Evening Star Newspaper, March 30, 1937, Page 14

Opinion Upholding Washington Minimum Wage Law HE text of the majority opinion of the Supreme Court in the Washington minimum wage case, as delivered by Chief Jus- tice Hughes, follows: This case presents the question of the constitutional validity of the minimum wage law of the State of ‘Washington. . The act, entitled “Minimum Wages for Women,” authorizes the fixing of minimum wages for women and minors. Laws of 1913 (Washington) chapter 174; Remington's revised statutes (1932), section 7623 et seq. It provides: “Section 1. The welfare of the State of Washington demands that women and minors be protected from conditions 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 insanitary con- ditions of labor exert such pernicious effect. “Section 2. It shall be unlawful to employ women or minors in any in- dustry or occupation within the State of Washington under conditions of labor detrimental to their health or It has decided that the statute is a reasoniable exercise of the police power of the State. In reaching that con- clusion the State court has invoked principles long established by this court in the application nf the four- teenth amendment. The State court has refused to regard the decision in the Adkins case as determinative and has pointed to our decisions both before and since that case as justify- ing its position. We are of the opinion | that this ruling of the State court | demands on our part a re-examina- tion of the Adkins case. The import- | ance of the question, in which many | States having similar laws are con- | cerned, the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the State must be considered, make it not only appropriate, but we think imperative, that in deciding the pres- ent case the subject should receive fresh consideration. The history of the litigation of this question may be briefly stated. The minimum wage statute of Washing- ton was enacted over 23 years ago. morals; and it shall be unlawful to employ women workers in any in- | dustry within the State of Wash- | ington at wages which are not ade- quate for their maintenance. “Section 3. There is hereby cre- | ated a commission to be known as the ‘Industrial Welfare Commission’ for the State of Washington, to es- tablish such standards of wages and conditions of labor for women and minors employed within the State of Washington, as shall be held here- under to be reasonable and not detri- mental to health and morals, and which shall be sufficient for the decent maintenance of women.” Machinery Set Up to Ascertain Pay and Conditions. Further provisions required the commission to ascertain the wages and conditions of labor of women and minors within the State. Public hearings were to be held. If after investigation the commission found that in any occupation, trade or in- dustry the wages paid to women were “inadequate to supply them necessary cost of living and to maintain the workers in health,” the commission was empowered to call a conference at representatives of employers and famployes together with disinterested fersons representing the public. The onference was to recommend to the commission, on its request, an esti- mate of a minimum wage adequate for the purpose above stated, and on the approval of such a recommenda- tion it became the duty of the com- mission to issue an obligatory order fixing minimum wages. Any such order might be reopened and the ques- tion reconsidered with the aid of the former conference or a new one. Spe- cial licenses were authorized for the | employment of women who were | “physically defective or crippled by age or otherwise,” and also for ap- | prentices, at less than the prescribed | minimum wage. | By a later act the Industrial Wel- | fare Commission was abolished and | its duties were assigned to the Indus- trial Welfare Committee consisting of | the director of labor and industries, | the supervisor of industrial insurance, the supervisor of industrial relations, the industrial statistician and the supervisor of women in industry. Laws of 1921 (Washington) chapter 7; Remington’s revised statutes (1932), sections 10840, 10893. Chambermaid Sued To Collect Difference in Wages. The appellant conducts a hotel. The appellee Elsie Parrish was employed as a chambermaid and (with her hus- band) brought this suit to recover the | difference between the wages paid her | and the minimum wage fixed pur- | guant to the State law. The minimum | wage was $14.50 per week of 48 hours. The appellant challenged the act as | repugnant to the due process clause | of the fourteenth amendment of the Constitution of the United States. The Supreme Court of the State, reversing the trial court, sustained the statute and directed judgment for the plain- tiffs. Parrish vs. West Coast Hotel Co., 185 Washington 581. The case is here on appeal. The appellant relies upon the de- cision of this court in Adkins vs. Chil- dren’s Hospital, 261 U. 8. 525, which held invalid the District of Columbia, minimum wage act which was at- tacked under the due process clause of the fifth amendment. On the argu- ment at bar, counsel for the appellees attempted to distinguish the Adkins qase upon the ground that the appellee sas employed in a hotel and that the | wpsiness of an innkeeper was affected with & public interest. That effort at | distinction is obviously futile, as it | appears that in one of the cases ruled | by the Adkins opinion the employe was a woman employed as an elevator operator in a hotel. Adkins vs. Lyons, | 261 U. 8. 