation preceding this legislation, were: Budget No. 1. Minimum Possible Living Budget of Women Workers in the City of Portland. Oeegon. Per Year. Per Week Eoom and Board $300 $5.77 Clothing 130 2.50 Laundry Bills 25 48 Carfare 30 " ^58 Doctor's Bills 15 29 Total $500 $9^62 All Budget No. 2. Miniimim Possible Living Budget of Women Workers Outside of Portland, (Information Obtained from Ashland, Baker, Eugene, Forest Grove, LaGrande, Medford, Oregon City, Pendleton, Salem and Vale.) Per Year. Per Week Boom and Board $278.62 $5.36 Clothing 137.50 2.64 Laundry 16.00 31 Carfare 21.00 40 Doctor and Dentist. 18.00 35 Total $471.12 $9.06 These budgets appear at p. 366 of Part Two of this brief. This being the bare living cost for women factory workers in Oregon it was before the legislature that 48.1 per cent, of the factory workers in Portland were paid less than $8.00 per week (Part Two, p. 383) and 60.1 per cent, were paid less than $9.00 per week (Part Two, p. 383). These cases come up from Portland and therefore in- volve the conditions which requires budget No. 1. On this basis it appears that the Oregon Legislature was obliged to consider ways and means for meeting the following deficit. Deficit. Minimum weekly amount necessary to keep a nor- mal experienced woman factory worker (not "physically defective, or crippled by age, or otherwise") alive and in working order, in Portland, is, per week $9.62 The prevailing weekly amount which employers were paying such women for such working en- ergy averaged less than „ 8.00 Deficit between cost of living and weekly wage $1.62 A 12 Alarming public evils were found to have resulted, and threatened in increasing measure, from the wide- spread existence of this deficit. The public health of large sections of the present generation was suffering from undernourishment, bad housing conditions, and in- sufficient medical care. The coming generation was sim- ilarly threatened. Standards of morals were being low- ered. All that we call civilized life drifted gradually towards degradation. The economic efficiency of indus- try and its productiveness were wastefuUy limited, the fruitful use of industrial resources were restricted. In its immediate effects financial burdens were being im- posed upon the State which threatened excessive and unremunerative taxation for the support of charitable and quasi-charitable institutions of the alleviative rather than the preventive type. Industries supporting male workers were being drawn upon to assist in supporting women workers engaged in other industries, which were refusing to carry their cost. In a word, here, if ever, was presented a community problem, a problem affecting the State in its pervasive entirety. Second.— The purpose of the statute was to provide for this deficit between the cost of women's labor i. e., the means necessary to keep labor going— and any rate of women's pay below the minimum level for living and so to eliminate all the evils attendant upon such deficits on a large scale. No one claims, surely not the plaintiffs, that Oregon in this legislation was actuated by a desire to gratify any public venom or mob spirit against individuals in A 13 order to injure them. On the contrary, complaint is made either of the futility of Oregon's efforts, or of the eco- nomic unwisdom of what is admittedly a bona fide at- tempt by Oregon (and the other legislatures) to accom- plish the public ends indicated. In a word, the ends toward which this legislation was directed were the ends that are the very life of the State, namely, the health and civilized maintenance of this generation, and the healthy and civilized continuance of generations to fol- low. POINT II. The means selected by Oregon "are appro- priate" and "plainly adapted" to aecomplish the legitimate end. The second part of Marshall's canon reads as follows : "All means which are appropriate, which are plainly adapted to the end * * *." This states the broad scope of the question. But there can be no doubt that Marshall, if he were speaking to-day, would, without changing his central point of view, have phrased it in a slightly different form. Instead of saying "plainly adapted" he would have said "not plainly unadapted." This has been the spirit of the later formulas. The recurring adjectives used by the court are "arbitrary," "wanton" and " spoliative, " and this is the thought that underlies the decisions (e. g., Jones v. Brim, 165 U. S., 180, 182; Booth v. Illinois, 184 U. S., A 14 425, 429; Lemiew v. Young, 211 U. S., 489, 496; McLean V. Arkansas, 211 U. S., 539, 548; Grenada Lumber Co. v. Mississippi, 217 U. S., 433, 441-2; Nolle State Bank v. Haskell, 219 U. S., 104, 110-11; Chicago, Burlington & Qvmcy Co. v. McCuire, 219 U. S., 549, 567-8; Central Lumber Co. v. South Dakota, 226 U. S., 157, 160-1; Schmidinger v. Chicago, 226 U. S., 578, 588; Erie R. R. Co. V. Williams, 233 U. S., 685, 699, 704; Chicago <& Alton R. R. V. Tranbarger, 238 U. S., 67, 77; Tanner v. Little, 240 U. S., 369, 386). This case, however, does not raise any issue as to the possible differences resulting from the difference in philosophic emphasis between "plainly adapted" and "not plainly unadapted." The statute fulfills Marshall's requirement of appropriate correlation of means to end, judged from the angle of sincere respect for the exercise of legislative discretion and the corresponding restraint that keeps this Court from exercising its great powers of negation in the field of politics and policies, as dis- tinguished from the narrow ground of immutable prin- ciples which alone the due process clause protects. First. — From among the alternative means which Oregon might have adopted for accompUshing these public ends the particular one adopted was reasonable and appropriate. The object of Oregon was, as we have shown, to pro- vide for a disastrous deficit between women's labor cost and their labor pay, so as to eliminate grave public evils and also to promote decent standards of life. The pos- sible alternative courses of action which were open to the legislature in this situation may be summarized as fol- lows: A 15 (1) It could have refrained from action, and submit to the evils as inevitable human misfortunes, subject to no prevention, but only to alleviation through public and private charity. (2) It could have provided a direct subsidy out of the public treasury to pay a wage equal to the necessary cost of living, just as for other reasons of policy governments have granted subsidies to manufacture. (3) It could have adopted the Massachusetts method, which seeks to compel the necessary wage increase through intelligent self-interest and the pressure of pub- lic opinion rather than by statutory compulsion as the condition of doing business; or (4) It could have taken the method it did take, which involved a prohibition of the use of women's labor for less than its cost, except by special license from the com- mission. There was cumulative testimony, both in the belief of those entitled to express an opinion and in the actual records of experience, that these evils are not inevitable human misfortunes. Oregon was entitled to disprove that lazy gospel of fatalism. From the point of view of effectiveness in accomplishing its purposes (which is the only point of view material on this point of our brief), Oregon's choice as among the three remedial methods of effort surely was not "arbitrary" or "unrea- sonable. ' ' It had the support of a great body of public opinion (Jacobson v. Mass., 197 U. S., 11, 31, 34-5 ; Mutter V. Oregon, 208 U. S., 412, 420; McLean v. Arkansas, 211 U. S., 539, 548, 549), crystallized not only in the expres- A 16 sion of thinkers, but in the extensive and successful ex- perience of other countries with such legislation (Part Two, pp. 506-748, infra), in the fact of such legislation in other States (infra, p. 76), and in the voluntary and successful establishment of similar standards by manu- facturers (infra, Part II, pp. 424-506). This public opin- ion in Oregon is described by tVe Supreme Court of the State in its opinion (Stettler, E., fol. 39 et seq.). There is now before this Court not only the persuasive volume of accredited opinion and the experience of other countries (not unlike Oregon either in industrial condi- tions or legal traditions) vindicating the reasonableness, not to speak of the absence of unreasonableness, of Ore- gon's legislation, but also the proved effectiveness of Oregon's own experience for three years under the Act. This is now sought to be upset as beyond the State's power in dealing with evils which are yielding under the enforcement of this Act, and that, too, without any of those bad effects which were so recklessly predicted. Second. — Therefore, even though this Court might think that some other means would have greater chance of effective- ness, it was open to Oregon to try this method unless it was affirmatively prohibited by the constitution. A 17 POINT III. No rights of plaixitiS^s secured under the constitution of the United States prohibit the use of the means so adopted by the State of Oregon to accomplish these legitimate public ends. "The end" then is "legitimate" and "within the scope of the Constitution" and "the means" are "appro- priate and plainly adapted" (and a fortiori not plainly unadapted) to that end. The only remaining question is : are these means "prohibited" and do they "consist with the letter and the spirit of the Constitution?" It is not for the legislature of Oregon to demonstrate affirmatively that the Constitution explicitly authorizes the use of these appropriate means for accomplishing its public ends ; rather it is for the plaintiffs to show some explicit withdrawal of that power from it. We have seen that the only alleged obstruction to the power * ' exercised by Oregon, which calls for discussion, is the Due Process Clause in its substantive application: does Orgeon "de- prive" Stettler or Simpson of "life, liberty or property without due process of law?" There are two questions to every issue under the Due Process Clause and it will make for clarity if they are kept distinct. (1) Has there been deprivation of life, lib- erty or property? (2) If so, what is the justification, i. e., the "due process" of the deprivation? On the deprivation question, we assume, for the pur- pose of this discussion, that even the slightest interfer- ence with even the most capricious wish of an individual A 18 is a deprivation of "liberiy" (using the word in an un- qualified sense and not restricting its meaning so as to limit it to a "liberty" regulated by "due process"), and so we concede there has been deprivation here. So long as there is a deprivation of "liberty," it is immaterial whether there is also a deprivation of "property"; but in so far as unrestrained liberty of business action is to be regarded as also a property right, we likewise assume even a nominal deprivation of "property." The only point, then, for consideration here is whether the deprivation, such as it was, is "without due process of law." The Court has consistently recognized the futility of attempting an inclusive definition of "due process," but during forty years and more of judicial unfolding, the central ideas that inhere in this constitutional safe-guard have become manifest. A careful study of the long line of cases involving an interpretation of the Fourteenth Amendment, beginning with the Slcmghter-house Cases (16 Wall., 3^), shows two dominant ideas conceived to be fundamental principles : (1) freedom from arbitrary or wanton interference, and (2) protection against spolia- tion of property. ' ' Arbitrary, " " wanton ' ' and ' ' spolia- tion" are the words which are the motif of the decisions under the Due Process Clause. That is as close as we <}an get to it, and it is close enough when dealing with the great questions of government. What it means, what all the cases illustrate, is that the Fourteenth Amendment intended to leave the States the free play necessary for effective dealing with the constant shift of governmental problems, and not