ADKINS
ET AL., CONSTITUTING THE MINIMUM WAGE BOARD OF THE DISTRICT OF COLUMBIA, v.
CHILDREN'S HOSPITAL OF THE DISTRICT OF COLUMBIA.; SAME v. LYONS.
261
MR. JUSTICE SUTHERLAND delivered the opinion of the
Court.
The question presented for
determination by these appeals is the constitutionality of the Act of September
19, 1918, providing for the fixing of minimum wages for women and children in
the
The act provides for a board of
three members, to be constituted, as far as practicable, so as to be equally
representative [*540] of employers, employees and the public. The board is authorized to have public
hearings, at which persons interested in the matter being investigated may
appear and testify, to administer oaths, issue subpoenas requiring the
attendance of witnesses and production of books, etc., and to make rules and
regulations for carrying the act into effect.
By § 8 the board is authorized --
"(1), To investigate and
ascertain the wages of women and minors in the different occupations in which
they are employed in the District of Columbia; (2), to examine, through any
member or authorized representative, any book, pay roll or other record of any
employer of women or minors that in any way appertains to or has a bearing upon
the question of wages of any such women or minors; and (3), to require from
such employer full and true statements of the wages paid to all women and
minors in his employment."
And by § 9, "to ascertain and declare, in the
manner hereinafter provided, the following things: (a), Standards of minimum wages for women in
any occupation within the District of Columbia, and-what wages are inadequate
to supply the necessary cost of living to any such women workers to maintain
them in good health and to protect their morals; and (b), standards of minimum
wages for minors in any occupation within the District of Columbia, and what
wages are unreasonably low for any such minor workers."
The act then provides (§ 10) that if the board, after investigation,
is of opinion that any substantial number of women workers in any occupation
are receiving wages inadequate to supply them with the necessary cost of
living, maintain them in health and protect their morals, a conference may be
called to consider and inquire into and report on the subject investigated, the
conference to be equally representative of employers and employees in [*541]
such occupation and of the public, and to include one or more members of
the board.
The conference is required to make
and transmit to the board a report including, among other things,
"recommendations as to standards of minimum wages for women workers in the
occupation under inquiry and as to what wages are inadequate to supply the
necessary cost of living to women workers in such occupation and to maintain
them in health and to protect their morals." § 11.
The board is authorized (§ 12) to consider and review these
recommendations and to approve or disapprove any or all of them. If it approve any recommendations it must
give public notice of its intention and hold a public hearing at which the persons
interested will be heard. After such
hearing, the board is authorized to make such order as to it may appear
necessary to carry into effect the recommendations, and to require all
employers in the occupation affected to comply therewith. It is made unlawful for any such employer to
violate in this regard any provision of the order or to employ any women worker
at lower wages than are thereby permitted.
There is a provision (§ 13) under which the board may issue a special
license to a woman whose earning capacity "has been impaired by age or
otherwise," authorizing her employment at less than the minimum wages
fixed under the act.
All questions of fact (§ 17) are to be determined by the board, from
whose decision there is no appeal; but an appeal is allowed on questions of
law.
Any violation of the act (§ 18) by an employer or his agent or by
corporate agents is declared to be a misdemeanor, punishable by fine and
imprisonment.
[***790]
Finally, after some further provisions not necessary to be stated, it is
declared (§ 23) that the purposes of the
act are "to protect the women and minors of the District [*542]
from conditions detrimental to their health and morals, resulting from
wages which are inadequate to maintain decent standards of living; and the Act
in each of its provisions and in its entirety shall be interpreted to
effectuate these purposes."
The appellee in the first case is
a corporation maintaining a hospital for children in the District. It employs a large number of women in various
capacities, with whom it had agreed upon rates of wages and compensation
satisfactory to such employees, but which in some instances were less than the
minimum wage fixed by an order of the board made in pursuance of the act. The women with whom appellee had so
contracted were all of full age and under no legal disability. The instant suit was brought by the appellee
in the Supreme Court of the District to restrain the board from enforcing or
attempting to enforce its order on the ground that the same was in
contravention of the Constitution, and particularly the due process clause of
the Fifth Amendment.
[**396]
In the second case the appellee, a woman twenty-one years of age, was
employed by the Congress Hall Hotel Company as an elevator operator, at a
salary of $35 per month and two meals a day.
She alleges that the work was light and healthful, the hours short, with
surroundings clean and moral, and that she was anxious to continue it for the
compensation she was receiving and that she did not earn more. Her services were satisfactory to the Hotel
Company and it would have been glad to retain her but was obliged to dispense
with her services by reason of the order of the board and on account of the
penalties prescribed by the act. The
wages received by this appellee were the best she was able to obtain for any
work she was capable of performing and the enforcement of the order, she
alleges, deprived her of such employment and wages. She further averred that
she could not secure any other position at which she could make a living, with [*543]
as good physical and moral surroundings, and earn as good wages, and
that she was desirous of continuing and would continue the employment but for
the order of the board. An injunction
was prayed as in the other case.
