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 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. It follows from what has been said that the act in question passes the limit prescribed 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. [Taft, C.J., and Holmes and Sanford, JJ., dissented.] QUESTIONS 1. Compare the reasoning quoted from Lochner v. New York with that of the Oregon court in State v. Bunting, p. 461, supra. Are the two cases reconcilable? 2. Does the court successfully distinguish Bunting v. Oregon from Lochner v. New York? 3. Does it successfully distinguish Wilson v. New from the principal case? 4. "Laws fixing hours of labor . . . . deal with incidents of the employment having no necessary effect upon the heart of the contract; that is, the amount of wages to be paid and received." "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." Which statement is right? 5. Are you satisfied with the demonstration of the court that Muller v. Oregon is not good authority for upholding the minimum wage law? 6. Are you satisfied with the distinction between a minimum wage law and one dealing with the character, methods, and time of payment of wages? 7. Why should the rule of Muller v. Oregon be affected by the lessening of the inequality between the sexes "culminating in the 19th Amendment"? 8. What is the relevancy of reports of investigators, opinions of experts, and so forth, as to the harmfulness of low wages or the value of a legal minimum wage? 9. Does the court adhere strictly to the rule that it is for the legislature to pass upon the wisdom or policy of an act? 10. Does a "concession of the power to impose a minimum wage carry with it a concession of the power to fix a maximum wage"? II. "If Congress may regulate wages for women, it may by the exercise of the same power establish the wages to be paid men." Do you agree? 12. "In principle, there can be no difference between the case of selling labor and the case of selling goods." Do you agree? 13. How does the statute in this case differ from that in Holcombe v. Creamer? 14. Compare the two types of statutes from the standpoint of practical effectiveness, waiving the question of constitutionality. 15. Do you think the Federal Supreme Court, as constituted in the principal case, would have held the Massachusetts act constitutional? 16. Would the Massachusetts court have sustained the federal law of the principal case? 17. Would an act of Congress forbidding the employment of women within the District of Columbia at less than a dollar a day be constitutional? 18. Discuss the probable attitude of the Supreme Court, as constituted in the principal case, towards the flat rate laws of Arizona, Arkansas, and Utah described in § VIII, E, I, (a) supra. 19. Have the courts gone farther in permitting legislation fixing hours of labor than that regulating wages? Why? 20. Does the question whether a particular restriction upon the right of a given class to contract is constitutional or not depend upon public opinion as to the desirability of the restriction? 21. A state law creates a Court of Industrial Relations, and provides that whenever a controversy shall arise between employers and employees engaged in certain industries, if it appears to the court that the controversy may endanger the continuity or efficiency of service of the industry involved, the court shall have power to investigate the controversy and make such findings and order as may be necessary to preserve the public peace and settle the controversy. The industries brought within the act are those engaged in the manufacture or preparation of food products, clothing and wearing apparel, production of fuel, the transportation of food products, clothing and fuel, and public utilities. Is the act constitutional? 22. Is there in your state a wage board law of the mandatory type? Has its constitutionality been tested in the courts of your state? Will it be affected by the decision in the principal case? 23. A state minimum wage law adopts the following standard: "No wage paid or agreed to be paid by any employer to any adult female shall be oppressive; any wage lower than a reasonable and adequate compensation for the services rendered shall be deemed oppressive and is hereby prohibited." Is it invalid under the rule of the Adkins case? 24. What is the effect of the Adkins decision upon minimum wage laws for children? 2. THE STANDARD FOR THE MINIMUM WAGE 9(a) Definition of the Living Wage. Nearly all the American laws define in general terms the principle to be followed in fixing wages, which is usually that of a living wage. In a majority of the laws phrases such as "the necessary cost of proper living" and "to maintain the health and welfare" are used.10 In working out wage standards on this basis, the English practice of leveling up wages to those paid by the best employer in a trade in a given district is obviously not a sufficient guide. Then, too, since the laws apply only to women and minors, relative standards for the two sexes need not be considered, as in Australia. One finds, however, America on the whole using the Australian standard for women workers-namely, the cost of living of the entirely self-supporting woman. American employers have sometimes asked that the help received by many women workers from their families be taken into account in fixing the standard, but this request has been denied. . . . . But even under the highest wage awards strict construction has been placed by most wage boards upon the term "necessary cost of living." As a matter of fact, the budget, like the wage rate which it determines, is a compromise. The representatives of the employees present their budget and their proposal for a rate based on it; the representatives of the employers do likewise, and the two forces contend until they come to some agreement on a rate. The budget is then worked out to fit their rate. 9 Reprinted from The Principles of Labor Legislation by Commons and Andrews by permission of the publishers, Harper & Bros., 1920 Ed., pp. 200-204. 