"The first object of a free people is the preservation of their liberty. This spirit of liberty, is, indeed, a bold and fearless spirit; but it is also a sharp-sighted spirit; it is a cautious, sagacious, discriminating, far-seeing intelligence; it is jealous of encroachment, jealous of power, jealous of men. It demands checks; it seeks for guards; it insists on securities; it intrenches itself behind strong defenses, and fortifies with passion. It does not trust the amiable weakness of human nature, and therefore it will not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic purpose come along with it."

Daniel Webster, May 7, 1834.

The right to labor and to its protection from unlawful interference is a constitutional as well as a common-law right. Every man has a natural right to the fruits of his own industry.

Labor is deemed to be property, especially within the meaning of constitutional guaranties. Thus, the right to acquire property includes the right to acquire property by labor, enabling him to possess the necessities of life. For most individuals in today's modern society direct production of the necessities of life is out of the question. Each of us is dependent on gaining access to a variety of goods, whether by direct production or by acquiring these goods by some other means, by the payment of money. But to obtain money, anyone without an independent "income" must sell his labor. No other access to a livelihood is left open to him but to exchange his labor for remuneration, or wages. The right to earn wages is just as much property and within the protection of the due process clauses of the Constitution as earned wages.

Since the right to labor is protected by the Constitution and numerous guaranties of state constitutions, one cannot be deprived of such right by arbitrary mandate of the state legislatures and/or by the Federal government.

As a general principle, every member of a community has a right to enjoy a free labor market, to have a free flow of labor for the purpose of carrying on the business in which he has chosen to embark. This right is not merely an abstract one; it is one recognized as the basis of a cause of action where there is an unlawful interference therewith. Specifically, laborers have a right to a free and open market in which to dispose of their labor, or a right to a free access to the labor market for the purpose of maintaining or increasing the incorporeal value of their capacity to labor. A laborer has the same right to sell his labor as any other property owner.

When an individual cannot obtain a decent livelihood through the sale of his labor, it is either because the market value of what he has to sell is too low, or because he cannot in fact sell his services for as much as they are worth on the market - that is, either because he holds low cards, or because he lacks the skill, knowledge or time to play his cards well. In the early twentieth century, it was decided by several state legislatures, that, notoriously, women without independent means were apt to suffer from one or the other of the handicaps mentioned above. To help prevent such events from happening these states adopted minimum wage laws pertaining to women and minors.

The first attempt at general regulation of working conditions of employees in private industry was the Minimum Wages for Women Law of the State of Washington,Footnote1 authorizing the establishment of minimum wages for women and minors.

Many other states followed Washington's lead in enacting similar legislation. In 1918 Congress, as the local legislative body for the District of Columbia, enacted, under its police power, a minimum wage law for women and minors employed in the district.Footnote2 The law was similar to that of the State of Washington under which a wage board was empowered to inquire into and fix wages for women and minors with the objectives of meeting "the necessary cost of living and maintaining good health."

The advocates of the District of Columbia Act, before a committee of Congress, conceded that the liberty of men to contract for sub-living wages, could not be taken away because men were free and able to attack and resist unfair practices and abuses by employers, but contended that women were physically inferior and mentally different, yield easily to the duress of necessity; that they were susceptible to wage oppression by unscrupulous employers was proved by the commonly known fact that great numbers who work did not receive a living wage. Even if women, married or single, may vote, sit on juries and on judicial benches, hold public office, acquire and dispose of property, carry on business and incur obligations, nevertheless women, married or single, who work for wages that did not exclusively sustain them in physical and moral health were not legally competent and should have the guardianship of the law against their employers and against themselves in their own and the public interest. The committee reported this bill without dissent, and Congress all but unanimously passed the law and President Wilson promptly signed it on September 19, 1918.Footnote3

Minimum wage and maximum hour legislation for women and minors were also enacted by the States of Ohio, Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey, Rhode Island, Arizona, Arkansas and Oregon.

The first federal legislation relating to this subject pertained only to hours of work. The earliest enactment by Congress provided for an eight-hour work day for laborers and mechanics engaged in public works, either by the government itself or private contractors engaged by the Government.Footnote4 Several other acts followed which regulated in the field of interstate transportation, relating to railway employees. As a part of this general regulation, establishing a maximum 16-hour workday for railway employees, a 13-hour workday for railway employees directly concerned with the movement of trains in places of work operated only in the daytime, and a maximum nine-hour day for employees of railways operating on a basis of 24 hours per day, was provided for.

In the field of federal legislation pertaining to wages, hours and child labor, the most important was the National Industrial Recovery Act which was struck down by the United States Supreme Court as an unconstitutional exercise of the right to regulate hours of work, wages and child labor provided in section 7(a) of the act. The National Industrial Recovery Act as previously discussed in Chapter 7, attempted general regulation of wages, hours and child labor in all industries. But the Supreme Court found the Act as beyond the power of Congress to legislate in the field of intrastate commerce.

The constitutional question as to the validity of minimum wage laws first came before the courts in 1914, when, in two decisions,Footnote5 the Supreme Court of Oregon held that minimum wage legislation for women and minors was valid. Seven judges favored the state legislation and none opposed it. One of these cases was appealed to the United States Supreme Court.Footnote6 The Court on April 13,1917, per curiam, affirmed that judgment, by a four to four vote. Mr. Justice Brandeis, having been of counsel, did not sit. The tie vote settled nothing. No opinions were written, no authorities cited, no rule laid down, no precedent established. The appellants were assessed the costs, and it was settled that in Oregon such a law was valid. The constitutional question was left without a final answer. In 1918, a minimum wage statute covering the employment of women and minors was passed for the District of Columbia.Footnote7 This gave rise to the Adkins case, which was decided in 1921 by the Court of Appeals of the District of Columbia in favor of the statute as constitutional. The vote was two in favor and one opposed. But one of the justices favoring the legislation was sitting pro tempore. When the regular justice returned, he, with the previously dissenting judge, granted a rehearing. On this occasion, the former favorable decision was reversed by a two to one vote. This left that tribunal divided two to two.

The District of Columbia's adverse decision was appealed to the United States Supreme Court, where it was affirmed on April 9, 1923 by a five to three vote. Mr. Justice Brandeis did not participate. Mr. Justice Sutherland wrote the majority opinion. Essentially the facts were that the Children's Hospital of the District of Columbia, a corporation and Miss Willie Lyons an adult woman employee of a hotel sought to enjoin the enforcement of the District of Columbia's minimum wage law, because it would throw her out of employment. Miss Lyons averred that she had had satisfactory employment as an elevator operator at the Congress Square Hotel where she earned $35 a month and two meals a day, that because of the minimum wage law she lost her job, that she couldn't possibly get another as good, if at all, that the board established by the Act to set minimum wage standards, had unlawfully interfered with her employment contract and caused her employer to discharge her. The Hospital averred that its women employees who received less than the board minimum were satisfied with their pay, and it had the right to employ them at the pay they were willing to accept in spite of the Act. The prevailing opinion by Mr. Justice Sutherland said that it was no longer open to question that the right to contract about one's affairs is part of the liberty of the individual protected by the due process clause of the Fifth Amendment.

Just what was decided in the Adkins case was that an adult woman in the District of Columbia, could not be deprived by an Act of Congress of the liberty to earn money merely because she was not able to earn, or does not choose to work hard enough to earn, a wage sufficient of itself to maintain the average woman in health and morals, and that an employer could not be deprived of the correlative right to employ adult women at free contract wages. The belief of Congress that to penalize employers for paying sub-standard wages to women who were willing to accept them, would improve the wages and so the health and morals of many underpaid women, was held not to invest the Act with the quality of due process of law.

Within this liberty, declared Mr. Justice Sutherland, are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as a result of private bargaining.

The Supreme Court recognized that while legislation fixing hours of work conditions may bring into account the physical differences between men and women, it flatly rejected the doctrine that women were required or may be subjected to restrictions upon their liberty of contract, which could not be imposed on men under similar circumstances. Said Mr. Justice Sutherland, this law is "simply and exclusively a price fixing law confined to adult women who are legally as capable of contracting for themselves as men."