to hamper the States except where it A 19 -would be obvious to disinterested men that the action was arbitrary and wanton and therefore spoliation and un- justified. First. — The so-called "liberties" of which the plaintiffs claim to have been deprived were merely nominal and theore- tical and not asserted bona fide. Therefore it was not "arbi- trary," "wanton" or a "spoliation" for Oregon to allow great public interests to prevail over them. To be sure, the "liberty" protected by the Fourteenth Amendment leaves a man, within limits, to do what he likes and be sole judge of his wishes and interests, but before these rights can be entitled to constitutional pro- tection they must be susceptible of translation into terms of substance and human satisfaction and not merely theoretical caprices, unrelated to real action in a finite world. In balancing individual rights against the power of a State the Constitution is not "formal rather than vital," and its limitations are not mere "mathematical formulas having their essence in their form" rather than "organic living institutions transplanted from English soil" {Gompers v. United States, 233 U. S., 604, 610). This Court has avoided the scholastician which seeks to "press the broad words of the Fourteenth Amendment to a drily logical extreme" {Noble State Bank v. Haskell, 219 U. S., 104, 110; see also Interstate Railway Co. v. Massaehvtr setts, 207 U. S., 79, 86-7). "Constitutional rights like others are matters of degree and the great constitutional provisions for the protection of property are not to be pushed to a logical extreme, but must be taken to permit the inflation of some fractional and relatively small losses A 20 without compensation for some at least of the pur- poses of wholesome legislation." "These and other considerations were thought to outweigh a merely logical or mathematical possibility on the other side [i e., that the improvement might not benefit the land more, than its cost] " (Marfiw v. District of Columbia, 205 U. S., 135, 139). "In fact, it would seem from the character ot many of the cases before us and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the deci- sion of this Court the abstract opinion of every un- successful litigant in a State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded" {Dawidson v. New Orleans, 96 U. S., 97, 104). Examination of the present records shows that no bona fide claim of any really desired liberty of action is asserted, and it is only the claims that are both asserted and actually involved which can be considered {Chicago By. V. Wellman, 143 U. S., 339, 344; Hatch v. Reandon, 204 TJ. S., 152 ; Plymouth Coul Co. v. Pennsylvania, 232 U. S., 531, 545; Jeffrey Co. v. Blagg, 235 U. S., 571, 576; Lehon v. Atlanta, 242 U. S., 53). "What, then, is the "liberty" which these plaintiffs assert and show to be really curtailed? It is nothing but the "liberty" of not being required to get leave of the Commission before making contracts below a living wage. It is true that counsel claims they have been deprived of the actual liberty of making the contract itself, but this is to assume, without any basis whatever in either record, that the Commission would have rejected any applications that might have been made. Neither of the plaintiffs assert that his case is not A 21 within the scope of the license clause (Sec. 10) or that application has been made and refused. On the contrary, Stettler alleges that all his employees are "experienced, adult women," i. e., not learners or apprentices (Stettler, E., fols. 12, 19, 20), and that those he pays less than the minimum ' ' are incompetent by rea- son of age, inability or otherwise to earn greater wages than they are being paid" {Stettler, E., fol. 23); and, similarly, Simpson alleges that she "is an adult, experi- enced woman in the work aforesaid" {Simpson, E., fol. 15) and she makes no allegation that she is not within the class to whom licenses are available, i. e., those "physically defective, crippled by age, or otherwise." In the absence of some proof to the contrary, the Court will, of course, assume that the Commission will grant an appropriate request {Gundling v. Chicago, 177 U. S., 183, 186 ; Mutual Film Corporation v. Industrial Commis- sion, 236 U. S., 230, 245-6; Lehon v. Atlanta, 242 U. S., 53). Without any showing that applications must have been fruitless, or were made and denied, they are in no position to assert a loss of the right to do what for all that appears they might have been permitted to do. Their claim, however, is still more fragile. Stettler complains that the statute will necessarily restrict him "to the employment only of women who are capable of performing labor sufficient to earn said sum of $8.64 or more and said less competent employees will be prevented from laboring for the plaintiff" {Stettler, E., fol. 23). In other words, the so-called "liberty" which he claims is merely a "liberty" to employ $8 women for $8 instead of $8.64 women for $8.64. Indeed, it may well be A 22 that his business advantage and interest are to employ the smaller number of the more efficient, because that re- quires a smaller overhead, and may well lead to a superior output, and so would make for greater stability and in- creased profits (Part Two, pp. 581-596). Similarly the "liberty" which Simpson asserts is ficti- tious, theoretical and against her own interest. She makes the remarkable allegation that $8 is the "best wages and compensation for her labor that she is Me to receive, for any employment or labor which she is capable of performing" {Simpson, E., fol. 22). This carefully framed language avoids any allegation that her product is not worth $8.64 at least; and she also avoids any allegation that the act will deprive her of enuployment, but only of employment with Stettler {Simpson, E., p. 10). It seems plain that here is an "inspired" case filed not in her own interest, but in support of her employer's* (cf. Chicago By. v. Wellmun, 143 U. S., 339, 344, 346). It is true that the statute might possibly involve sub- stantial deprivations of "liberty" to Stettler if his object is to employ $8.64 women for only $8, or to Simpson if she could not obtain any employment at all at $8.64 ; but neither Stettler nor Simpson asserts any deprivation of such liberties. On the contrary, as above shown, they * "It may not be improper to suggest in this connection that although the prosecution in this case was against the employer of labor his defence was not so much that his right to contract has been infringed upon, but that the Act works a peculiar hardship to his employees, whose right to labor as long as they please is alleged to be thereby violated. The argu- ment would certainly come with better grace and greater cogency, from the latter class." {Holden v. Hardy, 169 U. S., 366, 369, 397.) A 23 ! either explicitly deny such, claims or carefully refrain from asserting them. Therefore, such deprivations, being not asserted by the plaintiffs in error, are not for consideration here and the question is reduced to the consideration of the purely fictitious liberties above discussed. It is proper for the Court in determining whether the liberty asserted is real to consider also the bona fides of the claim by which it is advanced. In this particular situation the Court cannot be blind to the fact that the only possible financial or business advantage which could accrue to Stettler from the invalidation of this Statute would be on the hypothesis that it prevents his get- ting not merely the labor of one particular woman rather than that of another, but getting labor at less than the true value of its product. Is not this Stettler 's real grievance, for it is preposterous to suppose that he would really exercise or value, iu his actual business ope- ration, the liberty which he here claims, namely, a liberty to employ an inefficient woman in place of an efficient one, if he proposes to pay in either case what the output is really worth. In short, as a practical proposition it is impossible to escape the conclusion that the liberty which Stettler really is seeking is a liberty to pay an unfair wage. Nor can it be that Simpson's claim is any more bona fide — for the liberty to work for Stettler rather than for another employer cannot be important to her, and the evident purpose of her case is to support the objects of her employer against her own interest. The question, then, is whether Stettler '3 alleged right A 24 to employ $8 women for $8 in place of $8.64 women for $8.64, and Simpson's alleged right to employment with Stettler rather than with other employers at a higher pay are "liberties" which reach the level of those pro- tected by the Constitution. It seems to us evident that they are not, but that, they are purely theoretical and fic- titious claims. The possible conduct which the statute restrains is conduct which (though they pretend to desire it) would be contrary to their own real interest and one that does not correspond to the real as opposed to the alleged facts of the situation. Second. — The alleged deprivations of property are either merely nominal and not bona fide, like the so-called "liber- ties," or hypothetical and unsubstantiated ; and therefore were not dealt with arbitrarily or wantonly or as a spoliation. As to "property," Simpson shows no deprivation whatever that can be separated from her claim in regard to "liberty," and so no further special consideration of her case is necessary on this point. Stettler 's claim is that he "cannot continue said busi- ness if he shall be required to pay each of said women [to wit, the particular women he is now employing at below the minimum price] the sum of $8.64 per week." (Stettler E., fol. 19.) Before considering other decisive answers to this claim, let ras point out one which disposes of it at the threshold; that the statute itself provides him^ a means of avoiding any property loss, by the provision (sec. 10) already discussed in respect to special licenses. What- ever may be said of a claim that this requirement of ap- plication for licenses amounts to a deprivation of "lib- A 25 erty, ' ' it certainly cannot be said that it amounts to any deprivation of "property," or that he can assert a de- privation of "property" which could not possibly follow if he applies for and obtains a license. The statute itself safe-guards the right for which he needlessly asks this Court to strike it down. {Gundlmg v. Chicago, 177 U. S., 183.) Even if, however, we should argue from the most gen- erous hypothesis that Stettler had sought a license and been refused, he still does not show any deprivation of property. He does not even attempt to assert that any present loss has actually occurred. At most he predicts that it may occur. His claim is purely a guess. Non constat that the operation of the law may not work to his profit and make his business less precarious. In actual operation it may make money for him rather than take money from him. Only experience can deter- mine, and until he shows an adverse experience he is without grievance in his claim to nullify the legis- lation of a State. He cannot ask this Court to overturn the judgment of the legislature of Oregon on a mere guess, when in fact experience may disprove the guess. {Willcox V. Consolidated Gas Co., 212 U. S., 19; Des Moines Gas Co. v. Des Moines, 238 U. S., 153 ; cf . Chicago Railway v. Wellman, 143 U. S., 339, 344-6.) In the Eighty Cents Gas case (Willcox case, supra), for example, the Court explicitly made its dismissal of the bill without prejudice to the right of the complainant tO' return to the Court if the "practical experience of the effect of the acts by actual operation tmder them" should "prevent the complainant from obtaining a fair return." A 26 (212 U. S., 19, 54-5.) Yet tlie complainant never re- turned to the Court, and it is public knowledge that the act really worked out to its profit. This precedent of the Gas case was followed in North- ern Pacific Railway Co. v. North Dakota, (216 U. S., 579, 580-1). Later on the complainant in that case