525, at p. 542. The recent case of Morehead Vs. New York ex rel. Tipaldo, 298 U. S. 587, came here ‘on certiorari to the New York court which had held the New York minimum wage act for women to be invalid. A minority of this court thought that the New York statute was distinguishable in a ma- terial feature from that involved in the Adkins case and that for that and other reasons the New York statute should be sustained. But the Court of Appeals of New York had said | that it found no material difference between the two statutes and this court held that the “meaning of the statute” as fixed by the decision of the State court “must be accepted | here as if the meaning had been spe- cifically expressed in the enactment.” Id., p. 609. That view led to the affirm- ance by this court of the judgment in the Morehead case, as the court considered that the only question be- fore it was whether the Adkins case was distinguishable .and that recon- sideration of that decision had not been sought. Upon that point the court said: “The petition for the writ sought review upon the ground that this case (Morehead) is distinguish- able from that one (Adkins). No application has been made for re- consideration of the constitutional question there decided. The validity of the principles upon which that decision rests is not challenged. This court confines itself to the ground upon which the writ was asked or, granted. . . . Here the review granted was no broader than that sought by the petitioner. . . . He is not entitled and does not ask to be heard upon the question whether the Adkins case should be overruled. He maintains that it may be distinguished on the ground that the statutes are vitally dissimilar.” Id., pp. 604, 605. Wage Statute Upheld By State’s Supreme Court. We think that the question which was not deemed to be open in the Morehead case is open and is neces- sarily presented here. The Supreme Court of Washington has upheld the Prior to the decision in the instant case it had twice been held valid by the Supreme Court of the State. Lar- sen vs. Rice, 100 Washington 642; Spokane Hotel Co. vs. Younger, 113 Washington 359, statute is essentially the same as that enacied in Oregon in the same year. Laws of 1913 (Oregon) chapter 62. The validity of the latter act was sus- tained by the Supreme Court of | Oregon in Stettler vs. O'Hara, 69 Ore- gon 519, and Simpson vs. O'Hara, 70 Oregon 261. These cases, after re- argument, were affirmed here by an equally divided court, in 1917. 243 U. S. 629. The law of Oregon thus continued in effect. The District of Columbia minimum wage law (40 statute 960) was enacted in 1918. The statute was sustained by the Supreme Court of the District in the Adkins case. Upon appeal the Court of Ap- peals of the District first affirmed that ruling but on rehearing reversed it and the case came before this court in 1923. The judgment of the Court of Ap- peals holding the act invalid was affirmed, but with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice | Sanford dissenting, and Mr. Justice Brandeis taking no part. The dis- senting opinions took the ground that the decision was at variance with the principles which this court had frequently announced and applied. In 1925 and 1927, the similar mini- mum wage statutes of Arizona and Arkansas were held invalid upon the authority of the Adkins case. The justices who had dissented in that case bowed to the ruling and Mr. Justice Brandeis dissented. Murphy vs. Sardell, 269 U. S. 530; Donham vs. West-Nelson Co., 273 U. S. 657. The question did not come before us again until the last term in the Morehead ase, as already noted. In that case, briefs supporting the New York stat- ute were submitted by the States of Ohio, Connecticut, Illinois, Massa- chusetts, New Hampshire, New Jersey and Rhode Island. 298 U. S., p. 604, note. Throughout this entire period the Washington statute now under consideration has been in force. Constitutional Liberty | Is Subjected to Regulation. The principle which must control our decision is not in douht. The con- stitutional provision invoked is the due process clause of the fourteenth amendment governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohib- iting that deprivation the Constitution does not recognize an absolute and un- controllable liberty. Liberty in each of its phases has its history and connota- tion. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the re- straints of due process, and regula- tion which is reasonable in relation to its subject and is adopted in the in- terests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular. More than 25 years ago we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the fourteenth amendment had been broadly described: “But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to con- tract as one chooses. The guaranty of liberty does not withdraw from legis- lative. supervision that wide depart- ment of activity which consists of the making of contracts, or deny to govern- ment the power to provide restrictive safeguards. Liberty implies the ab- sence of arbitrary restraint, not im- munity from reasonable regulations and prohibitions imposed in the inter- ests of the community.” Chicago, Burl- ington & Quincy R. R. Co. vs. McGuire, 219 U. S. 549, 565. Power Over Contracts of Employer and Worker Undeniable. This power under the Constitution to restrict freedom of contract has had many illustrations. That it may be exercised in the public interest with respect to contracts between employer and employe is undeniable. Thus statutes have been sustained limiting employment in underground mines and smelters to eight hours a day (Holden vs. Hardy, 169 U. S. 366); in requiring redemption in cash of store orders or other evidences of indebted- ness issued in the payment of wages (Knoxville Iron Co. vs. Harbison, 183 U. 8. 13); in forbidding the payment of seaman’s wages in advance (Pat- terson vs. Bark Eudora, 190 U. 8. 169) ; in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal instead of the weight of the coal as originally produced in the mine (McLean vs. Arkansas, 211 U. 8. 539); in prohibit- ing contracts limiting liability for in- juries to employes (Chicago, Burling- ton & Quincy R. R. Co. vs. McGuire, supra); in limiting hours of work of employes in manufacturing establish- ments- (Bunting vs. Oregon, 243 U. S. 426); and in maintaining workmen's compensation laws (New York Ce tral R. Co. vs. White, 243 U. S. 18! Mountain Timber Co. vs. Washington, 243 U. 8. 219). In dealing with the relation of employer and employed, the Legislature has necessarily a wide fleld of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome condi= tions of work and freedom from op- minimum wage statute of that State. A pression. Chicago, Burlington & ~ t The Washington | THE EVENING Quincy R. R. Co. vs. McGuire, supra, p. 570. The point that has been strongly stressed that adult employes should be deemed competent to make their own contracts was decisively met nearly 40 years ago in Holden vs. Hardy, supra, where we pointed out the inequality in the footing of the parties. We said (Id. 397): “The Legislature has also recognized the fact, which the experience of legislators in many States has cor- roborated, that the proprietors of these establishments and their opera- tives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The for- mer naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regulations which their Jjudgment, fairly exercised, would pro- nounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically con- strained to obey them. In such cases self-interest is often-an un- safe guide, and the Legislature may properly interpose its authority.” State Retains Interest In Welfare of Employe. And we added that the fact “that | both parties are of full age and competent to contract does not neces- | sarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected | against himself.” “The State still re- tains an interest in his welfare, how- ever reckless he'may be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrified or neglected, the State must suffer.” It is manifest that this established principle is peculiarly applicable in | relation to the employment of women | in whose protection the State has a special interest. That phase of the | subject received elaborate considera- tion in Muller vs. Oregon (1908), 208 U. S. 413, where the constitutional | authority of the State to limit the working hours of women was sus- | tained. We emphasized the consid- | eration that “woman’s physical struc- ture and the performance of maternal | functions place her at a disadvantage {in the struggle for subsistence” and that her physical well being ‘“becomes | an object of public interest and care | in order to preserve the strength and | vigor of the race.” We emphasized | the need of protecting women against oppression despite her possession of contractual rights. We said that | though limitations upon personal and contractual rights may be removed by legislation, there is that in her dispo- sition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real quality of right.” Hence she was ‘“properly | placed in a class by herself, and legis- lation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained.” We | concluded that the limitations which | the statute there in question “placed | upon her contractual powers, u:on‘r her rght to agree with her employer | as to the time she shall labor” were | “not imposed solely for her benefit, but also largely for the benefit of all.” Again, in Quong Wing vs. Kirkendall, 223 U. S. 59, 63, in referring to a differentiation with respect to the em- ployment of women, we said the four- teenth amendment did not interfere with State power by creating a “fic- titious equality.” We referred to rec- ognized classifications on the basis of sex with regard to hours o. work and in other matters, and we observed that | the particular points at which that | difference shall be enforced by legis- | | 1ation were largely in the power of the | | State. In later rulings this court | sustained the regulation of hours of | | work of women employes in Riley vs. Massachusetts, 232 U. S. 671 (fac- | | tories), Miller vs. Wilson, 236 U. S. | 373 (hotels), and Bosley vs. McLaugh- lin, 236 1. S. 385 (hospitals). Observations of Taft and Holmes Are Recalled. This array of precedents and the principles they applied were thought by the dissenting justices in the Adkins case to demand that the minimum wage statute be sustained. The va- lidity of the distinction made by the court between a minimum wage and a maximum of hours in limiting lib- erty of contract was especially chale lenged. 