After a brief summary of the statute, the opinion passed to the constitutional consideration. As a preface, Mr. Justice Sutherland said:

"This law is not at all like any of those which have been sustained. It forbids two lawful persons, under penalties to one, to contract freely with one another in respect to the price for which one will render service to the other in a purely private employment, where both are willing or anxious to agree. It compels the one to surrender a desirable engagement and the other to discharge or dispense with a desirable employee. The wage standard fixed by the Act is vague and impractical. It ignores personal habits of thrift and unthrift, and family cooperation, and other differences between individuals as well as any independent resources she may have. The relations between morals and earnings is incapable of standardization. In an attempt to regulate morals the law is without reasonable basis. As well raise men's pay by statute to make them honest. The price fixed by the board need have no relation to the capacity or earning power of the employee, the number of hours that may constitute a day's work, the character of the work, the character of the place, the circumstances of the employment. The law applies to every occupation in the district, but to some occupations it grants $16.50 a week, to others $15, and to beginners in one $9. To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person for whose condition there rests upon him no peculiar responsibility and in effect arbitrarily shifts to his shoulders a burden which if it belongs to anybody belongs to society as a whole. The necessities of the employee are alone considered and these arise outside of the employment, are the same when there is no employment and as great in one occupation as in another. In principle there is no difference between the case of selling labor and the case of selling goods. To sustain the individual freedom contemplated by the constitution is not to strike down the common good but to exalt it; the good of society cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members."

Chief Justice Taft, dissenting with the majority opinion, conceding that the boundary of the police power was difficult to mark, and that it was a disputable question whether maximum hours or minimum wage laws did not make the case of the oppressed employee worse than it was before, said that legislatures believe that such laws did ensure to the benefit of the employee and so to that of the community. If the boundary of the police power may include maximum hours, as it was settled that it may, it should not, on the basis of reason, experience or authority, exclude a minimum wage because the Congress has the right to believe that long hours and low wages were equally harmful to the worker. The wage term has been regulated repeatedly, and in Bunting v. OregonFootnote8 it was settled that a worker must accept no less than 50% more than his usual wage for overtime. The Chief Justice said he was not expressing an opinion that a minimum wage limitation could be enacted for men, but it was enough to say that this law applied only to women.Footnote9

Speaking of the freedom of contract, the Chief Justice said:

"In absolute freedom of contract the term is as important as the other, for both enter equally into the consideration given or received, a restriction as to one is not any greater in essence than the other, and is of the same kind."Footnote10

And Mr. Justice Holmes in his dissenting opinion added:

"I confess that I do not understand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit the power to fix a maximum for their hours of work. The bargain is equally affected whichever half you regulate."Footnote11

The fact remains that a majority in the Supreme Court did hold the act unconstitutional. However, this holding was rather narrow. It was limited in terms to the case of an adult; and further, it was limited to a statute which used only the amount necessary to maintain the employee in health and good morals as the basis for setting the wage. But when, in 1925 and 1927, ArizonaFootnote12 and ArkansasFootnote13 minimum wage laws were appealed to the Supreme Court, they were held invalid in memorandum opinions "on the authority of Adkins v. Children's Hospital." Mr. Justice Brandeis dissented in each opinion.

After the Adkins decision the Supreme Court steadfastly affirmed the views of liberty and due process there expressed. The Arizona law requiring payment of at least $16 a week for women workers, and the Arkansas law requiring minimum wages of $1.25 a day for all female workers with six months experience and $1.00 a day for those with less than six months experience, were rejected as repugnant to the due process clause of the Fifth Amendment. Both decisions were per curiam,Footnote14 as is the custom when the question has been clearly foreclosed by prior decision. Chief Justice, Taft, concurred. Mr. Justice Brandeis noted a dissent. Mr. Justice Holmes made a note that he was concurring because he felt bound by the Adkins decision. The courts of Kansas and Minnesota overruled similar enactment's of their own states.Footnote15

Needless to say, the Adkins case did not change the popular economic thought which had given rise to minimum wage legislation, regardless of the reasoning. As Mr. Justice Sutherland said in the Adkins decision:

"But a statute which prescribes payment solely with relation to circumstances apart from the contract of employment, the business affected by it and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States."Footnote16

Note that he did not say that need could not be considered. But he did not give any clue as to what he would consider a valid basis than the statement:

"A statute requiring the employer to pay in money, to pay at prescribed and regular intervals, to pay the value of the services rendered, even to pay with a fair relation to the extent of the benefit obtained from the service, would be understandable."Footnote17

Obviously with these thoughts in mind, the New York Legislature in 1933 framed a statute whereby the minimum wage of women was to be determined by a consideration of both "the fair and reasonable value of the services rendered," and an amount "sufficient to meet the minimum cost of living necessary for health."Footnote18 Thus a patent attempt was made to frame such a standard as would pass the scrutiny of the Supreme Court. In fact, the New York legislature passed two minimum wage measures and contemporaneously submitted them to the governor. One was approved; the act regulating minimum wages for women. The other was vetoed and did not become law because it applied to men as well as women employees.

On June 1, 1936, the Supreme Court of the United States declared the New York Minimum Wage Act invalid as an interference with the rights of freedom of contract, in violation of the Fourteenth Amendment of the Federal Constitution.

The case was brought by way of habeas corpus originating in the Supreme Court of New York. Relator, Tipaldo, as owner of a laundry, was jailed for failing to obey a mandatory order of the state industrial commissioner prescribing minimum wages for women employees. It was contended by the relator that the statute, under which the commissioner made the order, which purports to authorize the commissioner to fix women's wages, was violative of the due process clause of the Fourteenth Amendment to the Constitution of the United States. The contention was grounded upon the claim that the statute in question was substantially identical with that enacted by Congress for the District of Columbia, which in 1923 was declared unconstitutional as repugnant to the due process clause of the Fifth Amendment in the Adkins case. The Supreme Court, adhering to the principles laid down in the Adkins case, upheld the relator's contention, and declared the New York statute unconstitutional.

The New York Minimum Wage Act encompassed women and minors in any "occupation" which "shall mean an industry, trade or business or branch thereof or class of work therein in which women or minors are gainfully employed, but shall not include domestic service in the home of the employer or labor on a farm." The Act was not an emergency law. It did not regulate hours or any conditions affecting safety or protection of employees.

Mr. Justice Butler delivered the majority opinion. His opinion was devoted in large measure to the question of whether the case is controlled by Adkins v. Children's Hospital,Footnote19 or whether the statute so differs from that involved in that case as to require a different decision.

To emphasize this aspect of the case, Mr. Justice Butler said:

"The Adkins case, unless distinguishable, requires affirmance of the judgment below. The petition for the writ sought review upon the ground that this case is distinguishable from that one. No application has been made for reconsideration of the constitutional question there decided. The validity of the principles upon which that decision rests are 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."Footnote20

The principal difference between the statute covered by the Adkins case and that involved here was that the former (a statute of Congress relating to the District of Columbia) condemned wages inadequate to maintain women workers in good health and to protect their morals, whereas the New York Act prescribed an additional standard that the wage would be commensurate with the value of the service rendered. The majority opinion then outlined the statutory provisions as to the method of determining the minimum wage. As the fairness of such procedure was not in controversy, it will suffice to point out that the Act declares, for administrative guidance, that the commissioner and the wage board, without being bound by any technical rules of evidence or procedure, may consider all relevant circumstances affecting the value of the service, may be guided by considerations like those guiding a court in a suit to determine wages to be paid where the contract fails to provide the compensation, and may consider wages paid in the State for work of comparable character by employers who voluntarily maintain minimum fair wage standards. After proceedings before a wage board and before the industrial commissioner, the latter may make a directory order defining minimum fair wage rates, and such order, after nine months and a further hearing, may be made mandatory.