The Supreme Court of the District
denied the injunction and dismissed the bill in each case. Upon appeal the Court of Appeals by a
majority first affirmed and subsequently, on a rehearing, reversed the trial
court. Upon the first argument a justice
of the District Supreme Court was called in to take the place of one of the
Appellate Court justices, who was ill.
Application for rehearing was made and, by the court as thus
constituted, was denied. Subsequently,
and during the term, a rehearing was granted by an order concurred in by two of
the Appellate Court justices, one being the justice whose place on the prior
occasion had been filled by the Supreme Court member. Upon the rehearing thus granted, the Court of
Appeals, rejecting the first opinion, held the act in question to be unconstitutional
and reversed the decrees of the trial court.
Thereupon the cases were remanded, and the trial court entered decrees
in pursuance of the mandate, declaring the act in question to be
unconstitutional and granting permanent injunctions. Appeals to the Court of Appeals followed and
the decrees of the trial court were affirmed.
It is from these final decrees that the cases come here.
Upon this state of facts the
jurisdiction of the lower court to grant a rehearing, after first denying it,
is challenged. We do not deem it
necessary to consider the matter farther than to say that we are here dealing
with the second appeals, while the proceedings complained of occurred upon the
first appeals. That the lower court
could properly entertain the second appeals and decide the cases does not admit
of doubt; and this the appellants virtually conceded by having themselves
invoked the jurisdiction. See Rooker v.
Fidelity Trust Co., ante, 114.
[*544]
We come then, at once, to the substantive question involved.
The judicial duty of passing upon
the constitutionality of an act of Congress is one of great gravity and
delicacy. The statute here in question
has successfully borne the scrutiny of the legislative branch of the government,
which, by enacting it, has affirmed its validity; and that determination must
be given great weight. This Court, by an
unbroken line of decisions from Chief Justice Marshall to the present day, has
steadily adhered to the rule that every possible presumption is in favor of the
validity of an act of Congress until
[***791] overcome beyond rational
doubt. But if by clear and indubitable
demonstration a statute be opposed to the Constitution we have no choice but to
say so. The Constitution, by its own
terms, is the supreme law of the land, emanating from the people, the
repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand,
is the act of an agency of this sovereign authority and if it conflict with the
Constitution must fall; for that which is not supreme must yield to that which
is. To hold it invalid (if it be
invalid) is a plain exercise of the judicial power -- that power vested in
courts to enable them to administer justice according to law. From the authority to ascertain and determine
the law in a given case, there necessarily results, in case of conflict, the
duty to declare and enforce the rule of the supreme law and reject that of an
inferior act of legislation which, transcending the Constitution, is of no effect
and binding on no one. This is not the
exercise of a substantive power to review and nullify acts of Congress, for no
such substantive power exists. It is
simply a necessary concomitant of the power to hear and dispose of a case or
controversy properly before the court, to the determination of which must be
brought the test and measure of the law.
[*545]
The statute now under consideration is attacked upon the ground that it
authorizes an unconstitutional interference with the freedom of contract included
within the guaranties of the due process clause of the Fifth Amendment. That
the right to contract about one's affairs is a part of the liberty of the
individual protected by this clause, is settled by the decisions of this Court
and is no longer open to question.
Allgeyer v. Louisiana, 165 U.S. 578, 591; New York Life Insurance Co. v.
Dodge, 246 U.S. 357, 373-374; Coppage v. Kansas, 236 U.S. 1, 10, 14; Adair v.
United States, 208 U.S. 161; Lochner v.
In Adair v.
"The right of a person to
sell his labor upon such terms as he deems proper is, in its essence, the same
as the right of the purchaser of labor to prescribe the conditions upon which
he will accept such labor from the person offering to sell. . . . In all such particulars the employer and
employe have equality of right, and any legislation that disturbs that equality
is an arbitrary interference with the liberty of contract which no government
can legally justify in a free land."
In Coppage v.
"Included in the right of
personal liberty and the right of private property -- partaking of the nature
of each -- is the right to make contracts for the acquisition of property. Chief among such contracts is that of
personal employment, by which labor and other services are exchanged for money
or other forms of property. If this [*546]
right be struck down or arbitrarily interfered with, there is a
substantial impairment of liberty in the long-established constitutional
sense.The right is as essential to the laborer as to the capitalist, to the poor
as to the rich; for the vast majority of persons have no other honest way to
begin to acquire property, save by working for money.
"An interference with this
liberty so serious as that now under consideration, and so disturbing of
equality of right, must be deemed to be arbitrary, unless it be supportable as
a reasonable exercise of the police power of the State."
There is, of course, no such thing
as absolute freedom of contract. It is subject to a great variety of
restraints. But freedom of contract is,
nevertheless, the general rule and restraint the exception; and the exercise of
legislative authority to abridge it can be justified only by the existence of
exceptional circumstances. Whether these
circumstances exist in the present case constitutes the question to be
answered. It will be helpful to this end
to review [***792] some of the decisions where the interference
has been upheld and consider the grounds upon which they rest.