returned to the Court and laid before it experience which demon- strated in terms of dollars and cents that the Statute did work a deprivation of property. Then, and not till then, was the State's action nullified. {Same v. Same, 236 TJ. S., 585.) Stettler himself has now had over three years experi- ence under the operation of the Act, and in the absence of a showing by him that his experience has actually re- sulted in putting him out of pocket, his prophesies of dis- aster cannot prevail. As a matter of fact, the general experience in Oregon during these three years proves that the actual operation does not produce the result he predicted, thereby corroborating the experience of Aus- tralia, and England, and other communities. (Part Two, pp. 506-555.) Of course we do not argue that this statute accounts for the prosperity. A great number of factors enter into that complex result. But it shows that he cannot main- tain the position which the Court required the complain- ants in the Gas and Northern Pacific cases, supra to maintain— namely, affirmative proof that the operation of the very statute assailed puts the specific complainant to loss, i. e. measurable diminution of his wealth. It is true, of course, that the Court is not required to sustain a statute if it can see without waiting for experi- ence that the result must certainly be property loss to A 27 a complainant. That follows from its equity powers to prevent irreparable injury. To make such a case, how- ever, the imminence of the injury must be something more than a mere guess, and something more than a mere partisan claim of a litigant in a situation which involves so "many elements of uncertainty in the calculation." {Northern Pacific Railway Co. v. North Dakota, 216 U. S., 579, 580-1, swpra.) The imminence of the injury must be demonstrable as an unavoidable result of the operation of the statute. This was the point of view of the Court in Chicago Railway Co. v. Welhnan, 143 U. S., 339, swpra: "The silence of the record gives us no informa- tion and we have no knowledge outside thereof, no suspicion of wrong. Our suggestion is only to in- dicate how eagerly courts may be misled into doing grievous wrong to the public, and how careful they should be not to declare legislative acts unconstitu- tional upon agreed and general statements and with- out the fullest disclosure of all material facts." (p. . 346.) It may be said that the cases arise on demurrer and this calls for a scrutiny of the complaints. Nowhere does the complaint in either case allege an actual exist- ing loss. It only predicts a possible loss, and even this prediction is based upon a construction of the statute which it does not bear, or a gloomy theory of industrial economics, which experience, so far as we have it, dis- proves. Stettler's claim, quoted above, alleges that he will lose his business "if he shall be required to pay each of said women [to wit, the particular women he is now em- ploying at below the minimum price] the sum of $8.64 A 28 per week" (Stettler E., fol. 19). But the act puts no sucli compulsiou on Mm; it does not require Mm to in- crease the wages of these particular women. As we have seen, it only forbids Ms continued employment at less than the fixed minimum without the leave of the Com- mission, the granting of which, upon appropriate request, this Court will presume in absence of a show- ing to the contrary. (Gundling v. 'Chicago, 177 U. S., 183, 186, supra; Mutual Film Corporation v. Industrial Com- mission, 236 TJ. S., 230, 245-6, supra.) If the terms of the statute had prevented Stettler from getting em- ployees on a self-supporting basis, or if his complaint had alleged that it is impossible to find such a supply, we might then have had a case at least of certain depriva- tion of property in the future, the loss of which equity could forestall in a proper case. There are two short answers to such a claim. In the first place, the statute in nowise imposes such a re- striction, and in the second place, Stettler in nowise al- leges that his property will be so affected. The reason he makes no such allegation is that he would thereby call into question the basic assumption of the social struc- ture, for, in effect, it would be tantamount to saying that society cannot be self-supporting, even if human energy is adequately employed and properly directed to produc- tive ends. Third. — It is not arbitrary, wanton, or a spoliation for the State to require Stettler to pay the cost of Simpson's labor if he chooses to use it. Stettler 's theory is something like this : For the sake ot conservmg smipson's health, etc., the A 29 State "wishes her to have more money. In order to provide this the State forbids Stettler to employ her unless he gives to her this additional money. Inas- much as (according to his theory) there is no relation between himself and her need of this additional money his "liberty" is being limited by purely arbitrary con- ditions just as if the State should require this, say, of John D, Eockefeller, who is not her employer or con- cerned with her in any way. This proposition pervades the entire argument of the plaintiffs. (See Brown Brief on the original argument, pp. 10, 15, 16, 17, 22, 27, 33, 34, 39.) The short answer to this central claim is that Stettler is Simpson's employer amd, no other person is. He alone has the use of her worTcing energy, to mamiain which a cost of not less than $8.64 per week is essential. From this vital difference of relationship, inherent in his peculiar status as her employer, follow the vital consequences which differentiate him from any other citi- zen, and furnish the justifications for the imposition of her minimum living cost upon him, as distinguished, from any other person in the State. It is Stettler, and Stettler alone, who receives the benefit of Simpson's working energy, which cannot be produced or maintained by less than $8.64 per week. That is the minimum cost of her labor. It provides only for such quantity of food as will preserve her working energy and for such shelter and clothing as will save it from destruction by the elements. This fact is conceded (Plaintiff's Brief on original argument, p. 11) and has been authoritatively and conclusively determined by over- whelming evidence (Part Two, pp. 356-383). A 30 If the status were slave owner and slave, instead of employer and employee, Stettler would liave to expend at least this much to keep the slave in fit condition for her work; or if we look upon a human worker in a factory as a mere piece of physical machinery, this weekly sum would represent the minimum actual cost of the coal and repairs it would require for its operation. The signifi- cance of this is that the expenditure by someone of every penny of this whole sum of $8.64 upon Simpson goes to the operation of the industry and merely provides for the cost of that operation. It goes to the maintenance of the energy purchased by the employer and devoted to the industry. Suppose this minimum wage even allows a small bal- ance for civilized demands of the human personality over and above the absolute necessities of preserving the work- ing energy in its mere animal aspect. Even in such a case Stettler 's argument would be unsound; but how is it possible to say, as Stettler says, that there is no rela- tion between his industry, which uses all the working energy of Simpson's life, and the bare necessary cost of keeping that life at work? How is it possible to say, as Stettler says, that it is arbitrary, wanton or spoliative for the State to require him to pay the cost of any articles (above all of human beings who in the aggregate make up the State itself) if he chooses to use it? The State does not compel him to use it; all that it says to him is that if he chooses to take its benefit he must pay at least its cost. Eveil thus limited in its requirement the State is not rigid. It has made provision for variations from the normal, it allows for the diversities among masses A 31 of men, and so it grants Stettler the right to use labor even at less than its cost, if he can show to the Commis- sion a reasonable justification for the issue of a special license. Stettler 's argument, in brief, reduces itself to the familiar one of no "liability without fault," to the claim that the State must show an intimate relation of cause and effect between his industry and Simpson's necessi- ties, before it can impose her living cost upon him. Causa- tion (in so far as there is any implication of culpability) is one of the most slippery concepts of the law and a meta- physio based upon causality is a sterile and dangerous method of approaching constitutional inquiries. In truth, there are many familiar instances prior to the Fourteenth Amendment and therefore recognizing a field for State action not restricted by it, wherein liabilities are im- posed, without any notion of fault or moral culpability, but solely because, in the conduct of business, relation- ships necessarily arise between human beings which in- volve certain responsibilities towards other human be- ings. These responsibilities the law enforces. St. Loms, etc., Railway v. Matthews, 165 U. S., 1 (sus- taining Missouri statute holding railroad company liable for all property destroyed directly or indirectly by fire from locomotives wholly apart from any ques- tion of negligence). Jones V. Brim, 165 U. S., 180 (sustaining Utah statute creating absolute liability, and wholly apart from negligence for damages done by cattle). Atchison & Topeha Railroad v. Matthews, 174 U. S., 96 (sustaining Kansas statute imposing attorney's fees in cases of recovery for damages by fire caused by operating of road). A 32 Chicago Railway v. Zemecke, 183 U. S., 582 (sustain^ ing Nebraska statute imposing an absolute liability upon carriers for passenger injuries). "Our jurisprudence affords examples of legal liability without fault, and the deprivation of prop- erty without fault being attributable to its owner" (p. 586). Chicago v. Sturges, 222 U. S., 313 (sustaining Illinois statute imposing absolute liability upon a munici- pality when property is destroyed by mob violence). To a legislature faced with such public problems as confronted the legislature of Oregon the claim that it cannot constitutionally compel a man to pay at least the bare cost of what he uses must seem a long departure from the practical oommon-sence by which alone human relations can be efficiently adjusted. Fourth. — The State's action was not arbitrary, wanton or a spoliation because the State's own direct interest in these particular wage contracts gave it a special justification for controlling them. Assuming, for the purposes of the argument, that an ordinary wage bargain would not be subject to State regulation, that cannot be the case with the particular class of bargains here involved. A contract in which a mere living wage is at stake is not merely the private concern of the employer and the employee, but a tripartite affair involving (1) employer, (2) employees and (3) the public. If the employer and the employee were completely isolated from all reliance upon the outside public no bargain for employment at less than a living wage would A 33 be possible, because the deficit between the proposed pay- ment for the labor and the cost of its production and maintenance could not be supplied. Without assistance from the public in some form or other no employer could obtain labor below cost nor could any employee give it. In other words, a contract for labor below its cost must inevitably rely upon a subsidy from outside. To the extent of this subsidy the public is necessarily concerned; thereby the public is drawn into the situation; it is not an intermeddler. This may become still clearer if we frame it in terms of the negotiation which Stettler demands the uncondi- tional right to make with Simpson. Employer : I am to pay to you and you are to receive from me $8 per week. You are to give to me and I am to receive from you all your working energy, which has been validly ascertained to consist of ten