Summing up the principal differences between the two Acts, the opinion states:

"Thus it appears: The minimum wage provided for in the District Act was one not less than adequate 'to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals.' The New York Act defines an oppressive and unreasonable wage as containing two elements. The one first mentioned is: 'less than the fair and reasonable value of the services rendered.' The other is: 'less than sufficient to meet the minimum cost of living necessary for health.' The basis last mentioned is not to be distinguished from the living wage defined in the District act. The exertion of the granted power to prescribe minimum wages is by the State act conditioned upon a finding by the commissioner or other administrative agency that a substantial number of women in any occupation are receiving wages that are oppressive and unreasonable, i.e., less than value of the service and less than a living wage. That finding is essential to jurisdiction of the commissioner."Footnote21

Attention was then given to the construction placed upon the New York Act by the Court of Appeals of that State, and emphasis was placed upon its construction that the statute imposed both the standard of a living wage and of a wage commensurate with the value of the services rendered. Quoting from the opinion of the Court of Appeals, Mr. Justice Butler said:

"The opinion continues: 'This is a difference in phraseology and not in principle. The New York act, as above states, prohibits an oppressive and unreasonable wage, which means both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health. The act of Congress had one standard, the living wage; this State act has added another, reasonable value. The minimum wage must include both. What was vague before has not been made any clearer. One of the elements, therefore, in fixing the fair wage is the very matter which was the basis of the congressional act. Forcing the payment of wages at a reasonable value does not make inapplicable the principle and ruling of the Adkins case. The distinctions between this case and the Adkins case are differences in details, methods and time; the exercise of legislative power to fix wages in any employment is the same.'"Footnote22

The petitioner's contention that the Court of Appeals had erroneously construed the Act was then considered. As to this contention Mr. Justice Butler stated that the construction of the state court, that the prescribed standard includes the cost of living, was binding on the Supreme Court, and said:

"There is no blinking the fact that the state court construed the prescribed standard to include cost of living or that petitioner here refuses to accept that construction. Petitioner's contention that the Court of Appeals misconstrued the Act cannot be entertained. This court is without power to put a different construction upon the state enactment from that adopted by the highest court of the State. We are not at liberty to consider petitioner's argument based on the construction repudiated by that court. The meaning of the statute as fixed by its decision must be accepted here as if the meaning had been specifically expressed in the enactment. Exclusive authority to enact carries with it final authority to say what the measure means. The standard of 'minimum fair wage rates' for women workers to be prescribed must be considered as if both elements - value of service and living wage - were embodied in the statutory definition itself. As our construction of an Act of Congress must be deemed by state courts to be the law of the United States, so this New York Act as construed by her court of last resort, must here be taken to express the intention and purpose of her lawmakers.

"The state court rightly held that the Adkins case controls this one and requires that relator be discharged upon the ground that the legislation under which he was indicted and imprisoned is repugnant to the due process clause of the Fourteenth Amendment."Footnote23

Attention was then given to the scope and effect of the Adkins decision. In this connection it was observed that the Act here extends to nearly all private employers of women, but does not extend to men.

"Upon the face of the act the question arises whether the State may impose upon the employers state-made minimum wage rates for all competent experienced women workers whom they may have in their service. That question involves another one. It is: Whether the State has power similarly to subject to state-made wages all adult women employed in trade, industry or business, other than house and farm work. These were the questions decided in the Adkins case. So far at least as concerns the validity of the enactment under consideration, the restraint imposed by the due process clause of the Fourteenth Amendment upon legislative powers of the State is the same as that imposed by the corresponding provision of the Fifth Amendment upon the legislative power of the United States."Footnote24

A summary then followed as to the matters considered in the Adkins case. Chief among these was the protection of freedom of contract under the due process clause. While recognizing that the right is in some respects subject to limitation, it was expressly stated there that though the physical differences between men and women may be recognized in fixing the hours and conditions of work, women "may not be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances," and that the Court has been careful, in its consideration of laws relating to the hours of labor "to disclaim any purpose to uphold the legislation as fixing wages, thus recognizing an essential difference between the two."

Then follows what is perhaps the most significant statement in the opinion:

"The decision and the reasoning upon which it rests clearly show that the State is without power by any form of legislation to prohibit, change or nullify contracts between employers and adult women workers as to the amount of wages to be paid."Footnote25

The condemnation, as stated in the Adkins case, of the vagueness and impracticability of the living wage standard was also referred to, and emphasis placed on the fact that the standard remains in the New York Act, despite the addition of another standard, the fair value of the services. Finally, the opinion turns to the question whether the Adkins case was based primarily on considerations as to the standard to be made controlling as to wages or as to the power to regulate wages of adult women. Concluding that the latter was the dominant factor, Mr. Justice Butler said:

"Petitioner does not attempt to support the Act as construed by the state court. His claim is that it is to be tested here as if it did not include the cost of living and as if value of service was the sole standard. Plainly that position is untenable. If the State has power to single out for regulation the amount of wages to be paid women, the value of their services would be a material consideration. But that fact has not relevancy upon the question whether the State has any such power. And utterly without significance upon the question of power is the suggestion that the New York prescribed standard includes value of service with cost of living whereas the District of Columbia standard was based upon the latter alone. As shown above, the dominant issue in the Adkins case was whether Congress had power to establish minimum wages for adult women workers in the District of Columbia. The opinion directly answers in the negative. The ruling that defects in the prescribed standard stamped that Act as arbitrary and invalid was an additional ground of subordinate consequence."Footnote26

The opinion discusses the "factual background" of the Act also, and compares it with the factual background set forth in an act concurrently passed as an emergency measure applicable to men as well as to women. The latter act was vetoed and did not become law. The two factual backgrounds were thought, however, to illustrate the arbitrary character of the Act in force, since women are placed under restrictions from which their male competitors are free. In regard to this Mr. Justice Butler said:

"It is significant that their 'factual backgrounds' are much alike. They are indicated in the margin. These legislative declarations, in form of findings or recitals of fact, serve well to illustrate why any measure that deprives employers and adult women of freedom to agree upon wages, leaving employers and men employees free so to do, is necessarily arbitrary. Much, if not all that in them is said in justification of the regulations that the Act imposes in respect of women's wages apply with equal force in support of the same regulation of men's wages. While men are left free to fix their wages by agreement with employers, it would be fanciful to suppose that the regulation of women's wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous employers. Men in greater number than women support themselves and dependents and because of need will work for whatever wages then can get and that without regard to the value of the service and even though the pay is less than minimum prescribed in accordance with this Act. It is plain that, under circumstances such as those portrayed in the 'Factual background,' prescribing of minimum wages for women alone would unreasonably restrain them in competition with men and tend arbitrarily to deprive them of employment and a fair chance to find work."Footnote27

In conclusion, the doctrine of the Adkins case was reaffirmed:

"The New York court's decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the Arizona case the attorney general sought to distinguish the District of Columbia from the legislation then before us and insisted that the latter was a valid exertion of the police power of the State. Counsel for the California commission submitted a brief amicus curiae in which he elaborately argued that our decision in the Adkins case was erroneous and ought to be overruled. In the Arkansas case the state officers, appellants there, by painstaking and thorough brief presented arguments in favor of the same contention. But this court, after thoughtful attention to all that was suggested against that decision, adhered to it as sound. And in each case, being clearly of opinion that no discussion was required to show that, having regard to the principles applied in the Adkins case, the state legislation fixing wages for women was repugnant to the due process clause of the Fourteenth Amendment, we so held and upon the authority of that case affirmed per curiam the decree enjoining its enforcement. It is equally plain that the judgment in the case now before us must also be affirmed."Footnote28

Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo dissented, the Chief Justice and Mr. Justice Stone delivered separate dissenting opinions.

In his opinion, Chief Justice Hughes urged that the Adkins case is not controlling, and that the addition of the requirement that the minimum wage fixed shall be commensurate with the service rendered created a material distinction between the District Act and the New York Act. At the outset of his opinion Chief Justice Hughes said:

"I am unable to concur in the opinion in this case. In view of the difference between the statutes involved, I cannot agree that the case should be regarded as controlled by Adkins v. Children's Hospital, 261 U. S. 525. And I can find nothing in the Federal Constitution which denies to the State the power to protect women from being exploited by overreaching employers through the refusal of a fair wage as defined in the New York statute and ascertained in a reasonable manner by competent authority.

"First. - Relator in his petition for habeas corpus raises no question as to the fairness of the minimum wage he was required to pay. He does not challenge the regularity of the proceedings by which the amount of that wage was determined. We must assume that none of the safeguards of the statute was ignored and that its provisions for careful and deliberate procedure were followed in all respects.

"The statute states its objectives. It defines an 'oppressive and unreasonable wage' as one which 'is both less than the fair and reasonable value of the services rendered and less than sufficient to meet the minimum cost of living necessary for health.' It defines a 'fair wage' as one 'fairly and reasonably commensurate with the value of the service or class of service rendered."Footnote29

After outlining the procedure for determining minimum wages attention was turned to the view taken by the Court of Appeals, and the opinion was expressed that the conclusion of that Court was concerned more directly with the meaning of the Adkins case, rather than with the effect of the New York Act. Consequently, its ruling was thought not binding on the Supreme Court, because it dealt with a federal question rather than with the state statute. Referring to the requirement that the wage was to be commensurate with the value of the service rendered, the opinion adds:

"I find nothing in the opinion of the state court which can be taken to mean that this definite provision of the statute is not obligatory upon the authorities fixing a fair wage. Certainly, the court has not said so, and I think that we must assume that the standard thus described is set up by the New York Act. And there is no suggestion that the 'fair wage' as prescribed in the instant case was not commensurate with the reasonable value of the service rendered by the employees.