(1) Those dealing with statutes
fixing rates and charges to be exacted by businesses impressed with a public
interest. There are many cases, but it is sufficient to cite Munn v.
(2) Statutes relating to contracts
for the performance of public work.
Atkin v.
(3) Statutes' prescribing the
character, methods and time for payment of wages. Under this head may be
included McLean v. Arkansas, 211 U.S. 539, sustaining a state statute requiring
coal to be measured for payment of miners' wages before screening; Knoxville
Iron Co. v. Harbison, 183 U.S. 13, sustaining a Tennessee statute requiring the
redemption in cash of store orders issued in payment of wages; Erie R.R. Co. v.
Williams, 233 U.S. 685, upholding a statute regulating the time within which
wages shall be paid to employees in certain specified industries; and other
cases sustaining statutes of like import and effect. In none of the statutes thus sustained, was
the liberty of employer or employee to fix the amount of wages the one was
willing to pay and the other willing to receive interfered with. Their tendency and purpose was to prevent
unfair and perhaps fraudulent methods in the payment of wages and in no sense
can they be said to be, or to furnish a precedent for, wage-fixing statutes.
(4) Statutes fixing hours of
labor. It is upon this class that the greatest emphasis is laid in argument and
therefore, and because such cases approach most nearly the line of principle
applicable to the statute here involved, we shall consider them more at length. [**398]
In some instances [*548] the statute limited the hours of labor for
men in certain occupations and in others it was confined in its application to
women. No statute has thus far been
brought to the attention of this Court which by its terms, applied to all
occupations.In Holden v. Hardy, 169 U.S. 366, the Court considered an act of
the Utah legislature, restricting the hours of labor in mines and
smelters. This statute was sustained as
a legitimate exercise of the police power, on the ground that the legislature
had determined that these particular employments, when too long pursued, were
injurious to the health of the employees, and that, as there were reasonable
grounds for supporting this determination on the part of the legislature, its
decision in that respect was beyond the reviewing power of the federal courts.
That this constituted the basis of
the decision is emphasized by the subsequent decision in Lochner v.
Mr. Justice Peckham, speaking for
the Court (p. 56), said:
"It must, of course, be
conceded that there is a limit to the valid exercise of the police power by the
State. There is no dispute concerning
this general proposition. Otherwise the
Fourteenth Amendment [***793] would have no efficacy and the legislatures
of the States would have unbounded power, and it would be enough to say that
any piece of legislation was enacted to conserve the morals, the health or the
safety of the people; such legislation would be valid, no matter how absolutely
without foundation the claim might be.
The claim of the police power
[*549] would be a mere pretext --
become another and delusive name for the supreme sovereignty of the State to be
exercised free from constitutional restraint."
And again (pp. 57-58):
"It is a question of which of
two powers or rights shall prevail -- the power of the State to legislate or
the right of the individual to liberty of person and freedom of contract. The
mere assertion that the subject relates though but in a remote degree to the
public health does not necessarily render the enactment valid. The act must have a more direct relation, as
a means to an end, and the end itself must be appropriate and legitimate,
before an act can be held to be valid which interferes with the general right
of an individual to be free in his person and in his power to contract in
relation to his own labor."
Coming then directly to the
statute (p. 58), the Court said:
"We think the limit of the
police power has been reached and passed in this case. There is, in our judgment, no reasonable
foundation for holding this to be necessary or appropriate as a health law to
safeguard the public health or the health of the individuals who are following
the trade of a baker. If this statute be
valid, and if, therefore, a proper case is made out in which to deny the right
of an individual, sui juris, as employer or employe, to make contracts for the
labor of the latter under the protection of the provisions of the Federal
Constitution, there would seem to be no length to which legislation of this
nature might not go."
And, after pointing out the
unreasonable range to which the principle of the statute might be extended, the
Court said (p. 60):
"It is also urged, pursuing
the same line of argument, that it is to the interest of the State that its
population should be strong and robust, and therefore any legislation which may
be said to tend to make people healthy must
[*550] be valid as health laws,
enacted under the police power. If this be a valid argument and a justification
for this kind of legislation, it follows that the protection of the Federal
Constitution from undue interference with liberty of person and freedom of
contract is visionary, wherever the law is sought to be justified as a valid
exercise of the police power.Scarcely any law but might find shelter under such
assumptions, and conduct, properly so called, as well as contract, would come
under the restrictive sway of the legislature."
And further (p. 61):
"Statutes of the nature of
that under review, limiting the hours in which grown and intelligent men may
labor to earn their living, are mere meddlesome interferences with the rights
of the individual, and they are not
saved from condemnation by the claim that they are passed in the exercise of
the police power and upon the subject of the health of the individual whose
rights are interfered with, unless there be some fair ground, reasonable in and
of itself, to say that there is material danger to the public health or to the
health of the employes, if the hours of labor are not curtailed."
Subsequent cases in this Court
have been distinguished from that decision, but the principles therein stated
have never been disapproved.
In Bunting v. Oregon, 243 U.S.