261 U. S., p. 564. That chal- lenge persists and is without any satisfactory answer. As Chief Justice Taft observed: “In absolute freedom of contract the one term is as im- portant as the other, for both enter equally into the consideration given and received, a restriction as to the one is not greater in essence than the other and is of the same kind. One is the multiplier and the other the multiplicand.” And Mr. Justice Holmes, while recognizing that “the distinctions of the law are distinc- tions of degree,” could “perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any concern, between the one case and the other. The bargain is equally affected whichever half you regu- late.” Id., p. 569. One of the points which was pressed by the court in supporting its ruling in the Adkins case was that the stand- ard set up by the District of Colum- bia act did not take appropriate ac- count of the value of the services rendered. In the Morehead case, the minority thought that the New York statute had met that point in its definition of a “fair wage” and that it accordingly presented a distinguish- able feature which the court could recognize within the limits which the Morehead petition for certiorari was deemed to present. The court, how=- ever, did not take that view, and the New York act was held to be essen- tially the same as that for the Dis- trict of Columbia. The statute now before us is like the latter, but we are unable to conclude that in its minimum wage requirements the State has passed beyond the boundary of its broad protective power. ‘The minimum wage law to be paid under the Washington statute is fixed after full consideration by representa- tives of employers, employes and the public. It may be assumed that the minimum wage is fixed in considera- tion of the services that are performed in the particular occupations under normal conditions. Provision is made for special licenses at less wages in | rants at night | ford Fire Insurance Co., 282 U. S. 251, the case of women who are incapable of full service. The statement of Mr. Justice Holmes in the Adkins case is pertinent: “This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum re- quirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages unless they earn them, or un- less the emplor=='a business can sus- 7’ STAR, tain the burden. In short the law in its character and operation is like hundreds of so-called police laws that have been upheld.” 261 U. 8., p. 570. And Chief Justice Taft forcibly point- ed out the consideration which is basic in a statute of this character: “Leg- islatures which adopt a requirement of maximum hours or minimum wages may be presumed to believe that when sweating employers are prevented from paying unduly low wages by positive law they will continue their business, abating that part of their profits, which were wrung from the necessi. ties of their employes, and will con: cede the better terms required by the law; and that while in individual cases hardships may result, the re- striction will enure to the benefit of the general class of employes in whose interest the law is passed and so to that of the community at large.” 1d., p. 563. Adkins Case Is Held Departure in Application. We think that the views thus ex- pressed are sound and that the deci- sion in the Adkins case was a de- parture from the true application of the principles governing the regula- tion by the State of the relation of | employer and employed. Those princi- | | ples have been reinforced by our sub-| sequent decisions. Thus in Radice vs New York, 264 . S. 292, we sustained | the New York statute which restricted the employment of women in restau= In O'Gorman vs. Hart- which upheld an act regulating the commissions of insurance agents, we pointed to the presumption of the con- | stitutionality of a statute dealing with | a subject within the scope of the po- lice power and to the absence of any factual foundation of record for de- ciding that the limits of power had been transcended. In Nebbia vs. New York, 291 U. S. 502, dealing with the New York statute providing for min- imum prices for milk, the general sub- Ject of the regulation of the use of | private property and of the making | of private contracts received an ex- haustive examination and we again declared that if such laws “have a| reasonable relation to a proper legis- lative purpose, and are neither arbi-| trary nor discriminatory, the require- | ments of due process are satisfied” that “with the wisdom of the policy adopted, with the adequacy or prac- | ticability of the law enacted to for= | ward it, the courts are both incom- petent and unauthorized to deal”; that “times without number we have said that the Legislature is primarily the judge of the necessity of such an enactment, that every