"When the opinion of the state court goes beyond the statement of the provisions of the act, and says that the setting up of such a standard does not create a material distinction when compared with the Act of Congress in the Adkins case, the state court is not construing the state statute. It is passing upon the effect of the difference between the two acts from the standpoint of the Federal Constitution. It is putting aside an admitted difference as not controlling. It is holding, as the state court says, that 'Forcing the payment of wages at a reasonable value does not make inapplicable the principle and ruling of the Adkins case.'

"That, it seems to me, is clearly a federal and not a state question, and I pass to its consideration."Footnote30

Dealing with the federal question, the Chief Justice stated that the Court has not heretofore passed on a minimum wage statute like the New York Act, and emphasized that the District Act had been condemned in the Adkins case particularly for its failure to take into account any relationship between the value of service and the wage fixed therefor. The New York Act required that such relationship would be taken into account. Commenting on the importance of this, the opinion continues:

"That the difference is a material one, I think is shown by the opinion in the Adkins case. That opinion contained a broad discussion of state power, but it singled out as an adequate ground for the finding the invalidity that the statute gave no regard to the situation of the employer and to the reasonable value of the service for which the wage was paid."Footnote31

Moreover, the opinion in the Adkins case had stated that "The moral requirement implicit in every contract of employment, viz., that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, was completely ignored. A statute requiring an employer to pay in money, to pay at prescribed and regular intervals, to pay the value of the services rendered, even to pay with fair relation to the extent of the benefit obtained from the service, would be understandable." (emphasis added).

Marking that the New York Act was free of the vice thus condemned in the District Act, the Chief Justice urged that the Adkins case is not a controlling authority:

"As the New York Act is free of that feature, so strongly denounced, the question comes before us in a new aspect. The Court was closely divided in the Adkins case, and the decision followed an equal division of the Court, after reargument, in Stettler v. O'Hara, 243 U. S. 629, with respect to the validity of the minimum wage law of Oregon. Such divisions are at times unavoidable, but they point to the desirability of fresh consideration when there are material differences in the cases presented. The fact that in the Adkins cases there were dissenting opinions maintaining the validity of the federal statute, despite the nature of the standard it set up, brings out in stronger relief the ground which was taken most emphatically by the majority in that case, and that there would have been a majority for the decision in the absence of that ground must be a matter of conjecture. With that ground absent, the Adkins case ceases to be a precise authority.

"We have here a question of constitutional law of grave importance, applying to the statutes of several States in a matter of profound public interest. I think that we should deal with that question upon its merits, without feeling that we are bound by a decision which on its facts is not strictly in point."Footnote32

Review was then had of the considerations and conditions which evoked the New York legislation. These included facts as to the large number of women employed at wages inadequate for their support, their unorganized condition, and the necessity of providing them with relief. These and other facts mentioned were thought sufficient to justify the legislative limitation on the freedom of contract. The Chief Justice explains the real reason for his conclusion that women are brought under the statute when he states:

"Inquiries by the New York State Department of Labor in cooperation with the Emergency Relief Bureau of New York City disclosed that large number of women employed in industry whose wages where insufficient for the support of themselves and those dependent upon them. For that reason they had been accepted for relief and their wages were being supplemented by payments from the Emergency Relief Bureau. Thus the failure of over-reaching employers to pay to women the wages commensurated with the value of services rendered has imposed a direct and heavy burden upon the taxpayers. The weight of this burden and the necessity for taking reasonable measures to reduce it, in the light of the enormous annual budgetary appropriation for the Department of Public Welfare of New York City, is strikingly exhibited in the brief filed by the Corporation Counsel of the City as an amicus curiae.Footnote33

Dealing with this evidence presented in the case, the Chief Justice said:

"We are not at liberty to disregard these facts. We must assume that they exist and examine respondent's argument from that standpoint. That argument is addressed to the fundamental postulate of liberty of contract. I think that the argument fails to take account of established principles and ignores the historic relation of the State to the protection of women.

"We have had frequent occasion to consider the limitations of liberty of contract. While it is highly important to preserve that liberty from arbitrary and capricious interference, it is also necessary to prevent its abuse, as otherwise it could be used to override all public interests and thus in the end destroy the very freedom of opportunity which it is designed to safeguard.

"If liberty of contract were viewed from the standpoint of absolute right, there would be as much to be said against a regulation of the hours of labor of women as against the fixing of a minimum wage. Restriction upon hours is a restriction upon the making of contracts and upon earning power. But the right being a qualified one, we must apply in each case the test of reasonableness in the circumstances disclosed. Here, the special conditions calling for the protection of women, and for the protection of society itself, are abundantly shown. The legislation is not less in the interest of the community as a whole than in the interest of the women employees who are paid less than the value of their services. That lack must be made good out of the public purse. Granted that the burden of support of women who do not receive a living wage cannot be transferred to employers who pay the equivalent of the service they obtain, there is no reason why the burden caused by the failure to pay that equivalent should not be placed upon those who create it. The fact that the State cannot secure the benefit to society of a living wage for women employees by any enactment which bears unreasonably upon employers does not preclude the State from seeking its objective by means entirely fair both to employers and the women employed.

"In the statute before us, no unreasonableness appears. The end is legitimate and the means appropriate. I think that the act should be upheld."Footnote34

Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo concurred with the Chief Justice.

Mr. Justice Stone delivered a separate opinion in which, while expressing agreement with the opinion of the Chief Justice, he added that the differences in the two statutes should not be made the sole basis for the decision. In this opinion Mr. Justice Stone urged that the Fourteenth Amendment does not protect freedom of contract from restraint of all law, and that there was no basis for excepting employment contracts from regulatory power.

The decision of the Supreme Court in the New York Minimum Wage Act case created intense anger in Roosevelt. One day after the Court's decision, he held a press conference to discuss the decision. During this conference Roosevelt described the decision by the Supreme Court holding unconstitutional New York State's minimum Wage Law, as creating a "No Man's Land" where neither States nor the Federal Government had the right to legislate in the contractual affairs of the parties.Footnote35

He made this observation in reply to a question at the press conference as to whether he had any statement to make on how the New Deal's objectives could be brought within the framework of the Supreme Court's decisions nullifying the National Recovery Act, the Agricultural Adjustment Act, the Guffey Coal Act and, finally, the New York Minimum Wage case holding that not even the States could impose schedules of minimum wages.

Roosevelt said the question should be redrafted to ask whether he cared to comment on the Supreme Court's decision. He then said that the answer was no. He thereafter declined on four distinct occasions in the press conference to discuss possible methods of meeting the situation.

This was his first comment of any kind on decisions by the Supreme Court since his press conference on the Schechter decision, in which the Court invalidated the National Industrial Recovery Act. Remember that during this conference Roosevelt blamed the Supreme Court for putting the United States back in the horse-and-buggy days with their interpretation of the commerce clause.

When asked about the dissenting decision in the case Roosevelt remarked that it will be of great interest to practically everybody in the United States if they will read the three opinions in the Morehead case - those of Justice Butler, Chief Justice Hughes and Justice Stone - because the combination of the three seems to indicate that at the present time a majority of the Court have made clear a fact that aroused special interest in Roosevelt because the law under consideration was discussed in his administration as Governor of New York and enacted soon afterward. It seems to be fairly clear after this decision, using the minimum wage law as an example, that the No Man's Land, where no government can function is being more clearly defined. The State cannot interfere with contractual rights and the Federal Government cannot either.

"Do you see a danger in the No Man's Land? Roosevelt was asked.

He replied that there was nothing to be said.

While Roosevelt was making his own mild comment on the decision in the Morehead case, Representative Fish, Republican of New York, was using far stronger language in the House.

"The most recent decision is worth 1,000,000 votes to the Democrats," he declared.

On the Senate side, Senator Schwellenbach introduced a bill designed to eliminate child labor while adhering to decisions by the Supreme Court outlawing attempts to regulate interstate commerce shipments of goods manufactured by children.

He proposed that States have the right to halt at their boundaries goods manufactured by child labor in other States.

