ment ordinance was passed, the prevailing wage was $1.85 for a ten, nine, or eight-hour day. There was no evidence whatever as to any distinction in pay by reason of shorter hours, nor any evidence whatever that compensation for employment was ever computed by the hour. The contractor testified that 59 per cent of the cost of the work was paid out for common labor, and that, but for the ordinance, his bid would have been materially less.

The position taken by the appellant, as stated in the original opinion, and as adhered to in the briefs and argument on rehearing, is admirably summarized as follows:

"That the legislature may fix the hours of labor upon all public works and for public work even in cities is now well settled, and no allusion to sustaining authority will be made. Indeed, that feature of the case is not challenged by appellant; but it is contended that, where the city is acting merely as an agent of the property owner, it is bound to do its work to his best advantage, and cannot empirically fix a wage and compel its payment by an independent contractor. Appellant bases his argument on two propositions: (1) that the ordinance is unreasonable, contrary to public policy, and oppressive; (2) that the assessment is in contravention of the constitution of this state and of the constitution of the United States, in that it takes the property of this appellant without compensation and without due process of law. Abandoning legal phraseology, the concrete question, put in plain English, is whether a city can improve the property of a citizen, either upon his petition or against his will, and tax an arbitrary sum therefor that puts the cost unreasonably above the cost of like work if done through the instrumentality of a private agency." Malette v. Spokane, 68 Wash. 578.

The last sentence quoted seems to beg, rather than state, the real question. Of course, if the minimum wage is assumed to be unreasonably high, it would be indefensible on any theory, whether fixed by general statute or by ordinance, and whether paid out of a fund raised by general taxation or by special assessment. The real questions are: (1) Is it within the power of any legislative body, whether of the state or city, to fix a minimum wage for common labor as applied to public work paid for by special assessment? In other words, is such legislation void as in contravention of the state and Federal constitutions in that it takes property without compensation and without due process of law? (2) Is the ordinance in question contrary to any public policy of the state, either expressed in, or implied from, state

legislation? (3) Is the ordinance an unreasonable exercise of the right to prescribe the terms of contract by one of the parties, or is the amount prescribed an unreasonable wage? We will endeavor to discuss these questions, so far as may be, separately.

I. Is it within the legislative power, either of state or city, to prescribe a higher rate of wages than the prevailing rate as a minimum of wages to be paid for common labor in the doing of a public work to be paid for by special assessments against the property specially benefited thereby? The principal argument directed against such laws, when enacted by the state itself, is the claim that they necessarily increase the cost of the work. If, therefore, laws having exactly the same tendency have been upheld, such decisions furnish direct authority for upholding a frank and undisguised minimum wage law. As stated in the original opinion, it is now too well settled to require citation of authority that the legislature may fix the hours of labor upon all public work and for public work, even in cities. It is also true, as there stated, that "laws fixing the hours of labor and providing that no less than the going rate of wages shall be paid under contracts such as we have before us, have been generally upheld." To put the matter more exactly, we add that laws fixing the hours of labor have been generally upheld by the courts, even when coupled with the provision that the laborer shall receive for the shorter day prescribed a minimum of wages "not less than the current rate of per diem wages in the locality where the work is performed." Obviously this is a provision for pay above the "going rate of wages" for the same amount of time. In re Dalton, 61 Kan. 257; State v. Atkin, 64 Kan. 174; Atkin v. Kansas, 191 U. S. 207; Byars v. State, 2 Okl. Cr. 481..

It is too plain for argument that every maximum-hours law prescribing less than the number of hours usually constituting a day's labor, when coupled with a provision for minimum pay not less than the current rate for a day's labor, is a minimum wage law, pure and simple, prescribing a wage above the current rate for the same class of labor. Every objection, therefore, which can be logically or legally raised against an undisguised minimum wage law can be advanced, just as logically and just as legally, against the usual eight-hour law. The appellant seems to recognize the fact, since he argues that there are only two grounds upon which courts have held valid laws limiting the hours of labor; that one applies to work hazardous to the health of the employees, as working in mines, mills and the like which, of course, rests upon the police power of the state (Holden v. Hardy,

169 U. S. 366), or where the employee is a child or woman, which also rests upon the same power (State v. Buchanan, 29 Wash. 602; State v. Somerville, 67 Wash. 638); and that the other exception is based upon the principle that, when the state or any of its municipalities performs public work, it then, as an employer, has the right to fix the terms upon which it will permit labor to be done for it. As examples of the last mentioned class of decisions, appellant cites Atkin v. Kansas, supra; Curtice v. Schmidt, 202 Mo. 703, and our own decisions, In re Broad, 36 Wash. 449, and Gies v. Broad, 41 Wash. 448. . . . .

[The court examines these cases at some length.]

It is thus plain that there is ample authority to be found, both in state and Federal decisions, to sustain the power of the legislative body, either of the state or of the city, to prescribe a reasonable minimum of wages, even above the going rate for common labor performed on public work, and even when the work is to be paid for by special assessments against the property benefited thereby, and the courts have no power to pass upon the wisdom of the measure.