hours a day. Employee : But, sir, this working energy, of which you are to receive the total, costs at the very least $8.64 a week. How are we to get the balance? Employer : We can get it in either of three ways : (1) members of your family engaged in other industries will supply it rather than see you starve, or (2) you can get it from a "friend," or (3) you can get it from public or private charity. This is a plain case of relying upon a public subsidy for a private interest, and the State has, therefore, a special right to impose conditions upon which the indus- try or the employee may enjoy the subsidy or even to A 34 refuse it absolutely. Oregon does not refuse it, but merely imposes conditions upon the grant. It demands to be shown that the subsidy is just and necessary to the satisfaction of its Commission. Stettler has no more constitutional right to insist upon this grant in aid of his business than a man who undertook to raise bananas in Connecticut would have to demand, as of right, a public subsidy by way of a tariff. Nor has Simpson any abso- lute right to give her energies to Stettler's industry if she cannot keep her side of the bargain without public subsidy. If her output really is worth the cost of her labor, then surely she can have no claim for public assistance. If her output is not worth its cost because of her in- efficiency, such inefficiency usually means that she has not been trained to the best use of her capacities. Surely the State may induce such training, stimulate efficiency on the part both of employer and employee, and thereby add to the wealth of the State. Experience demonstrates that in fact such efficiency is powerfully stimulated and productivity enhanced by establishing a minimum wage. (Part Two, pages 539-596.) If Simpson cannot be trained to yield an output that does pay the cost of her labor, then she can either avail herself of the license conditions imposed by the statute for such cases, or accept the status of a defective to be segregated for special treatment as a dependent of the State. On this point counsel argued in their first brief that the State could not put her in this position un- less it provided in advance for her maintenance. (Plain- tiff's Brown brief on original argument.) This ignores A 35 the provisions made by the State for special licenses.* Be- sides, the State may determine how defectives shall be supported, and not be compelled to grant an indirect sub- sidy. One of the most baffling problems of the modem State is the treatment of those who are incapable of carrying their own weight. The first step in the solution is to know who is self-supporting and who is dependent. The State, therefore, may use means, like the present statute, of sorting the normal self-supporting workers from the unemployables and then deal with the latter appropriately as a special class, instead of an indiscrimi- nate, unscientific lumping of all workers, with a resulting unscientific confusion of standards. Fifth. — It is not arbitrary, wanton or a spoliation for the State to require Stettler to obtain a license from the Commis- sion before he can buy labor at less than cost, because that is a reasonable means of preventing a possibility of cut-throat and unfair competition, between manufacturers. If the State could be assured that wage contracts in- volving purchase and sale of labor will not be made in any substantial number of cases for less than cost, then the State could feel that its requirement of prior scrutiny by 'the Commission is unnecessary, because if all wage con- tracts were for the fair value of the produce they would not affect competitive conditions. Experience, however, * It may be contended that the license clause does not cover every conceivable case of inability to earn a living, because it is limited to (1) learners and apprentices, and (3) women "physically defective or crippled by age or otherwise," Sec. 10. But surely it is incumbent upon the plain- tiffs to show that the existing license provisions would be construed so as not to cover their situation before they can be heard to object (Chicago St. Railway v. Anderson, 242 U. S., decided Dec. 18, 1916) ; and surely also the State can test this matter as experience reveals other instances for special licenses and cannot be expected to see every future need in advance. (Price v. Illinois, 238 U. S., 446, 453.) AS6 proves that the State could not safely control its action by such a hypothesis, and that legislation, therefore, may fill the gaps caused by the ignorance or helplessness of laborers and the ignorance or avarice of employers. As against competing employers who accept the dominant standard of dealing towards their employees, and who have a more enlightened view of the far-reaching conse- quences of wages below the human minimum upon indus- try, public health, living standards, etc., the unscrupulous and narrow-minded employer may obtain at least a tem- porary advantage by getting labor at less than its cost. Such an employer takes advantge of a situation so as to draw upon a public subsidy as a fund which enables him to undersell competitors. This is recognized by counsel for the plaintiffs ia error in his brief on the first argument. In several passages including the following: "It [the Massachusetts form of statute] natur- ally results in bringing in line with the employers of more humanitarian tendencies those who, from avarice, neglect, or indifference would remain in- active without some such stimulating incentive." (p. 49.) "The efficacy of any legislative enactment re- latmg to a minimum wage is not so much from its compulsory features as it is from its encouragement and assistance to the co-operation of those more malevolently inclined for having a higher ethical sense." (p. 79.) _ "Even if we admit that it is the ethical or reli- gious duty of an employer to supply this need (i. e. the need of a liymg wage) still there is no legal basis for compelling him to do so." (p. 33 ) 'y the commission. Each advisory bQard, shall recommendto the commission an estimate of the. minimum wages, whether by time rate or by piece rg,te, suflScient for living wages for women and minors of ordinary ability, and an estimate of the minimum wages sufficient for living wages for learners and apprentices. A, majority of the entire membership of an advisory board shall be necessary and sufficient to recommend wage est^inates to the comnaission. Sec. 9. — Upon receipt of such estimates of wages from an advisory bbard, the commission shall review the same, and if it approves them shall make them the mini- mum wages in said occupation, as provided in section 6. ^uch -wfages shall be regarded as determined by the com- mission itself and the order of the commission putting thena, into effect shall have the same force and authority as though the wages were determined without the assist- ance of an advisory board. 47, The American ^.egislatipn.^ — Minnesota, ,,Seo.,10. — ^All rates of wages ordered Ijy; the co myn is- sion siiaHreiBainip, force until new r^ites are detennjuaed, , and established hy ,the cominissipn, ,At the request P^^ approximately one-fourtli of the employers or employees in an occupation^ the commission' must reconsider the rates already established therein and may, if it sees fit, order new rates of minimum wage^ for said occupation. The commission may likewise reconsider old rates and orfier new minimum rates on its o^ii iiiJLti3.tive. , Sec. ll.^jPor any oceiupation in \fliich a minimum time rate of wages only has been ordered the comjnission may issue to a woman physically defectiye a,, special license authQri,zing her employment, at a wage l^ss, than the general, minimum ordered in said .occupation : ,and the . cpnimission may fix a special, wage for , such person. Pro- vi,ded: thaljithe number of suph p,ersons shall not exceed one-tenth of the whole number of wprkers in any, estab- lishment. ' Sec. 12. — Every employer in any occupation is hereby* prohibited from employing any worker at less than the living wage or minimum wage as defined in this act and determined in ah order of the commission : and it shall be unlawful for, any emplpyer to employ any worker at less than said living pi^ minimum wage. ,Siic. 13.7— It shall likewise.be unlawful for any em- ployer to discharge or in any manner , discriminate against any employee because such employee has testified, or is about to testify, or because such emplpyer believes that said emplpyee is about to testify^ in any invPstigation or pi^oeeeding' relativ.e tP the enforcement of this act. Sec. 14. — ^Any workPr -vrho receives less than the mini- mum wage ordered by the commission shall be entitled to recover in civil, action the full amount due 1 as measured by saifl order of the commission, together with costs and attprney 's fees tp ,be fixed by the court, notwithstanding any agreement to ;work for a lesser wage. 48 The American Legislation. — Minnesota Sec. 15. — The commission shall enforce the provisions of this act, and determine all questions arising there- under, except as otherwise herein provided. Sec. 16. — The commission shall biennially make a re- port of its work to the governor and the state legislature, and such reports shall be printed and distributed as in tiie case of other executive documents. Sec. 17. — The members of the commission shall be re- imbursed for traveling and other necessary expenses in- curred in the performance of their duties on the commis- sion. The woman member shall receive a salary of eigh- teen hundred dollars annually for her work as secretary. All claims of the commission for expenses necessarily in- curred in the administration of this act, but not exceed- ing the annual appropriation hereinafter provided, shall be presented to the state auditor for payment by warrant upon the state treasurer. Sec. 18. — There is appropriated out of any money in the state treasury not otherwise appropriated for the fiscal year ending July 31, 1914, the sum of five thousand -dollars ($5,000.00), and for the fiscal year ending July 31, 1915, the sum of five thousand dollars ($5,000.00). Sec. 19. — Any employer violating any of the pro- visions of this act shall be deemed guilty of a misde- meanor and upon conviction thereof shall be punished for each offense by a fine of not less than ten nor more than fifty dollars or by imprisonment for not less than ten nor more than sixty days. Sec. 20. — Throughout this act the following words and phrases, as used herein, shall be considered to have the following meanings respectively, unless the context clearly indicates a different meaning in the connection "used: ( 1 ) The terms ' ' living wage " or " living wages ' ' shall mean wages sufficient to maintain the worker in health and supply him with the necessary comforts and condi- tions of reasonable life; and where the words "mini- 49 The American Legislation. — Minnesota mum wage" or "minimum wages" are used in this act, tlie same shall be deemed to have the same meaning as "living wage" or "living wages." (2) The terms "rate" or "rates" shall mean rate or rates of wages. (3) The term "commission" shall mean the minimum wage commission. (4) the term "woman" shall mean a person of the female sex eighteen years of age or over, (5) The term "minor" shall mean a male person un- der the age of twenty-one years, or a female person un- der the age of eighteen years. (6) The terms "learner" and "apprentice" may mean either a woman or a minor. (7) The terms "worker" or "employee" may mean a woman, a minor, a learner, or an apprentice, who is em- ployed for wages. (8) The term "occupation" shall mean any business, industry, trade, or branch of a trade, in which women or minors are employed. Sec. 21. — This act shall take effect and be in force from and after its passage. [Approved April 26, 1913.] 