MULLER, PLAINTIFF IN ERROR, v. THE
STATE OF OREGON.
No. 107.
SUPREME COURT OF THE UNITED STATES
208 U.S. 412; 28 S. Ct. 324; 1908 U.S. LEXIS 1452; 52 L. Ed. 551
Argued January 15, 1908.
February 24, 1908, Decided
PRIOR HISTORY: [***1]
[omitted]
OPINIONBY: BREWER
OPINION: [*416] [**324] MR. JUSTICE
BREWER delivered the opinion of the court.
On February 19, 1903, the legislature of the State of Oregon passed an act
(Session [***9] Laws, 1903, p. 148), the first section of which is
in these words:
"SEC. 1. That no female (shall) be employed in any mechanical
establishment, or factory, or laundry in this State more than ten hours during
any one day. The hours of work may be so arranged as to permit the employment
of females [*417] at any time so that they shall not work more than
ten hours during the twenty-four hours of any one day."
Section 3 made a violation of the provisions of the prior sections a
misdemeanor, subject to a fine of not less than $10 nor more than $25. On
September 18, 1905, an information was filed in the Circuit Court of the State
for the county of Multnomah, charging that the defendant "on the 4th day
of September, A.D. 1905, in the county of Multnomah and State of Oregon, then
and there being the owner of a laundry, known as the Grand Laundry, in the city
of Portland, [**325] and the employer of females therein, did then
and there unlawfully permit and suffer one Joe Haselbock, he, the said Joe
Haselbock, then and there being an overseer, superintendent and agent of said
Curt Muller, in the said Grand Laundry, to require a female, to wit, one Mrs.
E. Gotcher, to work more [***10] than ten hours in said laundry on
said 4th day of September, A.D. 1905, contrary to the statutes in such cases
made and provided, and against the peace and dignity of the State of
Oregon."
A trial resulted in a verdict against the defendant, who was sentenced to pay a
fine of $10. The Supreme Court of the State affirmed the conviction, State v.
Muller, 48 Oregon, 252, whereupon the case was brought here on writ of error.
The single question is the constitutionality of the statute under which the
defendant was convicted so far as it affects the work of a female in a laundry.
That it does not conflict with any provisions of the state constitution is
settled by the decision of the Supreme Court of the State. The contentions of
the defendant, now plaintiff in error, are thus stated in his brief:
"(1) Because the statute attempts to prevent persons, sui juris, from
making their own contracts, and thus violates the provisions of the Fourteenth
Amendment, as follows:
"'No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process
[***11] of law; nor deny to any person within its jurisdiction the
equal protection of the laws.'
[*418] "(2) Because the statute does not apply equally to all
persons similarly situated, and is class legislation.
"(3) The statute is not a valid exercise of the police power. The kinds of
work proscribed are not unlawful, nor are they declared to be immoral or
dangerous to the public health; nor can such a law be sustained on the ground
that it is designed to protect women on account of their sex. There is no
necessary or reasonable connection between the limitation prescribed by the act
and the public health, safety or welfare."
It is the law of Oregon that women, whether married or single, have equal
contractual and personal rights with men. As said by Chief Justice Wolverton,
in First National Bank v. Leonard, 36 Oregon, 390, 396, after a review of the
various statutes of the State upon the subject:
"We may therefore say with perfect confidence that, with these three
sections upon the statute book, the wife can deal, not only with her separate
property, acquired from whatever source, in the same manner as her husband can
with property belonging to him, but that she may make [***12]
contracts and incur liabilities, and the same may be enforced against her, the
same as if she were a femme sole. There is now no residuum of civil disability
resting upon her which is not recognized as existing against the husband. The
current runs steadily and strongly in the direction of the emancipation of the
wife, and the policy, as disclosed by all recent legislation upon the subject
in this State, is to place her upon the same footing as if she were a femme
sole, not only with respect to her separate property, but as it affects her
right to make binding contracts; and the most natural corollary to the
situation is that the remedies for the enforcement of liabilities incurred are
made coextensive and coequal with such enlarged conditions."
It thus appears that, putting to one side the elective franchise, in the matter
of personal and contractual rights they stand on the same plane as the other
sex. Their rights in these respects can no more be infringed than the equal
rights of their brothers. We held in Lochner v. New York, 198 U.S. 45, that
[*419] a law providing that no laborer shall be required or
permitted to work in a bakery more than sixty hours in a week or
[***13] ten hours in a day was not as to men a legitimate exercise
of the police power of the State, but an unreasonable, unnecessary and
arbitrary interference with the right and liberty of the individual to contract
in relation to his labor, and as such was in conflict with, and void under, the
Federal Constitution. That decision is invoked by plaintiff in error as
decisive of the question before us. But this assumes that the difference
between the sexes does not justify a different rule respecting a restriction of
the hours of labor.