426, a state statute forbidding the employment of any person in any mill,
factory or manufacturing establishment more than ten hours in any one day, and
providing payment for overtime not exceeding three hours in any one day at the
rate of time and a half of the regular wage, was sustained on the ground that,
since the state legislature and State
[**399] Supreme Court had found such
a law necessary for the preservation of the health of employees in these industries,
this Court would accept their judgment, in the absence of facts to support the
contrary conclusion. The law was
attacked [*551] on the ground that it constituted an attempt
to fix wages, but that contention was rejected and the law sustained as a
reasonable regulation of hours of service.
"And this emphasizes that
there is no question here of purely private right since the law is concerned
only with those who are engaged in a business charged with a public interest
where the subject dealt with as to all the parties is one involved in that
business and which we have seen comes under the control of the right to
regulate to the extent that the power to do so is appropriate or relevant to
the business regulated."
Moreover, in sustaining the wage
feature, of the law, emphasis was put upon the fact (p. 345) that it was in
this respect temporary "leaving the employers and employees free as to the
subject of wages to govern their relations by their own agreements after the
specified time." The act was not only temporary in this respect, but it
was passed to meet a sudden and great emergency.This feature of the law was
sustained principally because the parties, for the time being, could not or
would not agree. Here they are forbidden
to agree.
[*552]
The same principle was applied in the Rent Cases ( Block v. Hirsh, 256
U.S. 135, and Marcus Brown Holding Co. v. Feldman, 256 U.S. 170), where this
Court sustained the legislative power to fix rents as between landlord and
tenant upon the ground that the operation of the statutes was temporary to tide
over an emergency and that the circumstances were such as to clothe "the
letting of buildings . . . with a public interest so great as to justify
regulation by law." The Court said (p. 157):
"The regulation is put and
justified only as a temporary measure [citing
In a subsequent case, Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 416, this Court, after saying "We are in
danger of forgetting that a strong public desire to improve the public
condition is not enough to warrant achieving the desire by a shorter cut than
the constitutional way of paying for the change," pointed out that the
Rent Cases dealt with laws intended to meet a temporary emergency and
"went to the verge of the law."
In addition to the cases cited
above, there are the decisions of this Court dealing with laws especially
relating to hours of labor for women: Muller v. Oregon, 208 U.S. 412; Riley v.
Massachusetts, 232 U.S. 671; Miller v. Wilson, 236 U.S. 373; Bosley v.
McLaughlin, 236 U.S. 385.
In the Muller Case the validity of
an
The essential characteristics of
the statute now under consideration, which differentiate it from the laws
fixing hours of labor, will be made to appear as we proceed. It is sufficient now to point out that the
latter as well as the statutes mentioned under paragraph (3), deal with
incidents of the employment having no necessary effect upon [*554]
the heart of the contract, that is, the amount of wages to be paid and
received. A law forbidding work to
continue beyond a given number of hours leaves the parties free to contract
about wages and thereby equalize whatever additional burdens 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. Enough has been said to show that the
authority to fix hours of labor cannot be exercised except in respect of those
occupations where work of long continued duration is detrimental to
health. This Court has been careful in every
case where the question has been raised, to place its decision upon this
limited authority of the legislature to regulate hours of labor and to disclaim
any purpose to uphold the legislation as fixing wages, thus recognizing an
essential difference between the two. It
seems plain that these decisions afford no real support for any form of law
establishing minimum wages.
If now, in the light furnished by
the foregoing exceptions to the general rule forbidding legislative
interference with freedom of contract, we examine and analyze the statute in
question, we shall see that it differs from them in every material
respect. It is not a law dealing with
any business charged with a public interest or with public work, or to meet and
tide over a temporary emergency. It has
nothing to do with the character, methods or periods of wage payments. It does not prescribe hours of labor or
conditions under which labor is to be done.
It is not for the protection of persons under legal disability or for
the prevention of fraud. It is simply
and exclusively a price-fixing law, confined to adult women (for we are not now
considering the provisions relating to minors), who are legally as capable of
contracting for themselves as men. It
forbids two parties having lawful capacity -- under penalties as to the
employer -- to freely contract with one another in respect of the price
for [*555] which one shall render service to the other
in a purely private employment where both are willing, perhaps anxious, to
agree, even though the consequence may be to oblige one to surrender a
desirable engagement and the other to dispense with the services of a desirable
employee. n1 The price fixed by the
board need have no relation to the capacity or earning power of the employee, the
number of hours which may happen to constitute the day's work, the character of
the place where the work is to be done, or the circumstances or surroundings of
the employment; and, while it has no other basis to support its validity than
the assumed necessities of the employee, it takes no account of any independent
resources she may have. It is based
wholly on the opinions of the members of the board and their advisers --
perhaps an average of their opinions, if they do not precisely agree -- as to
what will be necessary to provide a living for a woman, keep her in health and
preserve her morals.It applies to any and every occupation in the District,
without regard to its nature or the character of the work.
n1 This is the exact situation in the
The standard furnished by the
statute for the guidance of the board is so vague as to be impossible of
practical application with any reasonable degree of accuracy. What is sufficient to supply the necessary
cost of living for a woman worker and maintain her in good health and protect
her morals is obviously not a precise or unvarying sum -- not even
approximately so. The amount will depend
upon a variety of circumstances: the individual temperament, habits of thrift,
care, ability to buy necessaries intelligently, and whether the woman live
alone or with her family. To those who
practice economy, a given sum will afford comfort, while to those of contrary
habit the same sum will be wholly inadequate.The cooperative economies of the
family group are not taken into account
[*556] though they constitute an
important consideration in estimating the cost of living, for it is obvious
that the individual expense will be less in the case of a member of a family
than in the case of one living alone.