50 The American Legislation. — Nebraska ,,, Nebraska.. . ,n> Enacted m 1913. (Chapter 211.) " , An Act to establiish a minimum wage conmiissioii and to provide for the determination of minimum wages for women and minors. Beit enacted by the People of the State of Nebraska: SECTION 1. — There is hereby established a commission to be known as the Nebraska minimum wage commission. The governor is hereby made a member of said conimis- sion., Within thirty days from the passage and approval of this act he shall appoint the following additional mem- bers : deputy commissioner of labor, a member of the political science department of the University of Ne- bfaiska, one other member who shall be a citizen of the state. At least one member of said commission shall be a woman. Each of the above appointments shall be for a period of two years and may be renewed thereafter. Any vacancy occurring in the commission shall be filled by the governor. "Within ten days after such appoint- ment the commission shall meet and organize by th6 elec- tion of a chairman and secretary. Sec. 2. — ^Each commissioner shall be paid all travel- ing and other expenses incurred in the performance of his or her official duties. The commissioil may incur other necessary expenses not exceeding the biennial ap- propriation therefor and shall be provided with an office in the state house or at the state university. _ Sec. 3. — It shall be the duty of the commission to in- quire into the wages paid to the female employees in any occupation in the commonwealth, if the commission has reason to believe that the wages paid to a substantial number of such employees are inadequate to supply the necessary cost of living and to maintain the worker in health. Sec. 4.— If after such investigation the commission is of the opinion that in the occupation in question the. 5] The American Legislation. — Nebraska wages paid to a substantial number of female employees are inadequate to supply the necessary cost of living and to maintain the worker in health, the commission shall establish a wage board consisting of not less than three representatives of employers in the occupation in ques- tion and of an equal number of persons to represent the female employees in said occupation, and in addition thereto the three appointed members of the commission to represent the public. The chairman of the commission shall be chairman of the wage board and shall make rules and regulations governing the procedure of the board and exercise jurisdiction over all questions arising with reference to the validity of the procedure and the deter- minations of the board. The secretary of the commis- sion shall be secretary of the wage board and keep such record of hearings and arguments as the wage board shall direct. The members of wage boards shall be com- pensated at the same rate as jurors in district court; they shall be allowed necessary traveling and other ex- penses incurred in the performance of their duties, these pajmaents to be made from the appropriation for the ex- penses of the commission. Sec. 5. — The commission may transmit to each wage board all pertinent information in its possession relative to the wages paid in the occupation in question. Each wage board shall take into consideration the needs of the employees, the financial condition of the occupation and the probable effect thereon of any increase in the mini- mum wages paid, and shall endeavor to determine the minimum wage, whether by time rate or piece rate, suit- able for a female employee of ordinary ability in the occupation in question, or for any or all of the branches thereof, and also suitable minimum wages for learners and apprentices and for minors below the age of eighteen years. When two-thirds the members of the wage board shall agree upon minimum wage determinations, they shall report such determinations to the commission, together with the reasons therefor and the facts relating thereto, and also the names, so far as they can be ascer- 52 The American Legislation. — Nebraska tained by the board, of employers who pay less than the minimxiiu wage so determined. Sec. 6. — Upon receipt of a report from the wage board, the commission shall review the same, and report its review to the governor. If the commission approves any or all of the determinations of the wa^e board it shall, after not less than thirty days' notice to employers paying a wage less than the minimum wage approved, give a public hearing to such employers, and if, after such public hearing the commission finally approves the determination, it shall enter a decree of its findings and note thereon the names of employers, so far as they may be known to the commission, who fail or refuse to accept such minimum wage and to agree to abide by it. The commission shall, within thirty days thereafter, publish the names of all such employers in at least one news- paper in each county in the commonwealth, together with the material part of its findings, and a statement of the minimum wages paid by every such employer. Any em- ployer upon filing a declaration under oath in the district court to the effect that compliance with such decree would endanger the prosperity of the business to which the same is made applicable, shall be entitled to a stay of execution of such decree, and a review thereof with ref- erence to the question involved in such declaration. Such review shall be made by the court under the rules of equity procedure, and if it shall be found by the court that compliance with such decree is likely to endanger the prosperity of the business to which the same is ap- plicable, then an order shall issue from said court re- voking the same. The type in which the employers' names shall be printed shall not be smaller than that in which the news matter of the paper is printed. The pub- lication shall be iattested by the signature of at least a majority of the commission. Sec. 7. — In case a wage board shall make a recommen- dation of a wage determination in which a majority but less than two-thirds of the members concur, the commis- sion, in its discretion, may report such recommendation and the pertinent facts relating thereto to tiie legislature. 53 The American Legislation. — Nebraska Sec. 8. — Whenever a minimum wage rate has been es- tablished in any occupation, the commission may, upon petition of either employers or employees, reconvene the wage board or establish a new wage board, and any recommendation made by such board shall be dealt with in the same manner as the original recommendation of a wage board. Sec. 9. — For any occupation in which a minimum time rate only has been established, the commission may issue to any woman physically defective a special license au- thorizing the employment of the licensee for a wage less than the legal minimum wage: Provided, that it is not less than the special minimum wage fixed for that person. Sec. 10. — The commission may at any time inquire into the wages paid to minors in any occupation in which the majority of employees are minors, and may, after giving public hearings, determine minimum wages suit- able for such minors. When the commission has made such a determination, it may proceed in the same manner as if the determination had been recommended to the commission by the wage board. Sec. 11. — Every employer of women and minors shall keep a register of the names and addresses of all women and minors employed by him, and shall on request per- mit the commission or any of its members or agents to inspect the register. The commission shall also have power to subpoena witnesses, administer oaths and take testimony, and to examine such parts of the books and records of employers as relate to the wages paid to women and minors. Such witnesses shall be summoned in the same manner and be paid from the treasury of the commonwealth the same fees as witnesses before the Dis- trict Court. Sec. 12. — The commission may cause such statistics and other data to be gathered as it may deem desirable, and the cost thereof shall be paid out of the appropria- tion made for the expenses of the commission. 54 The American Legislation.— Nebraska Sec. 13.— Any employer who discliarges or in any other manner discriminates against any employee be- cause sucli employee, has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceeding relative to thQ enforcement of this act, shall be deemed guilty of a mis- demeanor, and upon conviction thereof shall be punished by a fine of twenty-five dollars for each offense. Sec. 14. — The commission shall from time to time de- termine whether employers in each occupation investi- gated are obeying its decrees, and shall publish in the manner provided in section six, the name of any employer whom it finds to be violating any such decree. Sec. 15. — ^Any newspaper publisher or publishers re- fusing or neglecting to publish the findings, decrees or notices of the commission at its regular rates for the space taken shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars for each offense. Sec. 16. — ^No member of the commission and no news- paper publisher, proprietor, editor or employee thereof, shall be liable to an action for damages for publishing the name of any employer in accordance with the pro- visions of this act, unless such publication contains some wilful misrepresentation. Sec. 17. — The commission shall make a report to the governor on or before the 1st day of November, 1914, and biennially thereafter, covering the results secured and data gathered in its work. It may also make such addi- tional reports in the form of bulletins from time to time as in its judgment shall best serve the public interest. [Approved, April 21, 1913.J 55 The American Legislation. — Oregon Oregon. Enacted in 1913. {Chapter 62.) Amended in 1915. {^Chapter 35). An Act to protect the lives and health and morals of women and minor workers, and to establish an In- dustrial Welfare Commission and define its powers and duties, and to provide for the fixing of minimum wages and maximum hours and stand- ard 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 unreasonably long hours ; and it shall be unlawful to em- ploy women or minors in any occupation within the State of Oregon under such surroundings or conditions — sani- tary 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. Sec. 2. — There is hereby created a commission com- posed of three commissioners, which shall be known as the "Industrial 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 Welfare Commission. Said commissioners shall be appointed by the governor. The 56 The American Legislation. — Oregon governor shall make Ms first appointments 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 va- cancy that may occur in the membership of said com- mission shall be filled by appointment by the governor for the unexpired portion of the term in which such vacancy occurs. A majority of said commissioners 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 im- pair 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 com- missioners — ^both the original appointments and all sub- sequent appointments — that at all times one of said com- missioners shall represent the interests of the employing class and one of said commissioners shall represent the interests of the employed class and the third of said com- missioners 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. Sec. 3. — The first commissioners appointed under this act shall, within twenty days after their appointment, meet and organize said conimission by electing one of their number as chairman thereof and by choosing a secretary of said commission ; and by or before the tenth day of January of each year, beginning with the year 1914, said commissioners shall elect a chairman and choose a secretary for the ensuing year. Each such 57 The American Legislation. — Oregon chairman and eacli 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 secre- tary 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 commis- sioners shall receive any salary as such. All authorized and necessary expenses of said commission and all au- thorized and necessary expenditures incurred by said commission shall be audited and paid as other state ex- penses and expenditures are audited and paid. Seo. 4. — Said commission is hereby authorized and empowered to ascertain and declare, in the manner here- inafter 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 occupation 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 mini- mum 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. Sec. 