In his speech in the House, Mr. Fish, who said that he had always defended the Supreme Court, offered a constitutional amendment providing that each State have the power to fix minimum wages for workers.

"I am not criticizing the Supreme Court, but I was fairly shocked at the decision," he said.

He said that Republicans freed 3,000,000 Negro slaves and he called upon both parties now to "emancipate 3,000,000 women and children workers."

It should not be a party issue, he told the House, but a problem for every civilized person to work out in harmony, "to defend the women and children from chisels and human rats who fatten on the blood of the unprotected workers."

He said he knew his resolution would not be adopted, but he begged "any Democrat to introduce it and fight for it," because if that were done it would mean 1,000,000 votes for the Democratic party this fall.

While members on both sides of the aisle applauded, Mr. Fish said that he was going to the Republican National Convention with the purpose of urging that the constitutional amendment be written into the Republican platform.

Anger and frustration over the Court's decision did not stop with Roosevelt or members of Congress. Secretary Perkins stated that more than 3,000,000 women, or half of those engaged in industry in this country, were directly or indirectly affected by the Supreme Court's decision. "Public welfare demands that women workers shall be prohibited from accepting wages so low that their health is impaired or is maintained only by contributions from the taxpayers," Secretary Perkins stated.

George Meany, president of the State Federation of Labor, in an address over the radio declared that the nullification of the Supreme Court of the New York Minimum Wage Act "has brought joy to the heart of those who believe in a labor market unhampered by standards of decency." He then stated, "only those will be satisfied with the decision of the court "who construe our boasted American freedom to mean freedom to exploit, freedom to chisel and freedom to starve workers into submission. This law has been very carefully drawn in order to avoid an adverse ruling because of the previous decisions of the Supreme Court on the District of Columbia Act back in 1923. Despite all the work done by hard-working, conscientious legislators of our State who worked for months on this law, despite the careful administration of this law by the industrial commissioner, despite the fact that investigation after investigation showed that women and minors were being exploited day in and day out in certain industries, despite the fact that seven other States have similar legislation, despite the expressed wish of millions of citizens through their Representatives that they believed in giving this type of protection to women and minors, we now find that by a majority of one vote the Supreme Court has denied women and minors that which is absolutely essential in our modern industrial life, namely a basic wage below which no employer can pay."

During this radio address, Mr. Meany suggested the possibility of a constitutional amendment to curb the power of the Supreme Court in passing upon social and labor legislation.

Remember that Roosevelt's criticism of the Supreme Court did not stop after his press conference. In 1937 he introduced the "court bill"Footnote36 which called for a complete reorganization of the courts. Several amendments to the Constitution were also offered but rejected which if adopted would have given the federal government complete control over wages, labor, etc. both in interstate and intrastate commerce.

The proposed Costigan amendment to the Constitution, drawn up January 1935 in anticipation of possible adverse decisions in the Supreme Court, would legalize the New Deal agencies and activities. The proposed amendment read:

Section 1. The Congress shall have power to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade and commerce to prevent unfair methods and practices therein.

Section 2. The due-process-of-law clauses of the Fifth and Fourteenth Amendments shall not be construed to impose no limitations upon legislation by the Congress or by the several States with respect to any of the subjects referred to in Section 1, except as to the methods or procedure for the enforcement of such legislation.

Section 3. Nothing in this article shall be construed to impair the regulatory power of the several States with respect to any of the subjects referred to in Section 1, except to the extent that the exercise of such powers by a State is in conflict with legislation enacted by the congress pursuant to this article.

Through the Fall of 1936, Roosevelt and his strategists worked on various plans and counter-plans which would validate Roosevelt's New Deal legislation without need of a constitutional amendment. One plan was a proposal to resurrect the now invalidated National Industrial Recovery Act, adopt it with new powers in interstate commerce and incorporate national labor and wages into the new act. To overcome any constitutional issues which might be presented, the act would provide for a federal licensing of all "persons" who wished to engage in interstate commerce. One major newspaper upon receiving details of this plan from an unnamed White House source printed the following:

President Roosevelt has ordered certain agencies of the administration to make independent studies of the possibility of achieving the principal goals of the outlawed National Industrial Recovery Act - abolition of child labor, protection of the rights of workers to organize and bargain collectively, and maintenance of standard labor conditions - through a sweeping Federal Incorporation and Licensing Law.

These studies have been set in motion with a view to enable the President to decide within the next few weeks his future course with reference to revival of reforms he undertook on a spectacular scale through the NRA in 1933 and 1934.

He has asked for advice on the economic advisability of such a plan, as well as upon its administrative practicability, its efficacy in achieving the ends he desires, and its constitutionality.

The president has not indicated to any of his advisers as yet what he proposes to do specifically toward reviving the main tenets of the old NRA. Whether he intends to proceed definitely along the idea of a Federal Incorporation Law or other laws to be enacted in accordance with the existing constitutional framework, or merely to explore the possibilities of such laws, or then ask later for amendments to the organic law, are questions which Mr. Roosevelt evidently has left posed before his own administrative associates.

In fact, he appears to be pursuing an extremely cautious attitude both in formulating and discussing his plans for the future.

Meanwhile, any number of experts, both within and without the government, are secretly working and advancing schemes of their own, just as they did in the first days of the administration.

At least two and possibly more reports on the Federal incorporation and licensing plan are expected to be ready for the President soon after he returns from his prospective southern cruise and in ample time for him to make some decision on the subject for early transmission to the new Congress.

He is expected by his friends to thresh out the whole question with representatives of business, however, before he submits to Congress any new regulatory measure affecting their interests.

It is also the view of some of those closely associated with the President that he may seek counsel from leaders other than those identified with business organizations.

While none of the new studies on a possible incorporation law has proceeded very far, the understanding here is that each study is being made on the basis of the O'Mahoney bill, which was introduced in the Senate in July, 1935, but since has reposed in a subcommittee of the Committee on Interstate Commerce.

The main provisions of the bill specify a system of compulsory licenses for companies doing business in interstate commerce, permit incorporation of business under Federal as well as State charters, and provide administration of this entire setup by an enlarged Federal Trade Commission.

The bill provides, for instance, that "it shall be unlawful for any corporation of any State, Territory, or possession of the United States, or of any foreign country, or for any corporation heretofore organized under the District of Columbia, or for any business, to engage directly or indirectly in commerce without first having obtained a license therefor from the commission. (Federal Trade Commission).

It specifies that every license shall contain stipulations against discrimination against women workers in rates of pay or working privileges; a definite provision against child labor, and a guarantee of collective bargaining and protection of workers in their rights to organize and bargain through representatives of their own choosing.

These license requirements might be used as the vehicle for any other regulations that Congress might from time to time deem proper to impose upon business, such as maximum hours of labor and minimum rates of pay.

The bill's approach to the problem is along the theory that Congress has the undisputed power to regulate interstate commerce, and its provisions relate only to those companies doing business among the States.

In a separate title the bill provides for Federal incorporation of business enterprises. In still another it picks up the structure of the present State corporate system, with restrictions aimed obviously at abolition or curtailment of interstate holding companies.

The idea of Federal incorporation and licensing act is not an entirely new scheme for promulgation of the principles of the NRA. There was considerable agitation for it soon after the original Recovery Act was invalidated. The new development is that the President apparently has decided to look seriously into its possibilities for accomplishing the reforms he still thinks necessary in the business field in the interest of increased employment and eradication of unfair labor practices and cutthroat competition.

To say the least, the opinions in Morehead v. Tipaldo amounted to a challenge to present a case where the question of the validity of the Adkins decision was squarely involved. The Washington Minimum Wage Act case was such. It arrived at the very next term of the Supreme Court. This case was decided during the great battle between Roosevelt with his court bill and the Supreme Court. Whether the ruling in the case was on its merits and constitutional validity or was decided to quiet Roosevelt and the public outcry against the Court, thereby defeating the court bill, only those sitting on the Supreme Court when the case was decided can answer this question. In reviewing the dissenting opinion of Justice Sutherland, one might conclude that the majority opinion was "politically" motivated.Footnote37

On March 29, 1937, the Supreme Court, by a divided bench, sustained the statute of the State of Washington authorizing the fixing of wages for women and minors.Footnote38 The Act as originally passed in 1913 recited that the welfare of the State demands the protection of women and minors from conditions of labor having a pernicious effect on their health and morals. It provided that it shall be unlawful to employ women or minors in any industry or occupation in the State under conditions of labor detrimental to their health and morals; and that it shall be unlawful to employ women in any industry at wages which are not adequate for their maintenance. The Act created an Industrial Welfare Commission to establish such standards of wages and conditions of labor for women and minors as shall be held under the Act to be reasonable and not detrimental to health and morals, and shall be sufficient for the decent maintenance of women.