The relation between earnings and morals is not capable of
standardization. It cannot be shown that
well paid women safeguard their morals more carefully than those [***796]
who are poorly paid. Morality
rests upon other considerations than wages; and there is, certainly, no such
prevalent connection between the two as to justify a broad attempt to adjust
the latter with reference to the former.
As a means of safeguarding morals the attempted classification, in our
opinion, is without reasonable basis. No
distinction can be made [**401] between women who work for others and those
who do not; nor is there ground for distinction between women and men, for,
certainly, if women require a minimum wage to preserve their morals men require
it to preserve their honesty. For these
reasons, and others which might be stated, the inquiry in respect of the
necessary cost of living and of the income necessary to preserve health and
morals, presents an individual and not a composite question, and must be
answered for each individual considered by herself and not by a general formula
prescribed by a statutory bureau.
This uncertainty of the statutory
standard is demonstrated by a consideration of certain orders of the board
already made. These orders fix the sum
to be paid to a woman employed in a place where food is served or in a
mercantile establishment, at $16.50 per week; in a printing establishment, at
$15.50 per week; and in a laundry, at $15 per week, with a provision reducing
this to $9 in the case of a beginner. If
a women employed to serve food requires a minimum of $16.50 per week, it is
hard to understand how the same woman working in a printing establishment or in
a laundry is to get on with an income lessened by from $1 to $7.50 per week. The board probably [*557]
found it impossible to follow the indefinite standard of the statute,
and brought other and different factors into the problem; and this goes far in
the direction of demonstrating the fatal uncertainty of the act, an infirmity
which, in our opinion, plainly exists.
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 other half is the
establishment of a corresponding standard of efficiency, and this forms no part
of the policy of the legislation, although in practice the former half without
the latter must lead to ultimate failure, in accordance with the inexorable law
that no one can continue indefinitely to take out more than he puts in without
ultimately exhausting the supply. The
law is not confined to the great and powerful employers but embraces those
whose bargaining power may be as weak as that of the employee. It takes no account of periods of stress and
business depression, of crippling losses, which may leave the employer himself
without adequate means of livelihood. 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 [*558]
rests upon him no peculiar responsibility, and therefore, in effect,
arbitrarily shifts to his shoulders a burden which, if it belongs to anybody,
belongs to society as a whole.
The feature of this statute which,
perhaps more than any other, puts upon it the stamp of invalidity is that it
exacts from the employer an arbitrary payment for a purpose and upon a basis
having no causal connection with his business, or the contract or the work the
employee engages to do. The declared
basis, as already pointed out, is not the value of the service rendered, but
the extraneous circumstance that the employee needs to get a prescribed sum of
money to insure her subsistence, health and morals. 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 [***797] 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. If one goes to the
butcher, the baker or grocer to buy food, he is morally entitled to obtain the
worth of his money but he is not entitled to more. If what he gets is worth what he pays he is
not justified in demanding [*559] more simply because he needs more; and the
shopkeeper, having dealt fairly and honestly in that transaction, is not
concerned in any peculiar sense with the question of his customer's
necessities. Should a statute undertake
to vest in a commission power to determine the quantity of food necessary for
individual support and require the shopkeeper, if he sell to the individual at
all, to furnish that quantity at not more than a fixed [**402]
maximum, it would undoubtedly fall before the constitutional test. The fallacy of any argument in support of the
validity of such a statute would be quickly exposed. The argument in support of that now being
considered is equally fallacious, though the weakness of it may not be so
plain. 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. But a
statute which prescribes payment without regard to any of these things and
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.
We are asked, upon the one hand,
to consider the fact that several States have adopted similar statutes, and we
are invited, upon the other hand, to give weight to the fact that three times
as many States, presumably as well informed and as anxious to promote the
health and morals of their people, have refrained from enacting such
legislation. We have also been furnished
with a large number of printed opinions approving the policy of the minimum
wage, and our own reading has disclosed a large number to the contrary. These are all proper enough for the
consideration of the lawmaking bodies, since their tendency is to establish the
desirability or undesirability of the
[*560] legislation; but they
reflect no legitimate light upon the question of its validity, and that is what
we are called upon to decide. The
elucidation of that question cannot be aided by counting heads.
It is said that great benefits
have resulted from the operation of such statutes, not alone in the District of
Finally, it may be said that if,
in the interest of the public welfare, the police power may be invoked to
justify the fixing of a minimum wage, it may, when the public welfare is
thought to require it, be invoked to justify a maximum wage.The power to fix
high wages connotes, by like course of reasoning, the power to fix low wages.