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 em- ployed in the State of Oregon ; and said commission shall have full power and authority, either through any au- thorized representative or any commissioner to inspect and examine any and all books and pay rolls and other records of any employer of women or minors that in any 58 The American Legislation. — Oregon way appertain to or have a bearing upon the question 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. Sec. 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 com- missioner or any authorized representative of said com- mission 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. Sbo. 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 hearings at such times and places as it deems fit and proper for the purpose of investigating any of the matters it is authorized 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 witnesses at any such public hear- ing 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 ses- sion 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 be- fore the circuit court of Multnomah county. Sec. 8. — If, after investigation, said commission is of opinion that any substantial number of women workers in any occupation are working for unreasonably long 59 The American Legislation, — Oregon 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 considering and inquiring into and reporting on the subject investigated by said commis- sion and submitted by it to such conference. Such con- ference shall be composed of not more than three repre- sentatives 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 disin- terested 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 chairman thereof. Said commission shall present to such conference all information and evidence in the pos- session or under the control of said commission which relates to the subject of the inquiry by such conference ; and said commission shall cause to be brought before such conference any witnesses whose testimony said com- mission deems material to the subject of thft inquiry by such conference. After completing its consideration of and inquiry into the subject submitted to it by said com- mission, such conference shall make and transmit to said commission a report containing the findings and recom- mendations of such conference on said subject. Accord- ingly as the subject submitted to it may require, such conference shall, in its report, make recommendations on any or all of the following questions concerning the particular occupations under inquiry, to wit: (a) Stand- ards of hours of employment for women workers and what are unreasonably long hours of emplojmient 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 women workers; (c) Standards of minimum ■W^ages for women workers and what wages are inade- quate to supply the necessary cost of living to women workers and maintain them in health. In its recommen- 60 The American Legislation. — Oregon dations 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 recom- mend minimum piece rates as well as a 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 ap- pears proper or necessary, recommend suitable minimum wages for learners and apprentices 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 occupation under inquiry. Two-thirds of the members of any such con- ference 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. Sec. 9.— As Amended Ch. 35, Acts 1915).— Upon receipt of any report from any conference, said com- mission shall consider and review the recommen- dations contained in said report; and said com- mission may approve any or all of said recommendations or disapprove any or all of said recommendations ; and said commission may re-submit to the same conference, or a new conference, any subject covered by any recom- mendations so disapproved. If said commission ap- proves any recommendations contained in any report from any conference, said commission shall publish no- tice, not less than once a week for four successive weeks in not less than two newspapers of general circulation published in Multnomah county, that it will on a date and at a place named in said notice, hold a public meet- ing at which all persons in favor of or opposed to said recommendations 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 61 The American Legislation. — Oregon an order as may be proper or necessary to adopt such recommendations and carry the same into effect, and re- quire 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 effec- tive and while it is effective, it shall be unlawful for any employer to violate or disregard any of the terms or pro- visions of said order or to employ any woman worker in any occupation covered by said order for longer hours or under different surroundings or . conditions or at lower wages than are authorized or permitted by said order. Said commission shall, as far as is practicable, maU a copy of any such order to every employer affected thereby ; 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, provided, however, that in case of emer- gencies which may arise in the conduct of any industry or occupation overtime may be permitted under condi- tions and rules which the Commission, after investiga- tion, shall determine and prescribe by order and which shall apply equally to all employers in such industry or occupation. Sec. 10. — For any occupation in which only a mini- mum time rate wage has been established, said commis- sion 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. Sec. 11. — Said commission may at any time inquire into wages or hours or conditions of labor of minors em- ployed in any occupation in this state and determine suit- 62 The American Legislation.— -Oregon able wages and hours and conditions of labor for such minors. Wben said commission has made such deter- mination, it may issue an obligatory order in the manner provided for in section 9 of this act; and, after such or- der is effective, it shall be unlawful for any employer 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; but no such order of said commission shall authorize or per- mit 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. Sec. 12. — The word "occupation" as used in this act shall be so construed as to include any and every voca- tion and pursuit and trade and industry. Any confer- ence 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 occu- pation. Any conference may make different recommen- dations and said commission may make different orders for the same occupation in different localities in the state when, in the judgment of such conference or said com- mission, different conditions in different localities justify such different recommendations or different orders. Sec. 13. — Said commission shall, from time to time, investigate 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 employers as are not observing or com- plying with its orders. Sec. 14. — The "Commissioner of Labor Statistics and Inspector of Factories and Work Shops ^' and the sev- eral officers 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 performance of their respective Cjfficial duties. ; 63 The American Legislation. — Oregon Seo. 15. — Said commission is hereby authorized and empowered to prepare and adopt and promulgate rules and regulations for thfe carrying into efffect ctf the fore- going provisions of this act, including rules and regula- tions for the selection of members and the mode of pro- cedure of conferences. Sec. 16,— All questions of fact arisi^g 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 com- mission on any such question of fact; but there sh^U 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 question 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 rep- resent said commission. Sec. 17. — ^Any person who violates any of the forego- ing 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) dollars nor more than one hundred ($100) 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 im- prisonment in the discretion of the court. Sec. 18. — ^Any employer who discharges or in any other manner discriminates against any employee be- cause such employee has testified, or is about to testify, or because such employer believes that said employee may testify, in any investigation or proceedings under or relative to this act, shall be deemed guilty of a mis- demeanor, and upon conviction thereof sha,ll be punished by a fine of not less than twenty-five ($25) doUars nor more than one hundred ($100) dollars. Sec. 19. — If any woman worker shall be paid by her employer less than the minimum wage to which she is 64 The American Legislation. — Oregon entitled under or by virtue of an order of said commis- sion, 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 attorney's 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. Sec. 20. — Said commission shall, on or before the 1st day of January of the year 1915 and of each second year thereafter, make a succinct report to the governor and legislature of its work and the proceedings under this act during the preceding two years. Sec. 21. — There is hereby appropriated out of the general fund of the State of Oregon the sum of thirty- five hundred ($3,500) 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 the Secretary of State, Febru- ary 17, 1913.] 65 The American Legislation. — Utah Utah. Enacted in 1913. (Chapter 63.) An Act to establish a minimum wage for female workers, providing a penalty for violation of the provisions of this act and providing for its enforcement. Be it enacted by the Legislature of the State of Utah: Section 1. — It shall be unlawful for any regular em- ployer of female workers in the State of Utah to pay any female less than the wage in this section specified, to wit: For minors, under the age of eighteen years, not less than seventy-five cents per day; for adult learners and apprentices not less than ninety cents per day; Provided, that the learning period or apprenticeship shall not ex- tend for more than one year; for adults who are ex- perienced in the work they are employed to perform, not less than one dollar and twenty-five cents per day. Sec. 2. — ^AU regular employers of female workers shall give a certificate of apprenticeship for time served to all apprentices. Sec. 3. — ^Any regular employer of female workers who shall pay to any female less than the wage specified in section 1 of this act shall be guilty of a misdemeanor. Sec. 4. — The Commissioner of Immigration, Labor and Statistics shall have general charge of the enforce- ment of this act, but violations of the same shall be prose- cuted by all the city. State and county prosecuting officers in the same manner as in other cases of misdemeanor. [Approved March 18, 1913.] 66 The American Legislation. — Washington Washington. Enacted in 1913. (Chapter 174.) An Act to protect the lives, health, morals of women and minors, workers, establishing an industrial wel- fare commission for women and minors, prescrib- ing its powers and duties, and providing for the fixing of minimum wages and the standard condi- tion of labor for such workers, and providing penalties for violation of the same, and making an appropriation therefor. Be it enacted by the Legislature of the State of Wash- ington: Section 1. — The welfare of the State of Washington demands that women and minors be protected from con- ditions of labor which have a pernicious effect on their health and morals. The State of Washington, therefore, exercising herein its police and sovereign power declares that inadequate wages and unsanitary conditions of labor exert such pernicious effect. Sec. 2.