In patent cases counsel are apt to open the argument with a discussion of the
state of the art. It may not be amiss, in the present case, before examining
the constitutional question, to notice the course of legislation as well as
expressions of opinion from other than judicial sources. In the brief filed by
Mr. Louis D. Brandeis, for the defendant in error, is a very copious collection
of all these matters, an epitome of which is found in the margin. n1
n1 The following legislation of the States impose restrictions in some form or
another upon the hours of labor that may be required of women: Massachusetts:
chap. 221, 1874, Rev. Laws 1902, chap. 106, § 24; Rhode Island: 1885, Acts and
Resolves 1902, chap. 994, p. 73; Louisiana: § 4, Act 43, p. 55, Laws of 1886,
Rev. Laws 1904, vol. 1, p. 989; Connecticut: 1887, Gen. Stat. revision 1902, §
4691; Maine: chap. 139, 1887, Rev. Stat. 1903, chap. 40, § 48, p. 401; New
Hampshire: 1887, Laws 1907, chap. 94, p. 95; Maryland: chap. 455, 1888, Pub.
Gen. Laws 1903, art. 100, § 1; Virginia: p. 150,1889-1890, Code 1904, tit. 51A,
chap. 178A, § 3657b; Pennsylvania: No. 26, p. 30, 1897, Laws 1905, No. 226, p.
352; New York: Laws 1899, § 1, chap. 560, p. 752, Laws 1907, chap. 507, § 77,
subdiv. 3, p. 1078; Nebraska: 1899, Comp. Stat. 1905, § 7955, p. 1986;
Washington: Stat. 1901, chap. 68, § 1, p. 118: Colorado: Acts 1903, chap. 138,
§ 3, p. 310; New Jersey: 1892, Gen. Stat. 1895, p. 2350, §§ 66, 67; Oklahoma:
1890, Rev. Stat. 1903, chap. 25, art. 58, § 729; North Dakota: 1877, Rev. Code
1905, § 9440; South Dakota: 1877, Rev. Code (Penal Code, § 764), p. 1185; Wisconsin:
§ 1, chap. 83, Laws of 1867, Code 1898, § 1728; South Carolina: Acts 1907, No.
233, p. 487.
In foreign legislation Mr. Brandeis calls attention to these statutes: Great
Britain: Factories Act of 1844, chap. 15, pp. 161, 171; Factory and Workshop
Act of 1901, chap. 22, pp. 60, 71; and see 1 Edw. VII, chap. 22. France, 1848;
Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus, 1848;
Federal Law 1877, art. 2, § 1. Austria, 1855; Acts 1897, art. 96a, §§ 1-3.
Holland, 1889; art. 5, § 1. Italy, June 19, 1902, art. 7. Germany, Laws 1891.
Then follow extracts from over ninety reports of committees, bureaus of
statistics, commissioners of hygiene, inspectors of factories, both in this
country and in Europe, to the effect that long hours of labor are dangerous for
women, primarily because of their special physical organization. The matter is
discussed in these reports in different aspects, but all agree as to the
danger. It would of course take too much space to give these reports in detail.
Following them are extracts from similar reports discussing the general
benefits of short hours from an economic aspect of the question. In many of
these reports individual instances are given tending to support the general
conclusion. Perhaps the general scope and character of all these reports may be
summed up in what an inspector for Hanover says: "The reasons for the
reduction of the working day to ten hours -- (a) the physical organization of
women, (b) her maternal functions, (c) the rearing and education of the
children, (d) the maintenance of the home -- are all so important and so far
reaching that the need for such reduction need hardly be discussed."
[***14]
[*420] [**326] While there have been but few decisions
bearing directly upon the question, the following sustain the constitutionality
of such legislation: Commonwealth v. Hamilton Mfg. Co., 120 Massachusetts, 383;
Wenham v. State, 65 Nebraska, 394, 400, 406; State v. Buchanan, 29 Washington,
602; Commonwealth v. Beatty, 15 Pa. Sup. Ct. 5, 17; against them is the case of
Ritchie v. People, 155 Illinois, 98.