possible pre- sumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.” Id., pp. 537, 538. With full recognition of the earnest- | ness and vigor which characterize the prevailing opinion in the Adkins case, we find it impossible to reconcile that | ruling with these well-considered | declarations. What can be closer to| the public interest than health of| women and their protection from un-| scrupulous and overreaching employ- | ers? And if the protection of women| : is a legitimate end of the exercise ofi State power, how can it be said that| the requwirement of the payment of a| minimum wage fairly fixed in order to | meet the very necessities of existence is | not an admissible means to that end? The Legislature of the State was clear- ly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak and that they are the ready victims of those who| would take advantage of their necessi- | tous circumstances. The Legislature| was entitled to adopt measures to re- duce the evils of the “sweating sys- tem.” the exploiting of workers at | wages so low as to be insufficient to| meet the bare cost of living thus mak- ing their very helplessnes the occa- sion of a most injurious competition. The Legislature had the right to con- sider that its minimum wage require- ments would be an important aid in carrying out its policy of protection. ‘The adoption of similar requirements by many States evidences a deep- seated conviction both as to the pres- ence of the evil and as to the means adapted to check it. Legislative re- sponse to that conviction cannot be regarded as arbitrary or capricious and that is all we have to decide. Even if the wisdom of 3@ porcy pe regarded as debatable and its effects uncertain, still the Legislature is en- titled to its judgment. There is an additional and compell- oG TO NEW yop. 7 N | @ At the glamorous Hotel Penn- sylvania, just across from the Pennsylvania Station—that’s where things in New York start. Brilliant lounges, salons, restau- rants and bar glow with gay ac- tivity. Cheery, spacious bedrooms feature delightful innovations, You’re in the centerof things, and convenient to everywhere! 2200 ROOMS each with private PENNSYLVANIA STATLER OPERATED ACROSS FROM PENNSYLVANIA STATION, N.Y Frame & ¥ e oD WASHINGTON, | for relief which arose during the re- | continue to an alarming extent despite D. C., TUESDAY, ing consideration which recent eco- nomic experience has brought into a strong Hght. The exploitation of a class of workers who are in an un- equal position with respect to bar- gaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called | upon to pay. The bare cost of living | must be met. We may take judicial | otice of the unparallelled demands cent period of depression and still the degree of economic recovery which | has been achieved. It is unnecessary | to cite official statistics to establish what is of common knowledge through the length and breadth of the land. While in the instant case no factual brief has been presented, there is no reason to doubt that the State of Washington has encountered the same social problem that is present else- where. The community is not bound to provide what is in effect a subsidy for unconscionable employers. The community may direct its law-making power to correct the abuse which springs from their selfish disregard of | the public interest. The argument | that the legislation in question consti- | tutes an arbitrary discrimination, be- | cause it does not extend to men, is un- | availing. This court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The Legislature “is free to recognize | degrees of harm and it may confine its restrictions to those classes of cases » I ¥ 409 1 - x © = o [} = o > a < -4 o wi £ v P < 3 - < d J, S5 o > i MARCH 30, 1937. where the need is deemed to be clearest.” If “the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.” There is no “doctrinaire requirement” that the legislation should be couched in all embracing terms. Carroll vs. Green- wich Insurance Co., 199 U. S. 401, 411; Patsone vs. Pennsylvania, 232 7). 8. 138, 144; Keokee Coke Co. vs. Tay- lor, 234 U. 8. 224, 227; Sproles vs. Bin- ford, 286 U. S. 374, 396; Semler vs. Oregon Board, 294 U. S. 608, 610, 611. This familiar principle has repeatedly been applied to legislation which singles out women, and particular classes of women, in the exercise of the State's protective power. Miller vs. Wilson, supra, p. 384; Bosley vs. McLaughlin, supra, pp. 394, 395; Ra- dice vs. New York, supra, pp. 295-298. ‘Their relative need in the presence of the evil, no less than the existence of the evil itself, is a matter for the legis- | lative judgment. Our conclusion is that the case of Adkins vs, Children’s Hospital, supra, should be, and it is, overruled. The Jjudgment of the Supreme Court of the State of Washington is affirmed. TheBestRemedy “\ /s Made at Home OU can now make at bome a better gray hair remedy than you can buy. by following this simple re- cipe: To half pint of water add one ounce of bay rum, mall box of Barbo Com- ounceof glycerine. Any ruggist can put this up or you can mix self at very little cost. Apply to the hair twice & week until the desired shade is obtained. 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