— It shall be unlawful to employ women or minors in any industry or occupation within the State of Washington under conditions of labor detrimental to their health or morals ; and it shall be unlawful to em- ploy women workers in any industry within the State of Washington at wages which are not adequate for their maintenance. Sec. 3. — There is hereby created a commission to he known as the "Industrial Welfare Commission" for the State of Washington, to establish such standards of wages and conditions of labor for women and minors em- ployed within the State of Washington, as shall be held hereunder to be reasonable and not detrimental to health and morals, and which shall be sufficient for the decent maintenance of women. Sec. 4. — Said commission shall be composed of five persons, four of whom shall be appointed by the gov- 67 The American Legislation. — Washington ernor, as follows : The first appointments shall be made within thirty (30) days after this act takes effect; one for the term ending January 1st, 1914 ; one for the term end- ing January 1st, 1915 ; one for the term ending January 1st, 1916, and one for the term ending January 1st, 1917 : Provided, however, That at the expiration of their respec- tive terms, their successors shall be appointed by the gov- ernor to serve a full term of four years. No person shall be eligible to appointment as a commissioner hereunder who is, or shall have been at any time within five years prior to the date of such appointment, a member of any manufacturers or employers association or of any labor union. The governor shall have the power of removal for cause. Any vacancies shall be filled by the governor for the unexpired portion of the term in which the va- cancy shall occur. The commissioner of labor of the State of Washington shall be ex officio member of the commission. Three members of the commission shall constitute a quorum at all regular meetings and public hearings. Sec. 5. — The members of said commission shall draw no salaries. The commission may employ a secretary, whose salary shall be paid out of the moneys hereinafter appropriated. All claims for expenses incurred by the commission shall, after approval by the commission, be passed to the state auditor for audit and payment. Sec. 6. — It shall be the duty of the commission to as- certain the wages and conditions of labor of women and minors in the various occupations, trades and industries in which said women and minors are employed in the State of Washington. To this end, said commission shall have full power and authority to call for statements and to examine, either through its members or other author- ized representatives, all books, pay rolls or other records of all persons, firms and corporations employing females or minors as to any matters that would have a bearing upon the question of wages of labor or conditions of labor of said employees. 68 The American Legislation. — Washington Sec. 7. — Every employer of women and minors shall keep a record of the names of all women and minors em- ployed by him, and shall on request permit the commis- sion or any of its' members or authorized representatives to inspect such record. Seo. 8. — For the purposes of this act a minor is de- fined to be a person of either sex under the age of eigh- teen (18) years. Sec. 9. — The commission shall specify times to hold public hearings, at which times employers, employees or other interested persons may appear and give testimony as to the matter under consideration. ■ The commission shall have power to subpoena witnesses and to administer oaths. All witnesses subpoenaed by the commission shall be paid the same mileage and per diem allowed by law for witnesses before the superior court in civil cases. Sec. 10. — If, after investigation, the commission shall find that in any occupation, trade or industry, the wages paid to female employes are inadequate to supply them necessary cost of living and to maintain the workers in health, or that the conditions of labor are prejudicial to the health or morals of the workers, the commission is empowered to call a conference composed of an equal number of representatives of employers and employees in the occupation or industry in question, together with one or more disinterested persons representing the public; but the representatives of the public shall not exceed the number of representatives of either of the other parties ; and a member of the commission shall be a member of such conference and chairman thereof. The commission shall make rules and regulations governing the selection, of representatives and the mode of procedure of said conference, and shall exercise exclusive jurisdiction over all questions arising as to the validity of the procedure and of the recommendations of said conference. On re- quest of the commission, it shall be the duty of the con- ference to recommend to the commission an estimate of the minimum wage adequate in the occupation or indus- try in question to supply the necessary cost of living, and 69 The American Legislation. — Washington maintain the workers in health, and to recommend stand- ards of conditions of labor demanded for the health and morals of the employees. The findings and recommenda- tions of the conference shall be made a matter of record for the use of the commission. Sec. 11. — Upon the receipt of such recommendations from a conference, the commission shall review the same and may approve any or all of such recommendations, or it may disapprove any or all of them and re-commit the subject or the recommendations disapproved of to the same or a new conference. After such approval of the recommendations of a conference the commission shall issue an obligatory order to be effective in sixty (60) days from the date of said order, or if the commis- sion shall find that unusual conditions necessitate a longer period, then it shall fix a later date, specifying the minimum wage for women in the occupation affected, and the standard conditions of labor for said women; and after such order is effective, it shall be unlawful for any employer in said occupation to employ women over eighteen (18) years of age for less than the rate of wages, or xmder conditions of labor prohibited for women in the said occupation. The commission shall send by mail, so far as practicable, to each employer in the occupation in question a copy of the order, and each employer shall be required to post a copy of said order in each room in which women affected by the order are employed. When such commission shall specify a minimum wage here- under the same shall not be changed for one year from the date when such minimum wage is so fixed. Sec. 12. — Whenever wages or standard conditions of labor have been made mandatory in any occupation, upon petition of either employers or employees, the commission may at its discretion re-open the question and re-convene the former conference or call a new one, and any recom- mendations made by such conference shall be dealt with in the same manner as the original recommendations of a conference. 70 The American Legislation. — Washington Sec. 13. — For any occupation in wMch a minimum rate has been established, the commission through its secretary may issue to a woman physically defective or crippled by age or otherwise, or to any apprentice in such class of employment or occupation as usually requires to be learned by apprentices, a special license authorizing the employment of such licensee for a wage less than the legal minimum wage; and the commission shall fix the minimum wage for said person, such special license tobe issued only in such cases as the commission may decide the same is applied for in good faith and that such license for apprentices shall be in force for such length of time as the said commission shall decide and determine is proper. Seo. 14. — The commission may at any time inquire into wages, and conditions of labor of minors, employed in any occupation in the state and may determine wages and conditions of labor suitable for such minors. When the commission has made such determination in the cases of minors it may proceed to issue an obligatory order in the manner provided for in section 11 of this act, and after such order is effective it shall be unlawful for any employer in said occupation to employ a minor for less wages than is specified for minors in said occupation, or under conditions of labor prohibited by the coromission for said minors in its order. Sec. 15. — Upon the request of the commission the com- missioner of labor of the State of "Washington shall fur- nish to the commission such statistics as the commission may require. Sec. 16. — ^Any employer who discharges, or in any other manner discriminates against any employee be- cause such employee has testified or is about to testify, or because such employer believes that said employee may testify in any investigation or proceedings relative to the enforcement of this act, shall be deemed guilty of a mis- demeanor and upon conviction thereof, shall be punished by a fine of from twenty-five dollars ($25.00) to one hun- dred dollars ($100.00) for each such misdemeanor. 71 The American Legislation. — Washington Sec. 17. — ^Any person employing a woman or minor for wliom a minimum wage or standard conditions of labor have been specified, at less than said minimnm wage, or under conditions of labor prohibited by the or- der of the commission; or violating any other of the pro- visions of this act, shall be deemed guilty of a misde- meanor, and shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00). Sec. 17%. — Any worker or the parent or guardian of any minor to whom this act applies may complain to the commission that the wages paid to the workers are less than the minimum rate and the commission shall investi- gate the same and proceed under this act in behalf of the worker. Seo. 18. — If any employee shall receive less than the legal minimum wage, except as hereinbefore provided in section 13, said employe shall be entitled to recover in a civil action the full amount of the legal minimum wage as herein provided for, together with costs and attorney's fees to be fixed by the court, notwithstanding any agree- ment to work for such lesser wage. In such action, how- ever, the employer shall be credited with any wages which have been paid upon account. Sec. 19. — ^AU questions of fact arising under this act shall be determined by the commission and there shall be no appeal from its decision upon said question of fact. Either employer or employee shall have the right of ap- peal to the superior court on questions of law. Sec. 20. — The commission shall biennially make a re- port to the governor and state legislature of its investi- gations and proceedings. Sec. 21. — There is hereby appropriated annually out of any moneys of the state treasury not otherwise appro- priated, the sum of five thousand dollars ($5,000.00), or as much thereof as may be necessary to meet the expenses of the commission. [Approved March 24, 1913.] 72 The American Legislation. — Washington Acts of 1915. {Chapter 68). Employment of Women and Children by Telephone Com- panies. Seotiof 1. — The industrial welfare commission is hereby authorized, in such manner as it shall deem advis- able, and upon notice and hearing to parties directly af- fected thereby, to ascertain and establish such standards of wages, hours of work and conditions of labor of women and minors employed in the telephone industry in rural communities and in cities of less than three thousand (3,000) population, as shall be found to be reasonable and not detrimental to the health and morals of such women and minors and which shall be sufficient for the decent maintenance of such women and minors, and not- withstanding any statute heretofore passed or regula- tion of such commission heretofore made relative there- to: Provided, That nothing in this act contained shall be construed to amend or repeal any law or any regula- tion relating to wages, hours of labor or conditions of labor of women or minors excepting as in this act au- thorized. (Approved March 15, 1915.) 