Other provisions prescribed procedure for the fixing of wages and empowered the Commission, after hearing and finding that in any occupation the wages paid to women "are inadequate to supply them necessary cost of living and to maintain the workers in health," to call a conference of representatives of employers, employees and disinterested persons representing the public. It was provided that the conference was to recommend to the Commission, on its request, an estimate of the minimum wage adequate for the purpose above stated and on the approval of such recommendation it became the duty of the Commission to issue an obligatory order fixing minimum wages.

By a later Act the Commission was abolished and its duties were assigned to the Industrial Welfare Committee.

As to the case involved, the appellant operated a hotel and employed the appellee, Elise Parrish, as a chambermaid. She and her husband brought suit to recover the difference between the wages paid her and the minimum wage fixed by the Washington Minimum Wage Act. The minimum wage was fixed by the Act. The minimum wage was $14.50 for a week of 48 hours. The appellant challenged the statute as violative of the due process clause of the Fourteenth Amendment, but the State Supreme Court sustained the Act. On appeal the decision was affirmed by the Supreme Court by an opinion by Chief Justice Hughes, with four Justices dissenting.

The Hotel Company relied on the case of Adkins v. Children's Hospital, 261 U.S. 525, which struck down the Minimum Wage Act of the District of Columbia as repugnant to the due process clause of the Fifth Amendment. The appellees sought to distinguish the Adkins case on the ground that the appellee was employed in a hotel and that the business of an innkeeper was affected with a public interest. But the opinion dismissed this attempted distinction by calling attention to the fact that in one of the cases ruled by the Adkins opinion the employee was a woman employed to operate an elevator in a hotel. Next referred to was the recent case of Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, in which the Supreme Court by divided bench declared unconstitutional the New York Minimum Wage Act for Women, the majority of the Court being unable to distinguish the New York Minimum Wage Act from that passed on in the Adkins case. Attention was called particularly to the fact that in the Morehead case the petition for certiorari sought merely to distinguish the Adkins case rather than a fresh consideration of the principles on which it rested; and that consequently the majority of the Court had not considered whether the Adkins case should have been overruled.

In this case, however, the decision in the Adkins case was re-examined. As to the reasons for this the Chief Justice states:

"We think that the question which was not deemed to be open in the Morehead case is open and is necessarily presented here. The Supreme Court of Washington has upheld the minimum wage statute of that State. It has decided that the statute is a reasonable exercise of the police power of the State. In reaching that conclusion the state court has invoked principles long established by this Court in the application of the Fourteenth 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 justifying its position. We are of the opinion that this ruling of the state court demands on our part a reexamination of the Adkins case. The importance of the question, in which many States having similar laws are concerned, 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 present case the subject should receive fresh consideration."Footnote39

Then followed a brief review of the history of litigation on this question. It was pointed out that the Washington Act was enacted over 23 years ago; that it had twice been held valid by the State Supreme Court; that it was essentially the same as an act passed in Oregon the same year; and that the Oregon act, after reargument, was affirmed by the Supreme Court by an equally divided bench in 1917. The District of Columbia act was passed in 1918, was sustained by the Supreme Court of the District in the Adkins case, was affirmed by the Court of the District in the Adkins case, was affirmed by the Court of Appeals of the District, then reversed on rehearing and finally held invalid by the Supreme Court with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford dissenting, and Mr. Justice Brandies taking no part. Later, similar acts of Arizona and Arkansas were held invalid under the Adkins case.

Consideration was then given to the principles which should control the decision of the case. Noting that the due process clauses of the Fifth and Fourteenth Amendments were invoked against legislation of this type, on the ground that such legislation deprived women of freedom of contract, Chief Justice Hughes said:

"What is that 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 prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. 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 restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process."Footnote40

and quoting from Chicago, B. & Q. R.R. Co. v. McGuire, 219 U.S. 549, 567, the Chief Justice continued:

"There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community."Footnote41

Numerous illustrations of restrictions on freedom of contract were then cited. Among these, special emphasis was placed on the opinion in Holden v. Hardy, 169 U.S. 366, wherein the Supreme Court pointed out the inequality existing between employer and employees which may occasion legislation for the protection of the health and welfare of the latter.

The principle thus referred to was thought peculiarly applicable to the employment of women. In elaboration of this the opinion states:

"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 phrase of the subject received elaborate consideration in Muller v. Oregon , 208 U.S. 412 (1908), where the constitutional authority of the State to limit the working hours of women was sustained. We emphasized the consideration that 'woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for substance 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 disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.' Hence she was 'properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained.' We concluded that the limitations which the statute there in question 'placed upon her contractual powers, upon her right 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.'"Footnote42

In addition, decisions upholding the regulation of the hours of employment of women were also cited. These precedents had been relied on by the dissenting justices in the Adkins case, and the validity of the distinction there made between a minimum wage and a maximum of hours in limiting liberty of contract was challenged in the dissent.

"That challenge persists and is without any satisfactory answer. As Chief Justice Taft observed: 'In absolute freedom of contract the one term is as important 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 distinctions 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 regulate.'"Footnote43

The Chief Justice recalled also that the majority opinion in the Adkins case condemned the District of Columbia law for failure to take into account the value of the services rendered, and that in the Morehead case the minority thought that the New York statute amply met this objection. It was noted, however, that the Washington statute was similar to the District of Columbia Act in this respect. But this was thought insufficient to condemn the statute, in view of the fact that the minimum wage was fixed after conference by representatives of employers, employees and public, so that it may be assumed that the minimum wage is fixed in relation to the service performed. The view was then expressed that the decision in the Adkins case was a departure from the true principles governing the regulation by the State of the relation of the employer and employee. After reference to later authorities, particularly Nebbia v. New York, 291 U.S. 502, sustaining a New York law providing for minimum prices for milk, the Chief Justice added:

"With full recognition of the earnestness 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 the health of women and their protection from unscrupulous and overreaching employers? And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement 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 clearly 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 necessitous circumstances. The legislature was entitled to adopt measures to reduce the evils of the 'sweating system,' the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living thus making their very helplessness the occasion of a most injurious competition. The legislature had the right to consider that its minimum wage requirements 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 presence of the evil and as to the means adapted to check it. Legislative response to that conviction cannot be regarded as arbitrary or capricious, and that is all we have to decide. Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment."Footnote44

In conclusion the majority opinion observed that recent economic experience had demonstrated the necessity for protecting a class of workers who were in an unequal position with respect to bargaining power. In this connection it was pointed out that what the workers lose in wages the taxpayers are called upon to pay in relief. In elaboration of this the opinion stated:

"There is an additional and compelling consideration which recent economic experience has brought into a strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining 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 notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite 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 elsewhere. 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 constitutes an arbitrary discrimination, because it does not extend to men, is unavailing. 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." (Emphasis added).Footnote45

In affirming the judgment of the State Court, the Adkins case was expressly overruled.

Mr. Justice Sutherland delivered a dissenting opinion in which Mr. Justice Van Devanter, Mr. Justice McReynolds and Mr. Justice Butler concurred.

Mr. Justice Sutherland's opinion opens with a discussion of the duty of the judiciary in cases involving constitutional questions, in which it was emphasized that each justice is bound by oath to exercise his own deliberate judgment:

"The suggestion that the only check upon the exercise of the judicial power, when properly invoked, to declare a constitutional right superior to an unconstitutional statute is the judge's own faculty of self-restraint, is both ill considered and mischievous. Self-restraint belongs in the domain of will and not of judgment. The check upon the judge is that imposed by his oath of office, by the Constitution and by his own conscientious and informed convictions; and since he has the duty to make up his own mind and adjudge accordingly, it is hard to see how there could be any other restraint. This Court acts as a unit. It cannot act in any other way; and the majority (whether a bare majority or a majority of all but one of its members), therefore, establishes the controlling rule as the decisions of the court, binding, so long as it remains unchanged, equally upon those who disagree and upon those who subscribe to it."Footnote46

As to the view that supervening economic conditions require a reconsideration of the question involved Mr. Justice Sutherland said, in part:

"It is urged that the question involved should now receive fresh consideration, among other reasons, because of 'the economic conditions which have supervened,' but the meaning of the Constitution does not change with the ebb and flow of economic events. We frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of living words that apply to every new condition which they include, the statement is quite true. But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written-that is, that they do not apply to a situation now to which they would have applied then-is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise."Footnote47

Mr. Justice Sutherland continues:

"Constitutions can not be changed by events alone. They remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them. It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill adapted to a new state of things.