The legislation and opinions referred to in the margin may not be, technically
speaking, authorities, and in them is little or no discussion of the
constitutional question presented to us for determination, yet they are
significant of a widespread belief that woman's physical structure, and the
functions she performs in consequence thereof, justify special legislation
restricting or qualifying the conditions under which she should be permitted to
toil. Constitutional questions, it is true, are not settled by even a consensus
of present public opinion, for it is the peculiar value of a written
constitution that it places in unchanging form limitations upon legislative
action, and thus gives a permanence and stability to popular government which
otherwise would be lacking. [***15] At the same time, when a
question of fact is debated and debatable, and the extent to [*421]
which a special constitutional limitation goes is affected by the truth in
respect to that fact, a widespread and long continued belief concerning it is
worthy of consideration. We take judicial cognizance of all matters of general
knowledge.
It is undoubtedly true, as more than once declared by this court, that the general
right to contract in relation to one's business is part of the liberty of the
individual, protected by the Fourteenth Amendment to the Federal Constitution;
yet it is equally well settled that this liberty is not absolute and extending
to all contracts, and that a State may, without conflicting with the provisions
of the Fourteenth Amendment, restrict in many respects the individual's power
of contract. Without stopping to discuss at length the extent to which a State
may act in this respect, we refer to the following cases in which the question
has been considered: Allgeyer v. Louisiana, 165 U.S. 578; Holden v. Hardy, 169
U.S. 366; Lochner v. New York, 198 U.S. 45.
That woman's physical structure and the performance of maternal functions place
her at a disadvantage [***16] in the struggle for subsistence is
obvious. This is especially true when the burdens of motherhood are upon her.
Even when they are not, by abundant testimony of the medical fraternity
continuance for a long time on her feet at work, repeating this from day to
day, tends to injurious effects upon the body, and as healthy mothers are
essential to vigorous offspring, the physical well-being of woman becomes an
object of public interest and care in order to preserve the strength and vigor
of the race.
Still again, history discloses the fact that woman has always been dependent
upon man. He established his control at the outset by superior physical
strength, [**327] and this control in various forms, with
diminishing intensity, has continued to the present. As minors, though not to
the same extent, she has been looked upon in the courts as needing especial
care that her rights may be preserved. Education was long denied her, and while
now the doors of the school room are opened and her opportunities for acquiring
knowledge are great, yet even with that and the [*422] consequent
increase of capacity for business affairs it is still true that in the struggle
for subsistence [***17] she is not an equal competitor with her
brother. Though limitations upon personal and contractual rights may be removed
by legislation, there is that in her disposition and habits of life which will
operate against a full assertion of those rights. She will still be where some
legislation to protect her seems necessary to secure a real equality of right.
Doubtless there are individual exceptions, and there are many respects in which
she has an advantage over him; but looking at it from the viewpoint of the
effort to maintain an independent position in life, she is not upon an
equality. Differentiated by these matters from the other sex, she is properly
placed in a class by herself, and legislation designed for her protection may
be sustained, even when like legislation is not necessary for men and could not
be sustained. It is impossible to close one's eyes to the fact that she still
looks to her brother and depends upon him. Even though all restrictions on
political, personal and contractual rights were taken away, and she stood, so
far as statutes are concerned, upon an absolutely equal plane with him, it
would still be true that she is so constituted that she will rest upon
[***18] and look to him for protection; that her physical structure
and a proper discharge of her maternal functions -- having in view not merely
her own health, but the well-being of the race -- justify legislation to
protect her from the greed as well as the passion of man. The limitations which
this statute places upon her contractual powers, upon her right to agree with
her employer as to the time she shall labor, are not imposed solely for her
benefit, but also largely for the benefit of all. Many words cannot make this
plainer. The two sexes differ in structure of body, in the functions to be
performed by each, in the amount of physical strength, in the capacity for
long-continued labor, particularly when done standing, the influence of
vigorous health upon the future well-being of the race, the self-reliance which
enables one to assert full rights, and in the capacity to maintain the struggle
for subsistence. This difference [*423] justifies a difference in
legislation and upholds that which is designed to compensate for some of the
burdens which rest upon her.
We have not referred in this discussion to the denial of the elective franchise
in the State of Oregon, for while [***19] it may disclose a lack of
political equality in all things with her brother, that is not of itself
decisive. The reason runs deeper, and rests in the inherent difference between
the two sexes, and in the different functions in life which they perform.
For these reasons, and without questioning in any respect the decision in
Lochner v. New York, we are of the opinion that it cannot be adjudged that the
act in question is in conflict with the Federal Constitution, so far as it
respects the work of a female in a laundry, and the judgment of the Supreme
Court of Oregon is
Affirmed.