73 The American Legislation. — Wisconsin Wisconsin. Enacted in 1913. (Chapter 712.) An Act to create sections 1729s— 1 to 1729s — 12, inclu- sive, of the statutes, relating to the establishment of a living-wage for women and minors, and mak- ing an appropriation, and providing a penalty. The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows: Section 1729s — 1. The following terms as used in sec- tions 1729s — 1 to 1729s — 12, inclusive, shall be construed as follows : (1) The term "employer" shall mean and include every person, firm or corporation, agent, manager, rep- resentative, contractor, subcontractor or principal, or other person having control or direction of any person employed at any labor or responsible directly or indi- rectly for the wages of another. (2) The term "employee" shall mean and include every person who is in receipt of or is entitled to any compensation for labor performed for any employer. (3) The term "wage" and the term "wages" shall each mean any compensation for labor measured by time, piece or otherwise. (4) The term "welfare" shall mean and include rea- sonable comfort, reasonable physical well-being, decency, and moral well-being. (5) The term "living-wage" shall mean compensa- tion for labor paid, whether by time, piece-work or other- wise, sufficient to enable the employee receiving it to main- tain himself or herself under conditions consistent with his or her welfare. Sec. 1729s — 2. Every wage paid or agreed to be paid by any employer to any female or minor employee, except as otherwise provided in section 1729s — 7, shall be not less than a living-wage. 74 The American Legislation. — Wisconsin Sec. 1729s — 3. Any employer paying, offering to pay, or agreeing to pay to any female or minor employe a wage lower or less in value than a living wage shall be deemed guilty of a violation of sections 1729s — 1 to 17298 — 12, inclusive, of the statutes. Sec. 1729s — 4. It shall be the duty of the industrial commission and it shall have power, jurisdiction and au- thority to investigate, ascertain, determine and fix such reasonable classifications, and to issue general or special orders, determining the living wage, and to carry out the purposes of sections 1729s — 1 to 1729s — 12, inclusive, of the statutes. Such investigations, classifications and or- ders, and any action, proceeding, or suit to set aside, va- cate or amend any such order of said commission, or to enjoin the enforcement thereof, shall be made pursuant to the proceeding in sections 2394 — 41 to 2394 — 70, inclu- sive, of the statutes, which are hereby made a part here- of, so far as not inconsistent with the provisions of sec- tions 1729s — 1 to 1729s — 12, inclusive, of the statutes; and every order of the said commission shall have the same- force and effect as the orders issued pursuant to said sections 2394 — 41 to 2394 — 70, inclusive, of the statutes, and the penalties therein shall apply to and be imposed for any violation of sections 1729s — 1 to 1729s — 12, inclusive, of the statutes. ^ Sec. 1729s— 5. After July 1, 1913, the industrial com- mission may, upon its own initiative, and after July 1, 1914, the industrial commission shall, within twenty days after the filing of a verified complaint of any person set- ting forth that the wages paid to any female or minor employee in any occupation are not sufficient to enable such employee to maintain himself or herself under con- ditions consistent with his or her welfare, investigate and determine whether there is reasonable cause to believe that the wage paid to any female or nainor employee is not a Jiving wage. Sbc. 1729s— 6. M, upon investigation, the commission finds that there is reasonable cause to believe that the wages paid to any female or minor employee are not a MAIN PKOVISIOxNS OF TIIF. AMERUIAN .AtlXniTM WAGE M'XJISLATION. state Name t'oninitsslon Advisory Board Moiuht'rs and Tenii of txli^-e Ci»ininission Athisory Board I'ower to l'"ix Method of DetLTininiii^ W'a^e Basis of Deteniiiiiiiig Waj^e Special IteKUlations I''or Defoctives I''or I^earners Penal Arkansas Act lUl Minimum Wage Statute provides none Couimtsslou Commissioner of Labor and t^tatistk'S and two womeu Statute provides uoae Mijiimum wages lower or liiglier than rates fixed in tbe Act for women and minor fe- male workers In any occupa- tion except In hotels, restau- rants and telephone estul>llsb- ments Minimum wajie fixed In the Act not less than $1.25 |ier day for ex|)erlcnced female workers. In addition powers of the Cumnilsslon : 1. Investi^:ation. 2. i'ubllc iiearing. 3. Promulgation of higher or lower rate To supply the necessary cost for proper living and to matu- tuiu tbe heaitb and welfare Statute prorldes none Not less than $1.00 a Not less day for not more than than $100 6 months compliauc California Indnstiial Welfare Wage Board (cstabilsh- Cb. 324, Laws 1913; Cumnilsslon meat optional) amended Ch. 571, Laws 1915 6; 4 years Uijual number representatives 1 u wonjau of emi»loyers and employees and a representative of Com- mission Minimum wages, maximum hours luid conditions of labor for women and minors under 18 in any occupation 1. investigation by Comniis-;inn. -. Ueport ;mh1 Ilecmn- mendations by advisory board, subject to change or re- jection by Commission. 3. I'ubllc hearing by Commis- sion, i. Promulgation of order. 5. .Vtter rehearing upon petition or on its own motion, Commission may rescind, alter or amend fu snppl.v necessary cost of proper living anil to malutaiu the health and welfare Speci.il license for wo- Special license for ap- .Not less men renewable semi- prentices and learners; ment for i annually; Commission Commission may fix or both; may flx number cumber iugs only Colorado State Wage Board Statute provides none CU. 110, Laws 1913 Kauaas Industrial Welfare Wage Board L'b. 275, Laws 1915 Commission 3 ; 2 years 1 representative of labor, 1 employer, 1 a woman Statute provides none Mlninuim wages for women and minors under IS in nny mercantile, manufacturing, laundry, hotel, restaurant, tele- phone or telegraph business 1. Same as California. 2. Statute provides none. 3. Same as California. 4. Same as California. 5. Statute provides none To snpi)ly necessary cost of living, to maintain in lienith and supply the necess;iry com- forts of life; also the llnancial Condition of the liuslness Special license for women Statute provides none Not more ment for months, 3; 4 years. 1 a womon 3 representatives of employers, 3 of employees and 1 or more persons to represent public Minimum wages, maximum hours and conditions of labor for women and minors in any occupation 1, 2, 3, and 4. Same as California. 5. Same as Massa- chusetts To supply necessary cost of living and to maintain tbe worker in heaitb Special license Special license for learn- Not less ers and apprentices and than $100 all minors Massacbusetts Ch. 700, Laws 11112; a mended by Ch. 3:U). Ii7:t, Laws 1013, Cb. 368, Laws 1914, Cb. 65, Laws 1915, Cb. 303, Laws 1916 Minimum Wage Commission Wage Board (estalilisb- ment mandatory for women) 3; 3 years 1 may be a woman, 1 an employer of female labor and 1 a representative of labor Equal number representatives of employers and of employees, 1 or more representatives of public Minimum wages for women and minors under 18 in any occupation 1. Same as California. 2. Same as Colifornla. 3. Same as California. 4. Publication of Commission's recommen- dations. Names of employers not paying recommended wage may be published. 5. Upon petition, Commis- sion may reconvene advisory board or establish new one To suiiply necessary cost of living and to maintain the worker in health; also the flnnnclal condition of tbe oc- cupation Same as Colorado Siiechil rates f4)r learn- Name ma ers and apprentices Conimissio paper refl Minnesota Ch. 047, Laws 1913 Mluluium Wage Commission Advisory Board (estab- lishment optional) 3; 2 years Commissioner of Labor, 1 employer of women, 1 woman secretary ■Nebraska Cb. 211, Laws 1913 Minimum Wage Commission Wage Board (establlsb- meut mandatory for women) 3-10 representatives of employ- ers, same of employees, 1 or more representatives of public; at least one-tiftb of all to be women Minimum wages for women and minors under 21 in any occupation 1. Same as California. 2. Public bearing by Commission. 3. Report and recommendations by advisory board (if appointed), subject to change or rejection by Commis- sion. 4. Same as California. 5. On petition, or on its own motion. Commission may order new rates To maintain worker in health and supply the necessary com- forts and conditions of reason- able life Special license for wo- men ; not more than one- tenth of workers era- ployed in any establish- ment Same as Massachusetts l-'or each $10 or mo prison men 10 or mori Oregon Industrial Welfare Conference (establlsb- Cb. 62, Laws 1913; Commission ment optional) amended Cb. 36, Laws 1915 4; 2 years Governor, Deputy Com- missioner of Labor, member Political S c 1 - ence Department of State University, 1 citi- zen of State (1 a woman) Not less than 3 representatives of employers, 3 of employees, and the 3 appointed members of Commission Same as Massacbusetts 1, 2, 3. Same as Californi*. 4. Publication in newspapers Same as Massachusetts of Commission's recommendations and names and pay of employers not paying recommended wage. S. Same as Massachusetts Same as Colorado Same as Massachusetts Pubilcntioi papers bj for newsp 3; 3 years 1 representative of em- ploying class, 1 of em- ployed, 1 of public Not more than 3 representa- tives of employers, 3 of em- ployees, 1 or more commission- ers Same as California 1, 2, 3 and 4. Same as California, none 5. Statute provides To supply necesisary cost of living and to maintain in heaitb Same as Colorado Same as Massacbusetts Utah Cb. 63, Laws 1913 Commissioner of Immigration, Labor and Statistics Statute provides none Minimum wages fixed in tbe Act for women Minimum wages fixed by Act: For experienced adults not less than $1.25 per day Not less than $100 less than 1 3 months. None provided in statute Washington Cb. 174, Laws 1913 ; amended Cb. 6S, Laws 1915 Industrial Welfare Commission Conference (estnblisb- ment optional) 5; 4 years Equal number representatives Minimum wages and conditions ssioner of Labor, of emnlovers and of emoiovees of Inhnr for wompn nnd Tnlnnpa Commissioner of Labor, 4 persons, none of whom bas been within 5 years member of any employ- ers' association or labor union of employers and of employees and 1 or more representatires of public of labor for women and minors under 18 in any occupation 1. Same as California. 2. Public bearing by Commis- sion. 3. Report and recommendations by advisory board (if appointed), subject to change or rejection by Com- mission. 4. Same as California. 5. Same as Massa- cbusetts Females under 18 not Penalty fo: less tban 75 cts. per day; adult learners and apprentices not less tban 90 cts. per day Same as Oregon Same as Colorado Special license, time lim- Not it to be fixed by Com- mission less Wisconsin Cb. 712, Laws 1013 Industrial Commission Advisory Wage Board (estabiisbment manda- tory) 3; 6 years "Selected so as fairly to repre- sent employers, employees and tbe public" Minimum wages, maximum hours and conditions of labor for women and minors in any occupation 1. Same as California. 2. Advisory hoard to assist in determinations. 3. Promulgation of order. 4. Upon petition, bearing may be beld and order cbanged •InoperatlTe since 1916. Compensation sufBrient to en- able employee to maintain him- self or berself under condi- tions consistent with bis or ber welfare Special license for women and minors Minors In a "trade in- Not leas dustry" shall be Inden- than $101 tured MAIN PKOVISJONS OF THE AMERICAN MINIMUM WAGE LEGISLATION. .Meiuliei'8 and Term of t)lllie Coimnlaslon Ailvlsmy Hoard I'ower to Fix Commissioner of Labor and Statistics and two womea Statute provides none Mininnim wapes lower or blKlier than rates Hxed in the Act for women and minor fe- male workers In any ooeupa- tlon except in hotels, restau- rants and telephone estahlish- nieiits 6; 4 years Etinal number representatives 1 u woman of employers and employees and a representative of Com- mission Minimum wages, maximum boms iuid coniUtioiis of labor for women an