"If the Constitution, intelligently and reasonably construed in the light of these principles, stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation - and the only true remedy - is to amend the Constitution."Footnote48

In elaboration of this view various authorities were cited including Cooley on "Constitutional Limitations" wherein the author states that:

"'What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it."Footnote49

It was observed further that the Adkins case dealt with an act of Congress which had been passed upon and approved by both the executive and legislative branches of the government, but notwithstanding had been overturned by the Court. This observation led to a discussion of the interrelationship of the Three branches of government created by the Constitution, in which Mr. Justice Sutherland said:

"The people by the Constitution created three separate, distinct, independent and coequal departments of government. The governmental structure rests, and was intended to rest, not upon any one or upon any two, but upon all three of these fundamental pillars. It seems unnecessary to repeat, what so often has been said, that the powers of these departments are different and are to be exercised independently. The differences clearly and definitely appear in the Constitution. Each of the departments is an agent of its creator; and one department is not and cannot be the agent of another. Each is answerable to its creator for what it does, and not to another agent. The view, therefore, of the Executive and of Congress that an act is constitutional is persuasive in a high degree; but it is not controlling."Footnote50

Attention was then given specifically to the validity of the Washington statute and it was noted that it was identical in all substantial respects with that involved in the Adkins case. It was pointed out, moreover, that it is well established that the due process clause protects freedom of contract and that contracts of employment are within the rule. It was recognized in the Adkins case also that freedom of contract is not absolute but subject to a great variety of restraints. The restraints, however, are the exception and not the rule. The classes of cases in which restraints of freedom of contract have been recognized as set forth in the Adkins case included statutes fixing the hours of labor, but emphasis was placed on the distinction between such statutes and those fixing minimum wages. As to validity of this distinction, the opinion in the Adkins case was cited and Mr. Justice Sutherland then added:

"What is there said need not be repeated. It is enough for present purposes to say that the statues of the former class deal with an incident of the employment, having no necessary effect upon wages. The parties are left free to contract about wages, and thereby equalize such additional burdens as may be imposed upon the employer as a result of the restrictions as to hours by an adjustment in respect of the amount of wages. This court, wherever the question is adverted to, has been careful to disclaim any purpose to uphold such legislation as fixing wages, and has recognized an essential difference between the two."Footnote51

The failure of the law to take into consideration the value of the services rendered in fixing the wage was again urged as it was in the Adkins case. In this connection, the following, among other portions of the Adkins opinion, was quoted:

"'The law takes account of the necessities of only one party to the contract. It ignores the necessities of the employer by compelling him to pay not less than a certain sum, not only whether the employee is capable of earning it, but irrespective of the ability of his business to sustain the burden, generously leaving him, of course, the privilege of abandoning his business as an alternative for going on at a loss. Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting compensation to the differing merits of his employees. It compels him to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the employee. It therefore undertakes to solve but one-half of the problem.

"The ethical right of every worker, man or woman, to a living wage may be conceded. One of the declared and important purposes of trade organizations is to secure it. And with that principle and with every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that every employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz, that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee are alone considered and these arise outside of the employment, are the same when there is no employment, and as great in one occupation as in another. Certainly the employer by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused nor contributed to her poverty. On the contrary, to the extent of what he pays he has relieved it. In principle, there can be no difference between the case of selling labor and the case of selling goods."Footnote52

The statute was thought to be repugnant to the Constitution also as an arbitrary discrimination because it leaves men free to bargain for wages lower than the minimum fixed for women. As to this feature the dissenting opinion states in part:

"The Washington statute, like the one for the District of Columbia, fixes minimum wages for adult women. Adult men and their employers are left free to bargain as they please; and it is a significant and important fact that all state statutes to which our attention has been called are of like character. The common-law rules restricting the power of women to make contracts have, under our system, long since practically disappeared. Women today stand upon a legal and political equality with men. There is no longer any reason why they should be put in different classes in respect of their legal right to make contracts; nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept.

"An appeal to the principles that the legislature is free to recognize degrees of harm and confine its restrictions accordingly, is but to beg the question, which is-since the contractual rights of men and women are same, does the legislation here involved, by restricting only the rights of women to make contracts as to wages, create an arbitrary discrimination? We think it does. Difference of sex affords no reasonable ground for making a restriction applicable to the wage contracts of all working women from which like contracts of all working men are left free. Certainly a suggestion that the bargaining ability of the average woman is not equal to that of the average man would lack substance. The ability to make a fair bargain, as everyone knows, does not depend upon sex."Footnote53

In conclusion, the question as to the power to fix a maximum wage was suggested:

"Finally, it may be said that a statute absolutely fixing wages in the various industries at definite sums and forbidding employers and employees from contracting for any other than those designated, would probably not be thought to be constitutional. It is hard to see why the power to fix minimum wages does not connote a like power in respect of maximum wages. And yet, if both powers be exercised in such a way that the minimum and the maximum so nearly approach each other as to become substantially the same, the right to make any contract in respect of wages will have been completely abrogated."Footnote54

In dealing with the minimum wage and maximum hours by interstate compacts the states have constitutional limitations, both state and federal, to consider. However, if the purpose of the compact, actual, as well as expressed, should be to banish conditions oppressive to labor such as hours of work so long to promote inefficiency and stifle intelligence, or a wage so low as to induce standards of living noxious to morals and bodily vigor, it would probably be sustained as not in conflict with constitutional guarantees of "liberty of person and freedom of contract." The police powers of the states exercised jointly to effect a joint purpose for the public good would not be set aside by the courts unless it was apparent from the compact that the primary purpose was to restrict freedom of contract rather than to promote the public welfare.

Two cases were involved in the Adkins decision. In one of them it appeared that a woman 21 years of age, who brought the suit, was employed as an elevator operator at a fixed salary. Her services were satisfactory, and she was anxious to retain her position, and her employer, while willing to retain her, was obliged to dispense with her services on account of the penalties prescribed by the act. The wages received by her were the best she was able to obtain for any work she was capable to performing; and the enforcement of the order deprived her, as she alleged, not only of that employment, but left her unable to secure any position at which she could make a living with as good physical and moral surroundings and as good wages as she was receiving and was willing to take. The Supreme Court found the Act violated the woman's freedom of contract which is part of the liberty of the individual protected by the due process clause of the Fifth Amendment.

The Morehead case was brought to the Supreme Court by way of habeas corpus originating in the Supreme Court of New York. An owner of a laundry, was jailed for failing to obey a mandatory order of the state industrial commissioner prescribing minimum wages for women employees. It was contended by the owner that the statute, under which the commissioner made the order, was violative of the due process clause of the Fourteenth Amendment to the Constitution of the United States. This contention was grounded upon the claim that the statute in question was substantially identical with that enacted by Congress for the District of Columbia, which in 1923 was declared unconstitutional as repugnant to the due process clause of the Fifth Amendment in the Adkins case. The Supreme Court, adhering to the principles laid down in the Adkins case, upheld the owner's contention, and declared the New York statute unconstitutional.

In the Parrish case the appellant operated a hotel and employed the appellee, Elise Parrish, as a chambermaid. She and her husband brought suit to recover the difference between the wages paid her and the minimum wage fixed by the Washington Minimum Wage Act. The appellant challenged the statute as violative of the due process clause of the Fourteenth Amendment, but the State Supreme Court sustained the Act. On appeal the decision was affirmed by the Supreme Court of the United States.

All three cases involved the same subject matter; that being women and employment contracts. In the Adkins and the Morehead cases which the Supreme Court declared the District of Columbia and the New York Minimum Wage acts unconstitutional, all parties to the employment contract were satisfied with their contractual agreement. Both the employer and employee wanted to continue their contractual arrangement. Neither party filed suit alleging a contractual breach against the other party. When the state tried to enter into their contractual affair it entered as an interloper.Footnote55 The Solicitor General of New York in a brief filed for petitioner in the Morehead case, argued that failure by employers to pay women the minimum wages prescribed in the New York Minimum Wage Act, resulted in a large number of women applying for and being accepted for relief and their wages were being supplemented by payments from the Emergency Relief Bureau of the State of New York. The Solicitor General concludes in his brief, that, "the failure of employers to pay women the wages directed under the Act and the resulting burden by the state for support of these women, imposes a heavy burden upon the taxpayers of the state."