The foregoing authorities make it clear that, if street improvement work paid for by special assessments is public work, performed under authority conferred by the sovereign power of the state, no constitutional guaranty is impaired by the ordinance in question. That such work is public work cannot be questioned. The power of the city to levy special assessments to pay for public work is referable solely to the sovereign power of taxation, delegated to it by the state under direction of the constitution, art. 7, 9; . . .

II. It is contended that, even conceding the power of the state to adopt a minimum of wages to be paid to laborers on public works carried on through the agency of its municipalities, still the city has no such power. It is argued that the ordinance is void because it seeks to declare a matter of public policy. . . .

The eight-hour law manifests a public policy on the part of the state to better the condition of laborers employed upon public work. The purpose of the minimum wage ordinance is precisely the same, and the policy which sustains the one warrants the other. We fail to find where the ordinance in question is contrary to any public policy of the state, either as declared or implied in any statutory enactment. On the contrary, it is in accord with the policy which underlies the eight-hour law. . . .

III. Finally, it is urged that the ordinance is unreasonable, and, in

its last analysis, the opinion on the first hearing rests upon the initial assumption that any minimum of wages materially above the prevailing rate is unreasonable per se. With this we cannot agree. The reasonableness of an ordinance is always open to review by the court where it is passed under the general powers of the city and not in direct response to a statutory direction; but, even in such cases, the ordinance is entitled to a presumption of reasonableness until the contrary is made to appear to the court in some manner. .

[In considering the reasonableness of the ordinance the court cites the conclusions of the commissioner of labor of the state that wages had failed to keep pace with prices. No testimony to the contrary had been presented. In view of this the court feels that it cannot hold $3 a day to be an unreasonable sum for supporting a family.]

The judgment of the lower court is affirmed. . [Gose, Mount, and Chadwick, J.J., dissented.]

QUESTIONS

1. Is there not an essential difference between a law which prescribes the maximum length of a day's labor and incidentally affects the wages paid, and one which directly fixes a minimum wage?

2. Do you think the general reasoning of Atkin v. Kansas is broad enough to establish the constiutionality of the Spokane ordinance?

3. "If the city may fix a minimum wage largely in excess of the current wage, it may, with a like consistency, fix a minimum price for all material that enters into public work, for the larger part of the cost of most material is human labor." Do you agree?

4. Is it not the effect of the ordinance to deprive the owner of property against which the assessment is levied of property without due process of law contrary to Amendment XIV?

5. If the ordinance had fixed the wage at $20 a day, would the court have sustained it?

6. Could the ordinance be sustained as an exercise of the police power? 7. Could a state legislature by statute constitutionally provide that not less than $5 a day be paid for work done by common laborers on public work, whether they are in the employ of the state, a county, city or town thereof, or of a contractor?

8. A New York law provides that the wages to be paid to laborers working on, about, or upon public work or upon any material to be used upon or in connection therewith shall be equal to the rate of wages prevailing in the locality where the public work is situated. A contractor engaged in the construction of a public building in New York City sublets the granite work to a Maine company which paid its workmen $3 a day, the prevailing rate in Maine, though the prevailing rate for the same work in New York was $5. Has the law been violated?

9. If Congress should insert in the Federal Highway Act a provision that aid shall only be given to state projects in which not less than $4 a day is paid for all work done, would it be constitutional?

10. Is there a statue in your state regulating wages paid for public work? If so, are there any important decisions under it?

D. REGULATION OF WAGES PAID FOR WORK AFFECTED WITH A PUBLIC INTEREST

WILSON v. NEW

United States Supreme Court. 1917. 243 U. S. 332.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court:

Was there power in Congress, under the circumstances existing, to deal with the hours of work and wages of railroad employees engaged in interstate commerce, is the principal question here to be considered. Its solution, as well as that of other questions which also arise, will be clarified by a brief statement of the conditions out of which the controversy arose.

Two systems controlled in March, 1916, concerning wages of railroad employees; one, an eight-hour standard of work and wages with additional pay for overtime, governing on about 15 per cent of the railroads; the other, a stated mileage task of 100 miles to be performed during ten hours, with extra pay for any excess, in force on about 85 per cent of the roads. The organizations representing the employees of the railroads in that month made a formal demand on the employers that, as to all engaged in the movement of trains, except passenger trains, the 100-mile task be fixed for eight hours, provided that it was not so done as to lower wages, and provided that an extra allowance for overtime, calculated by the minute at one and one-half times the rate of the regular hours' service, be established. The demand made this standard obligatory on the railroads, but optional on the employees, as it left the right to the employees to retain their existing system on any particular road if they elected to do so.

The employers refused the demand, and the employees, through their organizations, by concert of action, took the steps to call a general strike of all railroad employees throughout the whole country.

The President of the United States invited a conference between the parties. He proposed arbitration. The employers agreed to it and the employees rejected it. The President then suggested the eight-hour