If, in the face of the guaranties of the Fifth
[*561] Amendment, this form of
legislation shall be legally justified, the field for the operation of the
police power will have been widened to a great and dangerous degree. If, for example, in the opinion of future
lawmakers, wages in the building trades shall become so high as to preclude
people of ordinary means from building and owning homes, an authority which
sustains the minimum wage will be invoked to support a maximum wage for
building [***798] laborers and artisans, and the same argument
which has been here urged to strip the employer of his constitutional liberty
of contract in one direction will be utilized to strip the employee of his
constitutional liberty of contract in the opposite direction. A wrong decision does not end with itself: it
is a precedent, and, with the swing of sentiment, its bad influence may run from
one extremity of the arc to the other.
It has been said that legislation
of the kind now under review is required in the interest of social justice, for
whose ends freedom of contract may lawfully be subjected to restraint.The
liberty of the individual to do as he pleases, even in innocent matters, is not
absolute. It must frequently yield to
the common good, and the line beyond which the power of interference may not be
pressed is neither definite nor unalterable but may be made to move, within
limits not well defined, with changing need and circumstance. Any attempt to fix a rigid boundary would be
unwise as well as futile. But,
nevertheless, there are limits to the power, and when these have been passed,
it becomes the plain duty of the courts in the proper exercise of their
authority to so declare. To sustain the
individual freedom of action contemplated by the Constitution, is not to strike
down the common good but to exalt it; for surely the good of society as a whole
cannot be better served than by the preservation against arbitrary restraint of
the liberties of its constituent members.
[*562]
It follows from what has been said that the act in question passes the
limit prescribed [**403] by the Constitution, and, accordingly, the
decrees of the court below are
Affirmed.
MR. JUSTICE BRANDEIS took no part
in the consideration or decision of these cases.
DISSENTBY:
TAFT; HOLMES
DISSENT:
MR. CHIEF JUSTICE TAFT,
dissenting.
I regret much to differ from the
Court in these cases.
The boundary of the police power
beyond which its exercise becomes an invasion of the guaranty of liberty under
the Fifth and Fourteenth Amendments to the Constitution is not easy to
mark. Our Court has been laboriously
engaged in pricking out a line in successive cases. We must be careful, it seems to me, to follow
that line as well as we can and not to depart from it by suggesting a
distinction that is formal rather than real.
Legislatures in limiting feedom of
contract between employee and employer by a minimum wage proceed on the
assumption that employees, in the class receiving least pay, are not upon a
full level of equality of choice with their employer and in their necessitous
circumstances are prone to accept pretty much anything that is offered. They are peculiarly subject to the
overreaching of the harsh and greedy employer.
The evils of the sweating system and of the long hours and low wages
which are characteristic of it are well known.
Now, I agree that it is a disputable question in the field of political
economy how far a statutory requirement of maximum hours or minimum wages may
be a useful remedy for these evils, and whether it may not make the case of the
oppressed employee worse than it was before.
But it is not the function of this Court to hold congressional acts
invalid simply because they are passed to carry out economic views which the
Court believes to be unwise or unsound.
[*563]
Legislatures which adopt a requirement of maximum hours or minimum wages
may be presumed to believe that when sweating employers are prevented from paying
unduly low wages by positive law they will continue their business, abating that part of their profits, which
were wrung from the necessities of their employees, and will concede the better
terms required by the law; and that while in individual cases hardship may
result, the restriction will enure to the benefit of the general class of
employees in whose interest the law is passed and so to that of the community
at large.
The right of the legislature under
the Fifth and Fourteenth Amendments to limit the hours of employment on the
score of the health of the employee, it seems to me, has been firmly
established. As to that, one would
think, the line had been pricked out so that it has become a well formulated
rule. In Holden v. Hardy, 169
However, the opinion herein does
not overrule the Bunting Case in express terms, and therefore I assume that the
conclusion in this case rests on the distinction between a minimum of wages and
a maximum of hours in the limiting of liberty to contract. I regret to be at variance with the Court as
to the substance of this distinction. 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 one is not any greater in essence than the other, and is of the same
kind. One is the multiplier and the
other the multiplicand.
If it be said that long hours of
labor have a more direct effect upon the health of the employee than the low
wage, there is very respectable authority from close observers, disclosed in
the record and in the literature on the subject quoted at length in the briefs,
that they are equally harmful in this regard.
Congress took this view and we can not say it was not warranted in so
doing.
[**404]
With deference to the very able opinion of the Court and my brethren who
concur in it, it appears to me to exaggerate the importance of the wage term of
the contract of employment as more inviolate than its other terms. Its conclusion seems influenced by the fear
that the [*565] concession of the power to impose a minimum
wage must carry with it a concession of the power to fix a maximum wage. This,
I submit, is a non sequitur. A line of distinction like the one under
discussion in this case is, as the opinion elsewhere admits, a matter of degree
and practical experience and not of pure logic.
Certainly the wide difference between prescribing a minimum wage and a
maximum wage could as a matter of degree and experience be easily affirmed.