10 California, Laws 1913, c. 324. (b) Wage Losses from Unemployment. In fixing standards for minimum wages, the question of regularity of employment is of great importance. Whether or not a worker can secure steady employment in a given industry is the factor which determines whether the "living wage" prescribed in an award provides a "living income" throughout the year. Until recently the problem has received but little attention in America," many of the awards thus far made being sufficient only for the needs of the current week. As no provision is made for savings, a girl who receives the minimum wage must run into debt or deny herself necessaries if she loses her position. Yet many low-paid industries whose wage rates are affected by minimum wage awards are notably irregular, as for example candy-making and paper-box making. In Massachusetts, in Oregon, and in Washington, however, wage losses from unemployment have been given some attention by wage boards. (c) Profits of the Business. An important question likely to arise when wage standards are fixed is whether or not the financial condition of the industry should be taken into account. Most often the problem comes up in connection with the struggling business which claims it cannot survive if its workers are paid a living wage. The issue here is the lowering of the standard of wages in order to secure the continued existence of such an industry. But such a concession enables an industry to flourish without paying the whole cost of maintenance of those whose time and services it uses. Its workers must be partly supported by the earnings of others, who are thus practically subsidizing the underpaying industry. Such a trade has well been called “parasitic," since its existence depends on the bounty of others. It may be that other members of the woman's family (and the better-paying occupations in which they are employed) make up the deficit in her income; it may be that society as a whole pays the bill for the physical and moral deterioration of the workers by its expenditures for hospitals, charities, and reformatories. Most American statutes, through the stipulation that the minimum wage shall cover the cost of living, take the same stand. In Colorado and Massachusetts, however, "the financial condition of the business" is to be considered side by side with the cost of living. In Massachusetts, in the temporary award for the brush industry, this resulted in fixing a minimum less than a living wage. The cost of living for a 11 See Andrews, Irene Osgood, "The Relation of Irregular Employment to the Living Wage for Women," in Fourth Report of the New York Factory Investigating Commission, pp. 497-635; also in American Labor Legislation Review, June, 1915, pp. 287-418. self-supporting woman was found to be over $8 weekly. But on account of the condition of the business the commission was obliged to make the hourly rate for the first year so low that women could earn only about $7 weekly unless they obtained more than the usual amount of work.12 In retail stores also the wage board believed the necessary cost of living to be "as much as and probably somewhat above" the minimum recommended, but held that "the schedule of wages adopted is as high as the retail stores of the state will be able to pay until industrial and business conditions shall have shown a marked improvement."13 A consideration of the prosperity of the industry may thus retard the process of raising the wage to the necessary minimum or even at times overthrow the whole principle of the living wage. QUESTIONS 1. If the purpose of minimum wage legislation is to secure a living wage to the beneficiaries thereof, why should the financial condition of the business be taken into account? 2. To what extent are the standards for a minimum wage subjective rather than objective? 3. In one jurisdiction it is the practice "to level the wage for the whole trade in each district up to the standard of the best employer in that district." In another the standard is "the normal needs of the average employee regarded as a human being living in a civilized community." Which do you prefer and why? 4. Would it be practicable to have a minimum wage scale which varied with the rise and fall of a cost-of-living index curve? 12 Second Annual Report of the Minimum Wage Commission of Massachusetts, p. II. 13 Massachusetts Minimum Wage Commission, Statement and Decree Concerning the Wages of Women in Retail Stores in Massachusetts, 1915, p. 3. |