The majority of the Court rejected the States argument reasoning that since the women employee's involved in this case where not receiving any benefits from the Emergency Relief Bureau of the State of New York and since these women refused to accept any benefits offered by the state, the burden upon the taxpayers of the state to support these women did not exist. Therefore, the state infringed and interfered with the right or freedom to contract.

However, in the Parrish case, the State of Washington was successfully joined as a third party, because one of the parties to the employer-employee contract, the employee Elise Parrish, sought and received relief benefits from the State of Washington. The State therefore, was not an interloper, but a third party who could show a damage to the taxpayers of the state, by the failure of the hotel to pay to their "ward" (Elise Parrish) a wage sufficient enough to support her and her family. It is also interesting to note that in the original cause of action filed in the Superior Court of Chelan County, Washington, the plaintiff Parrish, denied the existence of any employment contract. At the trial, Elise Parrish upon cross-examination by Mr. Crollard, attorney for the hotel company stated:

"There was nothing said about wages when I was hired. I was not keeping time at the beginning. After I began to keep my time I tried to figure out what I was getting. I cashed the checks which were given me by the hotel company in payment for my services between the dates of the checks. I did not object to any of the checks on the ground that it was not the right amount, but accepted and cashed them.

"I kept track of the checks I received and put it down in my time book. I had in mind that I should have been paid the state wage and that it would be paid. I never made any demand upon the hotel company or any of its agents for the state wage until my discharge. There was nothing ever said about wages. I took what they gave me because I needed the work so badly, and I figured the defendant would pay what was right, the state wage. I had the state wage in mind all of the while at least a short time after I began working for the hotel."

Thus we see the underlining difference between these minimum wage cases. One case relies on liberty of contract, the other claimed no contract existed and called upon the state to intervene on her behalf, after all she was their "ward."Footnote56

Who then is the person with this liberty of contract, a liberty which is protected under the Fifth and Fourteenth Amendments? An Austrian cook in an Oklahoma restaurant, learned that it meant him; and that this liberty included the right to hold his kitchen job although the state had made it a crime for an employer to employ more than one non-voting alien out of five in any business, and his employer in fear of the law was about to discharge him. This was a so called public health, welfare and policy law.Footnote57

Looking at the minimum wage cases, female employee's at a New York laundry found that they also had this liberty of contract and that the opportunity to earn wages that were available and acceptable to them, was a liberty that could not be taken away from them under a health and moral's law by the New York legislature. But this liberty of contract did not exist when an employee for a hotel in Washington State became a "ward" of the state by applying for and receiving state welfare benefits.

One question remains, do the citizens of the states today, have this liberty of contract, or are they considered "wards" of the state and the Federal government.

During the first session of the Seventy-fifth Congress, many hearings were held and considerable testimony taken to determine the effect which the continuance of substandard labor conditions exerted on interstate commerce.

The conclusions of both the House and Senate contained in the Conference Committee AgreementFootnote58 were "that the existence in industries engaged in commerce, or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency and general well-being, required immediate action to correct, and as rapidly as possible to eliminate conditions in such industries without substantially curtailing employment or earning power."

In pursuance of the main objections determined by Congress and after many months of debates, Congress enacted the Fair Labor Standards Act of 1938,Footnote59 to provide for the establishment of fair labor standards in employment in interstate commerce, the production of goods for interstate commerce and for other purposes.

Fundamentally, the FLSA is legislation for the control of minimum wages and maximum hours, for employees engaged in interstate commerce. No other person is contemplated in the Act. The power of Congress to legislate against labor conditions detrimental to a minimum standard of living required for the general well-being of workers engaged in commerce or in production of goods for commerce was finally settled in 1942.Footnote60

Instead of relying, like the National Industrial Recovery Act, on the Constitution's general welfare clause-under which the administration in 1933 tried to regiment virtually all business-the Federal Labor Standards Act depends for validity upon the Federal government's right to regulate interstate commerce. Those individuals engaged in interstate activity would fall under the statute, those individuals who are not engaged in interstate commerce would be immune from the statute and the regulations promulgated under it.

Footnote1

Laws of 1913, Washington, c. 174.

Footnote2

Act of Sept. 19, 1918, c. 174.

Footnote3

Note 2, supra.

Footnote4

Acts of August 1, 1892, June 19, 1912, March 3, 1913, March 14, 1917, 27 Stat. c. 340; 37 Stat. c. 347; 37 Stat. 726; 39 Stat. c. 1192.

Footnote5

Stettler v. O'Hara, 139 Pac. 743 (1914); Simpson v. O'Hara, 141 Pac. 158 (1914).

Footnote6

Stettler v. O'Hara, 243 U.S. 629 (1917).

Footnote7

Note 2, supra.

Footnote8

243 U.S. 426 (1917).

Footnote9

261 U.S. at 566.

Footnote10

Id. at 564.

Footnote11

Id. at 569.

Footnote12

Murphy v. Sardell, 269 U.S. 530 (1925).

Footnote13

Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1923).

Footnote14

Murphy v. Fardell, 269 U.S. 530 (1925); Donham v. West-Nelson Mfg. Co., 273 U.S. 657 (1926).

Footnote15

Topeka Laundry Co. v. Court of Industrial Relations, 262 U.S. 522 (1923).

Footnote16

Adkins v. Children's Hospital, 261 U.S. 525, 559 (1923).

Footnote17

Id. at 559.

Footnote18

Laws of 1933, c. 584.

Footnote19

261 U.S. 525. (1923).

Footnote20

298 U.S. at 604-5.

Footnote21

Id. at 606-7.

Footnote22

Id. at 607-8.

Footnote23

Id. at 609.

Footnote24

Id. at 610.

Footnote25

Id. at 611.

Footnote26

Id. at 613-4.

Footnote27

Id. at 615-7.

Footnote28

Id. at 618.

Footnote29

Id. at 618-9.

Footnote30

Id. at 622.

Footnote31

Id. at 623.

Footnote32

Id. at 624-5.

Footnote33

Id. at 627.

Footnote34

Id. at 627-31.

Footnote35

On May 27, 1935 the Supreme Court in the Schechter case found the National Industrial Recovery Act unconstitutional as an unlawful invasion by Congress to legislate wages and hours of a trade or business engaged in intrastate commerce. Now with the Supreme Court's decision in the New York Minimum Wage Act case, the states could not interfere with the freedom of women to contract for their own wages, that they enjoy the same rights as men under this freedom of contract.. To Roosevelt, if the right of the Federal Government or state governments to regulate the contractual affairs of the citizens of the states relating to wages and labor relations were restricted, how could the Federal government protect the people from unscrupulous "capitalists" and give the people all the benefits they were demanding from the government.

Footnote36

See Chapter 10.

Footnote37

Justice Van Devanter announced his retirement from the Court May 18, 1937; Justice Sutherland retired from the Court on January 17, 1938.

Footnote38

Laws of 1913, c. 174.

Footnote39

Id. at 389-90.

Footnote40

Id. at 391.

Footnote41

Id. at 392.

Footnote42

Id. at 394-5.

Footnote43

Id. at 395-6.

Footnote44

Id. at 398-9.

Footnote45

Id. at 399-400.

Footnote46

Id. at 402.

Footnote47

Id. at 402-3.

Footnote48

Id. at 403-4.

Footnote49

Id. at 404.

Footnote50

Id. at 405.

Footnote51

Id. at 407.

Footnote52

Id. at 409-10.

Footnote53

Id. at 411-3.

Footnote54

Id. at 413-4.

Footnote55

Persons who interfere or intermeddle into business to which they have no right.

Footnote56

Liberty of Contract is examined in Volume II of this work.

Footnote57

Truax v. Raich, 239 U.S. 33, 41 (1915).

Footnote58

Conference Committee Report No. 2738, 75th Cong., p. 28.

Footnote59

Act of June 25, 1938, c. 676, 52 Stat. 1060.

Footnote60

United States v. Darby Lumber Co., 312 U.S. 100; Overnight Motor Transport. Co. v. Missell, 316 U.S. 572.