Moreover, there are decisions by
this Court which have sustained legislative limitations in respect to the wage
term in contracts of employment. In
McLean v. Arkansas, 211 U.S. 539, it was held within legislative power to make
it unlawful to estimate the graduated pay of miners by weight after screening
the coal. In Knoxville Iron Co. v.
Harbison, 183 U.S. 13, it was held that store orders issued for wages must be
redeemable in cash. In Patterson v. Bank
Eudora, 190 U.S. 169, a law forbidding the payment of wages in advance was held
valid. A like case is Strathearn S.S.
Co. v. Dillon, 252 U.S. 348. While these did not impose a minimum on wages,
they did take away from the employee the freedom to agree as to how they should
be fixed, in what medium they should be paid, and when they should be paid, all
features that might affect the amount or the mode of enjoyment of them. The first two really rested on the advantage
the employer had in dealing with the employee.
The third was deemed a proper curtailment of a sailor's right of
contract 1n his own interest because of his proneness to squander his wages in
port before sailing. In Bunting v.
Oregon, supra, employees in a mill, factory or manufacturing establishment were
required if they worked over ten hours a day to accept for the three additional
hours permitted not less than fifty per cent, more than their usual wage. This
was sustained as a mild penalty imposed on the employer to enforce the
limitation as to hours; but it necessarily
[*566] curtailed the employee's
freedom to contract to work for the wages he saw fit to accept during those
three hours. I do not feel, therefore,
that either on the basis of reason, experience or authority, the boundary of
the police power should be drawn to include maximum hours and exclude a minimum
wage.
[***800]
Without, however, expressing an opinion that a minimum wage limitation
can be enacted for adult men, it is enough to say that the case before us
involves only the application of the minimum wage to women. If I am right in thinking that the legislature
can find as much support in experience for the view that a sweating wage has as
great and as direct a tendency to bring about an injury to the health and
morals of workers, as for the view that long hours injure their health, then I
respectfully submit that Muller v. Oregon, 208 U.S. 412, controls this
case. The law which was there sustained
forbade the employment of any female in any mechanical establishment or factory
or laundry for more than ten hours. This
covered a pretty wide field in women's work and it would not seem that any
sound distinction between that case and this can be built up on the fact that
the law before us applies to all occupations of women with power in the board
to make certain exceptions. Mr. Justice
Brewer, who spoke for the Court in Muller v. Oregon, based its conclusion on
the natural limit to women's physical strength and the likelihood that long
hours would therefore injure her health,
and we have had since a series of cases which may be said to have
established a rule of decision. Riley v.
Massachusetts, 232 U.S. 671; Miller v. Wilson, 236 U.S. 373; Bosley v.
McLaughlin, 236 U.S. 385. The cases covered restrictions in wide and varying
fields of employment and in the later cases it will be found that the objection
to the particular law was based not on the ground that it had general
application but because it left out some employments.
[*567]
I am not sure from a reading of the opinion whether the Court thinks the
authority of Muller v. Oregon is shaken by the adoption of the Nineteenth
Amendment. The Nineteenth Amendment did not change the physical strength or
limitations of women upon which the decision in Muller v. Oregon rests. The Amendment did give women political power and
makes more certain that legislative provisions for their protection will be in
accord with their interests as they see them.
But I don't think we are warranted in varying constitutional
construction based on physical differences between men and women, because of
the Amendment.
But for my inability to agree with
some general observations in the forcible opinion of MR. JUSTICE HOLMES who
follows me, I should be silent and merely record my concurrence in what he
says. It is perhaps wiser for me,
however, in a case of this importance, separately to give my reasons for
dissenting.
I am authorized to say that MR.
JUSTICE SANFORD concurs in this opinion.
MR. JUSTICE HOLMES, dissenting.
The question in this case is the
broad one, Whether Congress can establish minimum [**405]
rates of wages for women in the District of Columbia with due provision
for special circumstances, or whether we must say that Congress has no power to
meddle with the matter at all. To me,
notwithstanding the deference due to the prevailing judgment of the Court, the
power of Congress seems absolutely free from doubt.The end, to remove
conditions leading to ill health, immorality and the deterioration of the race,
no one would deny to be within the scope of constitutional legislation. The means are means that have the approval of
Congress, of many States, and of those governments from which we have learned
our greatest [*568] lessons.
When so many intelligent persons, who have studied the matter more than
any of us can, have thought that the means are effective and are worth the
price, it seems to me impossible to deny that the belief reasonably may be held
by reasonable men. If the law
encountered no other objection than that the means bore no relation to the end
or that they cost too much I do not suppose that anyone would venture to say
that it was bad. I agree, of course,
that a law answering the foregoing requirements might be invalidated by
specific provisions of the Constitution.
For instance it might take private property without just
compensation. But in the present
instance the only objection that can be urged is found within the vague
contours of the Fifth Amendment, prohibiting the depriving any person of
liberty or property without due process of law.
To that I turn.
The earlier decisions upon the
same words in the Fourteenth Amendment began within our memory and went no
farther than an unpretentious assertion of the liberty to follow the ordinary
callings. Later that innocuous
generality was expanded into the dogma, Liberty of Contract. Contract is not
specially mentioned in the text that we have to construe. It is merely an example of doing what you
want to do, embodied in the
[***801] word liberty. But pretty much all law consists in
forbidding men to do some things that they want to do, and contract is no more
exempt from law than other acts. Without
enumerating all the restrictive laws that have been upheld I will mention a few
that seem to me to have interfered with liberty of contract quite as seriously
and directly as the one before us. Usury
laws prohibit contracts by which a man receives more than so much interest for
the money that he lends. Statutes of
frauds restrict many contracts to certain forms. Some Sunday laws prohibit practically all
contracts during one-seventh of our whole life.
Insurance rates may be regulated.
German Alliance Insurance Co.
[*569] v. Lewis, 233 U.S. 389. (I
concurred in that decision without regard to the public interest with which
insurance was said to be clothed. It
seemed to me that the principle was general.) Contracts may be forced upon the
companies. National Union Fire Insurance
Co. v. Wanberg, 260 U.S. 71.Employers of miners may be required to pay for coal
by weight before screening. McLean v.
Arkansas, 211 U.S. 539. Employers generally may be required to redeem in cash
store orders accepted by their employees in payment. Knoxville Iron Co. v. Harbison, 183 U.S. 13.
Payment of sailors in advance may be forbidden.
Patterson v. Bark Eudora, 190 U.S. 169. The size of a loaf of bread may
be established. Schmidinger v. Chicago,
226 U.S. 578.The responsibility of employers to their employees may be
profoundly modified. New York Central
R.R. Co. v. White, 243 U.S. 188. Arizona Employers' Liability Cases, 250 U.S.
400. Finally women's hours of labor may be fixed; Muller v. Oregon, 208 U.S.
412; Riley v. Massachusetts, 232 U.S. 671, 679; Hawley v. Walker, 232 U.S. 718;
Miller v. Wilson, 236 U.S. 373; Bosley v. McLaughlin, 236 U.S. 385; and the
principle was extended to men with the allowance of a limited overtime to be
paid for "at the rate of time and one-half of the regular wage," in
Bunting v. Oregon, 243 U.S. 426.
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. I fully assent to the proposition
that here as elsewhere the distinctions of the law are distinctions of degree,
but I 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.
Muller v. Oregon, I take it, is as good law today as it was in
1908. It will [*570]
need more than the Nineteenth Amendment to convince me that there are no
differences between men and women, or that legislation cannot take those
differences into account. I should not
hesitate to take them into account if I thought it necessary to sustain this
act. Quong Wing v. Kirkendall, 223 U.S.
59, 63. But after Bunting v. Oregon, 243 U.S. 426, I had supposed that it was
not necessary, and that Lochner v. New York, 198 U.S. 45, would be allowed a
deserved repose.
[**406]
This statute does not compel anybody to pay anything. It simply forbids employment at rates below
those fixed as the minimum requirement of health and right living. It is safe to assume that women will not be
employed at even the lowest wages allowed unless they earn them, or unless the
employer's business can sustain the burden.
In short the law in its character and operation is like hundreds of
so-called police laws that have been upheld.
I see no greater objection to using a Board to apply the standard fixed
by the act than there is to the other commissions with which we have become
familiar, or than there is to the requirement of a license in other cases. The fact that the statute warrants
classification, which like all classifications may bear hard upon some
individuals, or in exceptional cases, notwithstanding the power given to the
Board to issue a special license, is no greater infirmity than is incident to
all law. But the ground on which the law
is held to fail is fundamental and therefore it is unnecessary to consider
matters of detail.
[***802]
The criterion of constitutionality is not whether we believe the law to
be for the public good. We certainly
cannot be prepared to deny that a reasonable man reasonably might have that
belief in view of the legislation of Great Britain, Victoria and a number of
the States of this Union. The belief is
fortified by a very remarkable collection of documents submitted on behalf of
the appellants, material here, I conceive, only as showing that the [*571]
belief reasonably may be held. In
Australia the power to fix a minimum for wages in the case of industrial
disputes extending beyond the limits of any one State was given to a Court, and
its President wrote a most interesting account of its operation. 29 Harv. Law Rev. 13. If a legislature should
adopt what he thinks the doctrine of modern economists of all schools, that
"freedom of contract is a misnomer as applied to a contract between an
employer and an ordinary individual employee," ibid. 25, I could not
pronounce an opinion with which I agree impossible to be entertained by
reasonable men. If the same legislature
should accept his further opinion that industrial peace was best attained by
the device of a Court having the above powers, I should not feel myself able to
contradict it, or to deny that the end justified restrictive legislation quite
as adequately as beliefs concerning Sunday or exploded theories about
usury. I should have my doubts, as I
have them about this statute -- but they would be whether the bill that has to
be paid for every gain, although hidden as interstitial detriments, was not
greater than the gain was worth: A matter that it is not for me to decide.
I am of opinion that the statute
is valid and that the decree should be reversed.